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2023 DIGILAW 809 (BOM)

Ketaki Gokhale v. State of Goa

2023-03-24

M.S.KARNIK, M.S.SONAK

body2023
ORDER : M.S. Karnik, J. 1. The present Writ Petition under Article 226 of the Constitution of India is preferred by the Petitioner-mother seeking production and restoration of permanent custody of the minor child aged about 4 years in her favour in terms of Section 6 of the Hindu Minority and Guardianship Act, 1956, wherein it is specified that ordinarily the mother should have the custody of the minor child, who is below the age of five years. It is the case of the Petitioner that her minor son is presently separated from her and that his best interest, lies in the care and custody of the mother. The Petitioner alleges that Respondent No.2 i.e. father of the minor child, has detained him in violation and contravention to the laws of India. 2. A custody Petition is pending trial before the Superior Court of California, County of Sonoma. The parties are presently within the jurisdiction of this Court. The Petitioner prays that in the interim, the custody be restored to her in accordance with laws in India and following the precedents laid down by the Hon'ble Supreme Court of India and those of this Court. 3. The Petitioner and Respondent No.2 are citizens of United States of America and holders of Overseas Citizen of India card (OCI, for short). The Petitioner married the Respondent No.2 on 17th July, 2017 at California, United States of America as per the local laws applicable in the State of California. The child was born on 19th February, 2019 in Paris. The Petitioner and the minor child reached Bangalore, during December, 2020 as the father of Respondent No.2, who was a Bangalore resident, had passed away in Brooklyn, New York, USA. Thereafter, the Petitioner and Respondent No.2 had planned for a vacation in Goa, India, in January, 2021. Due to the pandemic, the Petitioner had been working remotely. 4. It is the Petitioner's case that the Respondent No.2 has been inflicting violence upon her and her minor child since 2019 both physically and mentally. She says to have been treated with utmost cruelty at the hands of the Respondent No.2. On 16th July, 2022, the Petitioner along with her minor son had to flee to the United States of America for her safety and safety of her child as Respondent No.2 was violent and extremely abusive physically, sexually, verbally and emotionally. She says to have been treated with utmost cruelty at the hands of the Respondent No.2. On 16th July, 2022, the Petitioner along with her minor son had to flee to the United States of America for her safety and safety of her child as Respondent No.2 was violent and extremely abusive physically, sexually, verbally and emotionally. Due to the domestic violence and repeated physical assault, the Petitioner was constrained to file for a legal separation on 18th July, 2022, which is presently pending adjudication before the Superior Court of California, County of Sonoma. In the meantime, the Respondent No.2 had filed an application seeking custody of the minor son before the Superior Court of California, County of Sonoma on 26th August, 2022. The Petitioner filed an application seeking custody of the minor son before the same Court on 29th August, 2022. The matter is pending trial and the next date is listed as 3rd July, 2023. 5. It is then stated by the Petitioner that she was shocked to discover that the Respondent No.2 has with material concealment filed a Civil Miscellaneous Application No. 138 of 2022 on 12th August, 2022 titled “Anand Chandani vs. Ketaki Gokhale” before the Civil Judge, Junior Division Civil Court at Mapusa, Goa, seeking a declaration as a legal 'guardian' of the minor son under Section 7(1) read with Section 8(a) of the Guardians and Wards Act 1890 and permanent custody. The Petitioner filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) that the minor child was not an 'ordinary resident' of India. An objection was raised that at the time of institution of the Petition, as prescribed under Section 9 of the Guardians and Wards Act, 1890, the Petition is not maintainable and is liable to be dismissed. The same is pending adjudication. 6. The Superior Court of California vide Order dated 14th October, 2022, has granted temporary exparte custody of the minor child to the Respondent No.2. By Order dated 17th October, 2022, permission to transport the child to India was granted. The Petitioner preferred an Appeal against the Order dated 14th and 17th October 2022 before the State of California, 1st Appellate District, Division One. By Order dated 17th October, 2022, permission to transport the child to India was granted. The Petitioner preferred an Appeal against the Order dated 14th and 17th October 2022 before the State of California, 1st Appellate District, Division One. By an Order dated 4th November 2022, the Appellate Court stayed the Orders dated 14th October, 2022 and 17th October, 2022 permitting the Respondent no.2 to transport the minor son from the State of California, United States of America to India. However, the Court of Appeal by the Order dated 7th December, 2022, vacated/dissolved its Order dated 4th November, 2022. The Order dated 14th and 17th October 2022, stood restored. 7. Pursuant thereto, the Respondent No.2 travelled with the minor child to India and is presently at Bangalore. The Petitioner has, therefore, prayed that the minor child be produced and permanent custody of the minor son be handed over to her. 8. The learned Senior Advocate for the Petitioner submitted that as the minor child is below the age of five years, the custody should be with the mother. It is submitted that the Respondent No.2 has acted in utter disregard to the best interest of the minor child. She submitted that as per Section 6 of the Hindu Minority and Guardianship Act, 1956, and in the light of the authoritative pronouncements of the Supreme Court of India and those of the High Courts, in respect of the minor child below the age of five years, his mother is the natural and legal guardian. It is submitted that the minor child is not keeping well and has been almost continuously sick since he left the care and custody of the mother in August, 2022. It is submitted that in the Petition under Article 226 of the Constitution of India, seeking production of the minor child, this Court can direct the Respondent No.2 to hand over the custody of the minor child to the mother. Learned Senior Advocate was at pains to point out that the issue of custody of the minor child has to be dealt with as per the laws prevalent in India. It is further submitted that merely because the Respondent No.2 has approached the Foreign Court and obtained interim Orders, is no ground to refuse relief to the Petitioner if otherwise the Courts in India are competent to grant the relief. It is further submitted that merely because the Respondent No.2 has approached the Foreign Court and obtained interim Orders, is no ground to refuse relief to the Petitioner if otherwise the Courts in India are competent to grant the relief. Learned Senior Advocate relied upon the decision in Ruchi Majoo vs. Sanjeev Majoo, (2011) 6 SCC 479 and Richa Bhasin vs. Commissioner of Police & Ors., 1999 SCC OnLine Del 945 in support of her submission. Learned Senior Advocate then invited our attention to the photographs and the report of the Counselor to submit that in the course of visitation rights given to her pursuant to the directions of the Foreign Court, the minor child was very happy to be in her company. Learned Senior Advocate submitted that the child needs the mother. It is further submitted that the Petitioner has filed DV proceedings before the Court of Judicial Magistrate First Class at Mapusa, for various reliefs including maintenance and that of residence. It is submitted that despite notice issued by the Judicial Magistrate First Class to the Respondent No.2 to appear before the Court on 18th March, 2023, the Respondent No.2 failed to appear. Learned Senior Advocate also relied upon the decision of the Hon'ble Supreme Court in the case of Rajiv Bhatia vs. Govt. of NCT Delhi & Ors., (1999) 8 SCC 525 in support of the Petitioner's plea that custody be given to the mother, whereas the visitation rights could be provided for the father. 9. On the other hand, learned Senior Advocate Ms. Agni, opposing the Petition, submitted that the minor child is in lawful custody of the Respondent No.2. Our attention is invited to the Orders passed by the Foreign Court granting interim custody to the Respondent no.2. It is submitted that the Respondent No.2 is always willing to abide by the directions of the Foreign Court regarding visitation rights granted in favour of the Petitioner. She submitted that Respondent no.2's father was not keeping well and for some other personal issues, that the Respondent no.2 had to rush to Bangalore. It is submitted that the proceedings have been filed before the Civil Judge, Junior Division seeking declaration that the Respondent No.2 is the legal guardian of the minor son. It is submitted that the issue of interim custody can be decided by the Court competent in Goa. It is submitted that the proceedings have been filed before the Civil Judge, Junior Division seeking declaration that the Respondent No.2 is the legal guardian of the minor son. It is submitted that the issue of interim custody can be decided by the Court competent in Goa. Our attention is invited to the affidavit in reply filed on behalf of the Respondent No.2. It is the contention of learned Senior Advocate that it is the Petitioner who had unlawfully taken the minor child from Goa to the United States of America which compelled the Respondent no.2 to file appropriate proceedings before the Foreign Court. Learned Senior Advocate relied upon the decision of the Hon'ble Supreme Court in the case of Tejaswini Gaud & Ors. vs. Shekhar Jagdish Prasad Tewari & Ors., (2019) 7 SCC 42 , the decision of this Court in the case of Joshayet Kapuar & anr. vs. Gunjan Bakshi & 2 Ors., in Writ Petition No. 1780 of 2021(F) decided on 20.09.2021, of which one of us (M. S. Sonak, J), was a member in support of her submissions. 10. Heard learned Senior Advocates. We do not wish to burden our decision with the detailed analysis of the submissions made by learned Senior Advocates. Suffice it to observe that the Petitioner and the Respondent No.2 are locked in a custody battle of their minor son. The parties are both United State Nationals and OCI card holders of India. During the Covid pandemic period, the couple had come to India along with their minor son. They were staying at Goa. Differences arose between the couple. It is alleged by the Respondent No.2 that the Petitioner unlawfully took away the minor child to the United States of America without informing the Respondent No.2. The Petitioner, on the other hand, contends that it was for the safety and the best interest of the child that he had to be taken away hurriedly to US. Respondent No.2 filed proceedings before the Foreign Court. The interim custody was handed over to him. Visitation rights were provided for in favour of the Petitioner. The Petitioner challenged the interim Order before the competent Appellate Court in the Foreign country. The Respondent No.2 was handed over the custody of the minor child by the Foreign Court and also permitted him to travel along with the child to India. Visitation rights were provided for in favour of the Petitioner. The Petitioner challenged the interim Order before the competent Appellate Court in the Foreign country. The Respondent No.2 was handed over the custody of the minor child by the Foreign Court and also permitted him to travel along with the child to India. The Petitioner is pursuing her remedies for setting aside the custody granted in favour of the Respondent No.2 before the Foreign Court. 11. The Respondent No.2 has filed a Petition on 12th August, 2022 before the Civil Judge, Senior Division, Mapusa, for declaration as a legal guardian and permanent custody of the minor son to him. An objection was raised by the Petitioner that the Civil Judge, Senior Division is not competent to entertain the custody Petition. The couple and the child are now in India. The Petitioner is residing in Goa. The Respondent No.2 and the minor child is presently at Bangalore. The Petitioner has filed a complaint before the Judicial Magistrate First Class at Mapusa, Goa under the provisions of the Domestic Violence Act, for protection Orders. 12. We thus find that there are proceedings pending before the Foreign Court as well as before the Courts in Goa. 13. Learned Senior Advocate for the Petitioner was at pains to urge that considering the child is below 5 years of age, the Petitioner should get the custody of the minor child. It is further urged that this Court can in the exercise of powers under Article 226 of the Constitution of India, restore the custody to the Petitioner which she is legitimately claiming as a mother. No doubt, the Supreme Court in Ruchi Majoo vs. Sanjiv Majoo (supra), has held that nothing prevents the High Court from embarking upon a detailed enquiry in cases where the welfare of a minor is in question, which is the paramount consideration for the Court while exercising its parents patriae jurisdiction. We must bear in mind that this Court can invoke its extra ordinary jurisdiction to determine the validity of the detention, in cases that fall within its jurisdiction and may also issue orders as to custody of the minor depending upon how the court views the rival claims, if any, to such custody. We must bear in mind that this Court can invoke its extra ordinary jurisdiction to determine the validity of the detention, in cases that fall within its jurisdiction and may also issue orders as to custody of the minor depending upon how the court views the rival claims, if any, to such custody. We must also be conscious of the observations of the Hon'ble supreme Court in paragraphs 60 and 61 of Ruchi Majoo vs. Sanjiv Majoo (supra), which read thus : “60. In cases arising out of proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There is thus a significant difference between the jurisdictional facts relevant to the exercise of powers by a writ court on the one hand and a court under the Guardians and Wards Act on the other. 61. Having said that we must make it clear that no matter a court is exercising powers under the Guardians and Wards Act it can choose to hold a summary enquiry into the matter and pass appropriate orders provided it is otherwise competent to entertain a petition for custody of the minor under Section 9(1) of the Act. This is clear from the decision of this Court in Dhanwanti Joshi v. Madhav Unde [ (1998) 1 SCC 112 ], which arose out of proceedings under the Guardians and Wards Act. The following passage is in this regard apposite: (SCC pp. 125-26, para 30) “30. We may here state that this Court in Elizabeth Dinshaw v. Arvand M. Dinshaw [ (1987) 1 SCC 42 : 1987 SCC (Cri) 13] while dealing with a child removed by the father from USA contrary to the custody orders of the US Court directed that the child be sent back to USA to the mother not only because of the principle of comity but also because, on facts— which were independently considered—it was in the interests of the child to be sent back to the native State. There the removal of the child by the father and the mother's application in India were within six months. There the removal of the child by the father and the mother's application in India were within six months. In that context, this Court referred to H. (Infants), In re [ (1966) 1 WLR 381 : (1966) 1 All ER 886 (CA)] which case, as pointed out by us above has been explained in L (Minors), In re [ (1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)] as a case where the court thought it fit to exercise its summary jurisdiction in the interests of the child. Be that as it may, the general principles laid down in McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942 (PC)] and J v. C [ 1970 AC 668 : (1969) 2 WLR 540 : (1969) 1 All ER 788 (HL)] and the distinction between summary and elaborate inquiries as stated in L (Minors), In re [ (1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)] are today well settled in UK, Canada, Australia and the USA. The same principles apply in our country. Therefore nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984—even assuming that the earlier orders passed in India do not operate as constructive res judicata.” 14. Then in paragraph 63, Their Lordships observed thus : “63. We have while dealing with Question 1 above held that the court at Delhi was in the facts and circumstances of the case competent to entertain the application filed by the appellant. What needs to be examined is whether the High Court was right in relying upon the principle of comity of courts and dismissing the application. Our answer is in the negative. The reasons are not far to seek. The first and foremost of them being that “comity of courts” principle ensures that foreign judgments and orders are unconditionally conclusive of the matter in controversy. This is all the more so where the courts in this country deal with matters concerning the interest and welfare of minors including their custody. Interest and welfare of the minor being paramount, a competent court in this country is entitled and indeed duty-bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication. Interest and welfare of the minor being paramount, a competent court in this country is entitled and indeed duty-bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication. The decisions of this Court in Dhanwanti Joshi [ (1998) 1 SCC 112 ], and Sarita Sharma [ (2000) 3 SCC 14 : 2000 SCC (Cri) 568] cases clearly support that proposition. 15. In the decision relied by the learned Senior Advocate in the case of Richi Bhasin vs. Commissioner of Police & Ors. (supra), we find that the High Court of Delhi asked the Civil Court to make a report with regard to the question as to which of the parties was in legal custody of the children and which of the party should be entitled to custody of the children keeping in view their interest. 16. At this juncture, we may profitably refer to the decision of the Supreme Court in the case of Tejaswini Gaud & Ors. vs. Shekhar Jagdish Prasad Tewari & Ors. (supra) in which Their Lordships at paragraph 19 held thus : “19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law. 17. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law. 17. We must therefore bear in mind the principle that Habeas Corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. Furthermore, the principle has to be kept in mind that in child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. Thus, in child custody matter, the writ of Habeas Corpus is maintainable where it is proved that the detention of a minor child by a parent was illegal and without any authority of law. 18. We may also refer with profit to paragraph 20 of the decision of the Supreme Court in Tejaswini Gaud & Ors. vs. Shekhar Jagdish Prasad Tewari & Ors. (supra), which reads thus : “20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.” 19. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.” 19. Keeping these principles in mind, in the present case, it is seen that the Respondent No.2 is in custody of the minor child pursuant to an interim order passed by the Foreign Court. The parties are US Nationals. They had subjected themselves to the jurisdiction of the Foreign Court and the Respondent no.2 had even filed an Appeal challenging the interim Order passed by the Foreign Court granting custody in favour of the Respondent No.2. The custody of the minor child was handed over to the Respondent No.2 pursuant to the Orders of the Foreign Court and even the Petitioner had subjected herself to the jurisdiction of the Foreign Court. It is not her case that the Foreign Court did not have jurisdiction or that she was not heard or for that matter, the Foreign Court is incompetent to entertain the custody proceedings. It is the submission that the parties are governed by the Indian laws as well and hence the Orders passed by the Foreign Court will not preclude this Court making an order of custody in the interest of the minor child in conformity with the Indian laws. The custody of the Respondent No.2 cannot be said to be illegal or unlawful. Further more, considering that the Respondent No.2 has already initiated proceedings invoking the ordinary remedy under the Guardian and Wards Act, 1890, seeking custody, which is an effective remedy, we do not propose to hand over the custody of the minor child to the Petitioner at this stage, in this Petition. Even the parties agree that the Courts in India can decide the issue of custody and that the order of the Foreign Court need not influence such decision. The insistence of learned Senior Advocate for the Petitioner is that custody be handed to the Petitioner in this Petition instead of relegating the Petitioner to the Civil Court. 20. We, therefore, decline to entertain the Petition for reasons more than one. The learned Senior Advocate for the parties submitted that the parties are willing to subject themselves to appropriate Orders that may be passed by the competent Court in Goa. 20. We, therefore, decline to entertain the Petition for reasons more than one. The learned Senior Advocate for the parties submitted that the parties are willing to subject themselves to appropriate Orders that may be passed by the competent Court in Goa. The learned Senior Advocate for the Petitioner indicated that as the Petitioner is subjecting herself to the jurisdiction of the Court here, she would not even insist proceeding with the matter in the Foreign Court. 21. The learned Senior Advocate for the Respondent No.2 submitted that custody Petition has already been filed by him before the Civil Judge, Senior Division at Mapusa. Proceedings under the Domestic Violence Act are initiated by the Petitioner before the J.M.F.C. The remedy before the competent Court i.e. Civil Judge Senior Division as regards custody is effective and efficacious. The Respondent No.2 is in custody of the minor child pursuant to the Order passed by the Foreign Court since 12th August, 2022. The Respondent No.2 alleges that the child is presently in Bangalore Learned Senior Advocate for the Respondent no.2 submitted that the child will be brought back to Goa within one week and there is no objection on his part to abide by the visitation rights as provided by the Foreign Court. Allegations and counter allegations are made by the parties against each other which will have to be gone into by the competent fact finding Court. The relations between the parties are strained. The minor child needs his parents. From the record, prima facie, it appears that the child is comfortable with either of the parent. The concern expressed by the learned Senior Advocate for the Petitioner that under the provisions of law, in the best interest of the child having regard to the fact that he is below the age of five years, the custody should be with the mother, can also be addressed by the competent Civil Court. 22. The learned Senior Advocates have agreed to submit themselves to the jurisdiction of the competent Civil Court in Goa i.e. Civil Judge, Senior Division for taking a decision on the custody of the minor child including passing Orders on the interim custody. 22. The learned Senior Advocates have agreed to submit themselves to the jurisdiction of the competent Civil Court in Goa i.e. Civil Judge, Senior Division for taking a decision on the custody of the minor child including passing Orders on the interim custody. It is fairly submitted that the pendency of proceedings in the Foreign Court or the interim Orders passed by the Foreign Court, shall not be a factor influencing the decision of the Civil Judge, Senior Division in the matter of child custody. The learned Senior Advocate for the Respondent No.2 has agreed for the visitation rights in terms of what has been granted by the Foreign Court. It is further submitted that within a period of one week, from 18th March 2023, the child will be brought back to Goa. The learned Senior Advocate, on instructions of the Petitioner, undertakes that when the minor child is handed over to her in terms of the order passed, she shall not remove the child from the jurisdiction of Goa State without the leave of the Trial Court. This, without prejudice to her submissions, that the custody be handed over to her and the Respondent No.2 be given the visitation rights. 23. Though we are not inclined to grant the relief prayed for in this Petition, we are, however, inclined to provide for the visitation rights to the Petitioner including overnight access over the weekend as an interim measure till such time the application for interim custody is decided by the Trial Court. We also note that though the residence address mentioned in the cause title of the Petitioner and the Respondent No.2 is the same, however, having regard to the strained relations between the parties, the learned Senior Advocate for the Respondent No.2 submitted that he will reside in a separate accommodation, which is in close proximity to that of the Petitioner's residence to facilitate ease of visitation rights. Statement is accepted. 24. The present Petition is disposed of on the following terms : (i) The Civil Judge, Senior Division at Mapusa, Goa, to consider the issue of grant of interim custody of the minor child to the Petitioner or Respondent No.2 on its own merits within a period of eight weeks from the date when the parties appear before the learned Judge. The present Petition is disposed of on the following terms : (i) The Civil Judge, Senior Division at Mapusa, Goa, to consider the issue of grant of interim custody of the minor child to the Petitioner or Respondent No.2 on its own merits within a period of eight weeks from the date when the parties appear before the learned Judge. (ii) The parties to appear before the learned Civil Judge, Senior Division, Mapusa, on 28th March, 2023 at 10.00 a.m. along with the copy of this Order. (iii) We request the Trial Court to decide the custody Petition filed by the Respondent No.2 expeditiously on its own merits and in accordance with law. (iv) Overnight access to the Petitioner of the minor child on the weekend is granted. (v) The Respondent No.2 shall hand over the child to the Petitioner on every Friday evening at 5.00 p.m. The mother (Petitioner) will hand over the child to the father (Respondent No.2) on Sunday at around 2.00 p.m. (vi) The Respondent No.2 shall hand over the child to the Petitioner on Tuesdays, Wednesdays and Thursdays between 11.00 a.m. and 5.00 p.m. (viii) The Petitioner and the Respondent No.2 not to remove the minor child from the State of Goa without the leave of the Trial Court. 25. This arrangement shall continue till the application for interim custody is decided by the Trial Court. 26. Observations made by us, not to influence the Trial Court while deciding the application for interim custody or the main matter. 27. The Petition is disposed of on the above terms. No order as to costs.