DAKSHABEN DINESHBHAI PATEL Vs. DINESHBHAI BHULABHAI PATEL

JUDGEMENT

(1.) This petition is filed by the petitioner for a writ of Habeas Corpus and/or any other appropriate writ, order or direction calling upon respondents Nos. 1, 3 and 4 to produce the petitioner's daughter Rakhee and son Nayan and to give custody thereof to her.

(2.) To appreciate the real controversy in question, necessary facts may now be briefly stated. It is the case of the petitioner (Dakshaben) that she is a permanent resident of Lenasia, Transwal. The first respondent-Dineshbhai was born at Johannesburg and is also a citizen of South Africa. Said Dineshbhai married to the petitioner on 13/03/1984 through the Court of Lenasia, South Africa. After the marriage, both the petitioner as well as the first respondent were staying together at Johannesburg as wife and husband and during the wedlock, the petitioner gave birth to a daughter Rakhee on 18/12/1984 and a son Nayan on 24/05/1986. According to the petitioner, all of them went to U. K. for a pleasure trip in the year 1988 and during their stay at London differences arose between the parties which compelled the petitioner to move the principal Registry of the family division of the High Court of Justice, (hereinafter referred to as 'the British Court'), for care and control of her minor children Rakhee and Nayan under the Supreme Court Act, 1987 and the Guardianship of Minors Acts, 1971 and 1973 of England. In those proceedings the British Court passed an order on 22/02/1988 and granted leave to the first respondent to remove the minors permanently from the jurisdiction of the said Court. It is her allegation that under the guise of the said order, the first respondent removed the children beyond the reach of the petitioner and came to India and since then he has been staying in India at village Paradia in Navsari Taluka in the State of Gujarat and is having illegal custody of Rakhee and Nayan.

(3.) According to the petitioner, she returned to Johannesburg and started residing with her parents. She had no funds to come to India and so she joined service for raising funds so as to enable her to come to India, where respondent No. 1 was residing with the minor children. It is her case that she made attempts to reconcile the matrimonial home and also to get the custody of the minor children but she failed. In August 1990, she came to know about that respondent No. 1 has already re-married one Sharmila Patel on 21/07/1990 and thereafter there was no question of re-union between the petitioner and the respondent No. 1 and she tried to get the custody of the minor children from the first respondent. Having failed, she has approached this Court by filing this petition in December 1990 for the reliefs mentioned hereinabove.