MANDY JANE COLLINS Vs. JAMES MICHAEL COLINS

JUDGEMENT

(1.) Heard. BY the present petition, the petitioner is seeking issuance of writ in the nature of habeas corpus for production, release and return of her minor daughter by name Ella karina Collins from the respondent No. 1, in order to enable the petitioner to take her to Ireland.

(2.) It is the case of the petitioner that the petitioner is a permanent resident of ireland and a British citizen holding a permanent passport of the United Kingdom. She arrived in India on 18-9-2005 specifically to seek the custody, care and control of her minor daughter Ella, who is aged about 8 years and who is presently at House no. 1784, Mazalvaddo, Anjuna, Bardez, goa, with her father. The petitioner was married to the respondent No. 1 on 6-6-1998 and Ella was born on 5-7-1997 in england and she is also a British national. The respondent No. 1 is from the United states of America. It is her further case that ella started her preliminary education at coars National School in Ireland. The petitioner is employed as an English teacher and is a permanent resident of Ireland. The respondent No. 1 owned a house in Washington state where he used to reside and had his business in Settle, U. S. A. However, as of now he is not pursuing any business activity and presently is living in Goa in the said house referred to above. It is her further case that consequent to the marriage they stayed for different period of tunes in the U. S. A. and the U. K. , besides spending some time in India and other countries for holidays. However, due to irreconcilable differences, they parted company of each other in November, 2000, but have not yet obtained any divorce decree to dissolve their marriage. After Ella attended her school in ireland in June, 2004, there were vacations in the months of July and August and during those holidays, the respondent No. 1 took Ella to Switzerland and from there to india in September, 2004. Initially, the respondent No. 1 took Ella to a Dharmashala in Himachal Pradesh and then in November, 2004 the respondent No. 1 brought Ella to Goa. Towards the end of November, 2004 he got Ella admitted to Mater Dei Educational institution at Saligao, Goa, in IInd standard and after the break in April-June, 2005, Ella was detained in the same standard. It is her grievance that inspite of persistent efforts on her part, the respondent no. 1 refused to return Ella to Ireland. The petitioner has been aiming and working to see all along that Ella should continue her education in Ireland. Presently, the child has lost considerable weight and does not enjoy some of the medical facilities which would be available to her in Ireland. She does not have the emotional and mental support of her mother which is necessary for upbringing an eight year old child. Besides that, ella is not in her natural surrounding. All the efforts to negotiate with the respondent No. 1, even with the intervention of strangers and friends, have failed. It is her case that the climate, environment, surrounding, family support, mother's love, affection, schooling and all the other necessary ingredients are available only in Ireland and the respondent No. 1 has U. S. Passport of Ella on which he brought her to india and which is also in his custody. The petitioner is the best person to look after and maintain the child of 8 years in Ireland and the welfare of the minor being of paramount consideration, the child's custody should be given to the petitioner. The petitioner is also a well-qualified teacher and leads a stable life in Ireland. The respondent no. 1 is over 62 years of age and living alone and cannot provide the necessary care for an 8 year old girl. In the interest of justice, therefore, the custody of the minor girl should be ordered to be given to the petitioner, along with her passport which is in the custody of the respondent No. 1.

(3.) On the other hand, while raising preliminary issue regarding the non-maintainability of the Writ Petition in the nature of habeas corpus for seeking the custody of the minor child on account of alternative and efficacious remedy for such relief being available in the Civil Court in goa, it is the case of the respondent No. 1 that the petitioner has suppressed material facts while approaching the Court and on that count also the petition deserves to be dismissed. It is his further case that the petitioner and the respondent No. 1 came for the first time in Goa after their marriage in the month of December, 1996 and stayed at Anjuna till March, 1997. The petitioner and the respondent were staying, after their marriage, in the U. S. A. and the petitioner even became eligible for a Green-card as a permanent American resident status, in or about November, 1999. The petitioner and the respondent together returned to India in October, 2000 and toured various places in North India and thereafter along with the child came to Goa in November, 2000, when the petitioner decided to separate from the respondent and informed the said fact to the petitioner on or about 11-11-2000 while they were in New Delhi. Consequently, the petitioner and the respondent commenced residing separately at Anjuna from november, 2000 onwards till March, 2001. At the same time, Ella also used to stay occasionally with her mother. The petitioner was staying in a single room while the respondent no. 1 has hired a house for residence. Their child Ella was staying on a week-to-week basis at both the places. Ella proceeded along with the petitioner in March, 2001 to the U. K. while the respondent proceeded to the U. S. A. In or about June, 2001, the petitioner came to the United states with Ella and contacted the respondent with whom Ella was residing till September, 2001, when the petitioner took her back to the United Kingdom, with the consent of the respondent, while the petitioner completed a degree in the English language teaching at Settle University. In terms of the agreement between the parties, both came to Goa in November, 2001 since by that time the respondent desired to make goa as a permanent home. The petitioner and the respondent shared the company of their minor child from November, 2001 till may, 2002 and during the said period the child was residing with the respondent and even undertook long holidays to Himachal pradesh and the other parts of North India. Some time in June, 2002, with the consent of the respondent, the petitioner took Ella to the United Kingdom and visited Ireland till August, 2002 on condition that Ella would return to Goa in September, 2002. At that time, the petitioner was seen residing in the company of one person by name dave. In September, 2002 the petitioner informed her inability to come to Goa and again in October, 2002 informed that she would come to Goa in November, 2002, when she actually came to Goa. Ella then began to reside with the respondent No. 1. The petitioner used to visit Ella on and off while residing in a room at Anjuna. During the said period, a common friend by name barbara attempted to mediate about the custody of Ella between the petitioner and the respondent and it was agreed that the child should commence school in Goa from november, 2002 since she would have by then completed 6 years of age and accordingly Ella commenced her education at rainbow CLCC Co-operative Centre for Children at Anjuna since November, 2002. The petitioner, as agreed, took Ella to Ireland in march, 2003 and the respondent No. 1 collected his child Ella from the petitioner in july, 2003 and after visiting the child's maternal grandparents, uncle, aunt and cousins in the United Kingdom and after a stay of two months in the United Kingdom, at the house of the respondent's elder daughter, returned to India in September, 2003. In or about November, 2003, the petitioner returned to Goa and commenced staying at Palolem Beach, Canacona, salcete-Goa, at a distance of over 80 kms. from the respondent's residence. She stayed there upto March, 2004 and occasionally used to visit Ella as well as used to take ella out to Palolem Beach to spend some time with her. In March, 2004 the parties agreed that the petitioner shall take Ella with her for holiday to the United Kingdom and Ireland since Ella had holidays from school. Ella stayed with the petitioner till august, 2004 when the respondent No. 1 collected Ella from the United Kingdom and after visiting relations in the United Kingdom returned to Goa in October, 2004 along with Ella who was then by 7 years of age. She was then admitted to Mater Dei Education institution at Saligao in November, 2004. This fact was informed in advance to the petitioner. The said school is an ICSE school (Delhi Board) with very high standard of education and founded since 1909. It is a reputed school in North Goa. Since october, 2004 the child Ella has been permanently residing at the respondent's residence in House No. 1784, Mazalvaddo, anjuna, Bardez, Goa and had never been in the custody of the petitioner throughout this period. The petitioner came back to india in late November, 2004 and stayed in palolem upto March, 2005. The petitioner left Goa for the United Kingdom some time in March, 2005 and again returned to Goa on 18-9-2005 along with her friend Stuart. The petitioner had been visiting the child at the respondent's residence and even taking her out for meals or to stay at her room at Anjuna. Even after filing of the petition, she had been visiting the child in the residence of the respondent, without difficulty. There had been exchanges of messages in october, 2005 which would reveal the above facts. The child is growing in a most conducive atmosphere. She attends her regular routine of going to school by school bus, returns home at lunch hours and after completing her homework, she regularly plays and spends time with the respondent as well as the friends of her age in the locality of the respondent's house. The reply filed by the respondent refers to details of the arrangement made by the respondent for the welfare of the child and for her upbringing.