The bench of Justice SC Sharma emphasized that “welfare of the child is of paramount importance” based on the family law principle and the issue whether a Habeas Corpus petition is maintainable in respect of minor child custody was examined.
“A writ petition for issuance of a writ in nature of Habeas Corpus under article 226 of the Constitution of India in the peculiar facts and circumstances of the case is certainly maintainable. Otherwise also, keeping in view the welfare of the child and other factors including interaction with the child, this court is of the opinion that the child has to be in the custody of mother”held the Court.
Background of the Case
The mother of a 2 year old boy- born in and a citizen of the United States filed the Writ petition for child custody.
An ex-parte restraint order had been obtained by the Petitioner’s husband against her from an American Court, forcing her to move out of her matrimonial house and return to her parents’ home in Indore, India.
Soon, theson was left by the Petitioner’s husband at his parents’ (the child’s grandparents’) house in Gwalior, and a Power of Attorney and Authorization in the favour of his parents, to look after the child was executed by the child’s father.
Seeking child custody the Petitioner had accordingly moved to the High Court.
A habeas corpus petition is not maintainable in matters of child custody contended the in laws of the Petitioner, being the Respondents.
The Court was disinclined to “throw away” the Petitioner in case of child custody on the ground of jurisdiction or on the ground of alternative remedy available under the Guardians and Wards Act, 1890.
“It is true that the child is a US citizen, however, the mother is an Indian citizen and she does have the legal right guaranteed under the Constitution of India to file a writ petition under Article 226 and to pray issuance of a writ in the nature of Habeas Corpus,” addedthe court.
Case of Capt. DushyantSomal v. SushmaSomal, (1981) 2 SCC 277 was considered, whereby the Supreme Court had allowed a writ in the nature of Habeas Corpus with a direction for giving the child custody to the petitioner thereinthe court.
“The child is aged about two years and this Court keeping in view Section 6 of Hindu Minority and Guardianship Act, 1956 is of the opinion that the child has to be given in the custody of the mother” Observed the Court in the present case.
In case the parties desire to approach the Civil Court under the Guardians and Wards Act, 1890 they may do so, the court clarified.
“The Civil Court shall be free to decide the matter without being influenced by the order passed by this Court keeping in view the statutory provisions in respect of visitation rights of father / grandparents,” pondered the bench.
The Petitioner’s right to child custody is not to be precluded by restraint order passed by American court.
Franklin County Common Pleas Court, Division of Domestic Relations, Columbus, Ohio (USA), granted the injunction against Petitioner, not beingentitled to the child’s custody; contented the Respondents.
The bench rejected the argument and held that the said ex-parte injunction order nowhere restrained the mother from meeting the child or for child custody . Further, no order was placed on record which directed the father to havethe custody of the child.
“There is no such injunction order granted by any Court situated in United States of America directing custody of child to be with the father. The so called injunction order is also an ex-parte order. The injunction order nowhere mentions anything about the child. The husband might have obtained injunction against wife in respect of domestic violence i.e. Domestic Violence Civil Protection Order (CPO ex-parte) but it is certainly not an order in respect of the custody of the child and therefore, the so called civil protection order does not help the grand parents in any manner”Observed the Court.
The child was extremely fond of his mother expressed the court and remarked,
“Nothing equals a mother’s love. Mother love for his child cannot be described in words. It is beyond the boundaries provided by law and that is the reason the Hon’ble Supreme Court has held that the welfare of the child is of paramount importance in the matters relating to the custody of children.”
In matters of child custody, Power of Attorney and Authorization becomes irrelevant.
The Power of Attorney and Authorization was an “unheard concept” in Indian courts, the Court held.
“In India there is a prescribed procedure for appointment of guardians under the Guardians and Wards Act, 1890. The procedure adopted by the husband of the petitioner, empowering the grand parents to keep the child based upon some Power of Attorney is unheard-of. It does not create any right in favour of respondents No.4 and 5,” court observed.
The court allowed the writ petition and stated that since the child in custody matter question is a US citizen, the US Embassy and the Union Ministry of External Affairs is be intimated about the order, respectively.
“The Ministry of External Affairs, Government of India / Competent Authority shall pass necessary orders from time to time for extension of Visa of the child, if so required, in accordance with law. The petitioner shall make available the whereabouts of the child to the US Embassy as and when required or any other information required by the US Embassy in the matter,”concluded the court.
Case Title: AnushreeGoyal v. State of Madhya Pradesh &Ors.
Case No.: WP No. 7739/2020
Quorum: Justice SC Sharma
Appearance: Advocate Hitesh Sharma (for Petitioner); Additional Advocate General PushyamitraBhargav (for State); Advocate RS Chhabra (for Respondents)
Read the Judgment here: