SHABAAN ROTKIN Vs. SHAHIDA ROTKIN

JUDGEMENT

(1.) The petitioner has sought a direction on the Officer in charge of Navsari Police Station to trace out the respondents nos.1 and 2 along with his two children, namely, daughter Nabeelah and son Yaseen claiming custody of these children. According to the petitioner he and the respondent no.1, Shahida married on 11/07/1990 as per the Islamic rites. At that time the respondent no.1 was an Indian citizen. Thereafter, due to marriage she became a citizen of Botswana following the petitioner's citizenship. According to the petitioner a daughter and a son were born during the marriage and they are 8 and 4 years of age respectively. Some differences arose between the parties, as a result of which according to the petitioner the respondent no.1 left his house along with their two children. The petitioner learnt that they had crossed the border of that country. The petitioner, therefore, went to Johannesburg in South Africa, which is an adjoining country and filed a petition for restraining them from leaving that country. Since they could not be traced out that petition became infructuous.

(2.) The petitioner, thereafter, went back to Botswana and applied for the custody of his two minor children. The High Court of the Republic of Botswana issued rule nisi on 30/04/1999 making it returnable on 14th May 1999 calling upon the present respondent, Shahida to show cause as to why she should not be restrained from removing the two minor children from Botswana to India or to any other place without the applicant's written consent and as to why the applicant should not be granted the custody of the two minor children. The proposed order was directed to operate as an interim interdict pending the return day. An affidavit in support of that application was filed by the petitioner. In that affidavit also it was stated that the respondent, Shahida together with the children was seen at Jan Smuts Airport and therefore the petitioner drove to Johannesburg to make inquiries with the Airlines, but the respondent, Shahida and the children could not be traced. On an allegation that the petitioner believed that the respondent, Shahida and her children may have come back to Botswana and were hiding from him, he moved this application. It appears that by an order dated 3rd May 1999, the Court comprising of the Honourable Mr. Justice Gittings in his sitting held at Lobatse, ordered the matter to be heard as an urgent application dispensing with forms and rules of service of process and directing that the rule be published in Mmegi newspaper. Thereafter, on 14th May 1999, the Honourable Mr. P. Collins, Ag. J at Lobatse, on hearing the applicant's Attorney extended the rule nisi to 1 1/06/1999, ordering publication of the rule nisi and the order to be effected once in a newspaper circulating nationally in the Republic of South Africa. Thereafter, on 11th June 1999, Honourable Mr. P. Collins, Ag. J. at Lobatse, on hearing the applicant's Attorney and having read the documents filed in the record, ordered that the respondent Shahida was restrained from removing the two minor children from Botswana to India or to any other place without the applicant's consent and directed that the applicant be granted custody of the minor children. Copies of these orders are annexed to the petition. The marriage certificate is also annexed showing that the marriage between the petitioner and the respondent Shahida had taken place at Navsari on 11/07/1990. It is on the strength of the ex parte order obtained by the petitioner on 11/06/1999 from the High Court of Botswana that the petitioner has pursued the matter here for claiming the custody of the minor children.

(3.) Notice was issued on the respondent no.1 Shahida, who was earlier not traceable, but has appeared today through her counsel, who has made oral submissions on the basis of the record.