A. P. Thaker, J
1. In this petition filed under Article 226 of the Constitution of India, the petitioner seeks a writ in the nature of habeas corpus directing respondent
No.4 to produce his minor child and handover the custody of the said minor to the petitioner.
2. The petition is based on the facts that the petitioner is the natural father and guardian of the minor child. According to the petitioner, he and
respondent No.4 are husband and wife and both medical practitioners and they got married as per Hindu rites and rituals on 01.04.2002. On
02.12.2006, a daughter namely Ananya Pujar was born at Gandhinagar and, thereafter, the family moved to Australia in February 2007.
2.1 On 06.08.2011, the corpus - Anant was born in Townsville, Australia. Both Ananya and Anant are Australian citizens. On 29.12.2018, respondent
No.4 - mother visited India along with both children and the petitioner had booked return tickets for all three of them and they were scheduled to
return to Australia on 25.01.2019 to recommence their schooling. As per the averments made in the petition, when the petitioner contacted respondent
No.4, she refused to return to Australia with the children and informed the petitioner that she would remain in Gandhinagar and at that time, the
petitioner has asked respondent No.4 to return the children, but she refused to do so. Thereafter, he came to India and tried to talk with respondent
No.4, but she refused to speak with him and they did not allow to meet with the children. It is contended by the petitioner that he approached the
Federal Circuit Court of Australia under the Family Law Act, 1975 on 07.02.2019 seeking sole parental responsibility for the children for Ananya and
corpus - Anant and in that petition, he was able to secure Ananya's return to Australia by negotiation with respondent No.4. However, she refused to
return the corpus - Anant to the petitioner. It is further contended by the petitioner that the corpus wishes to join him. On the aforesaid ground, the
petitioner has preferred this petition.
3. This petition has been resisted by respondent No.4 denying all the facts of the petition and contested the petition and stated that she is a natural
guardian and biological mother of the child Anant and has also stated that the custody of the minor child is with his own mother does not amount to
illegal custody or illegal confinement and, therefore, the present petition is not maintainable. It is further stated that to allow the minor child with the
mother is always desirable in the larger welfare of the child himself. She has stated that in the peculiar facts and circumstances of the case, there is a
high risk of the child being abused by the father and there is high risk of domestic violence upon the child more particularly in Australia. It is stated that
the child is not in any confinement, he is moving freely under the care of his mother and he is studying in a well known school namely Aditya Birla
Public School, Nagda, Madhya Pradesh. She has stated that when she tried to transfer the money from her joint account with the petitioner, she could
not do so as the petitioner was having full control over the bank account and when she talked with the petitioner, he started verbally abusing her. The
main contention of respondent No.4 is that the petition is not maintainable and the custody of the minor child can not be treated as illegal custody. The
other respondents have also filed affidavit-in-reply by denying the contentions of the petition.
4. In rejoinder, an additional affidavit has been filed by the petitioner reiterating the same facts denying the allegations of respondent No.4 - wife.
5. During the course of hearing, an additional affidavit-in-reply has been filed on behalf of respondent No.4 - mother wherein she has stated that she is
willingly assured that the family may reunite in the month of April 2020 and, therefore, she shall not willingly consent of departure to Australia before
completion of the Academic Year as she would not have any one to take care of education and safety. She has submitted that as she being only
medical practitioner serving in department at Nagda, Madhya Pradesh, it would not be possible to her to obtain leave for a long period, which would
adversely affect her patients and her goodwill as a medical practitioner and, therefore, she is reunite with the petitioner along with the minor son in
April 2020.
6. Heard Mr.Shashvata Shukla, learned advocate for the petitioner, Mr.P. M. Lakhani, learned advocate for respondent No.4, Mr.Milan Maruti,
learned advocate for respondents No.5 to 8 and Mr.Ronak Raval, learned Additional Public Prosecutor for respondent No.1 - State. Perused the
materials placed on record and the decisions cited at the Bar.
7. Mr.Shashvata Shukla, learned advocate for the petitioner has submitted the same facts which are narrated in the memo of petition and has
submitted that the age of the minor child is 8 years and he desires to go with his father assumes importance. He has submitted that the family is
holding citizenship of Australia and Australia Court has passed the order in favour of the petitioner, which holds field as no further action has been
taken by the mother against the said order. He has submitted that the Australia Court has already dealt with the disputes of the parties and has passed
the order in favour of the petitioner. While referring to the wish expressed by the minor during the interaction with the Court, he has submitted that the
minor child wants to go to the Australia with his father and, therefore, necessary order in this respect directing respondent No.4 - mother to handover
the custody of the minor child along with his travel documents may be passed.
8. Per contra, Mr.P. M. Lakhani, learned advocate for respondent No.4 - mother has vehemently submitted that the petition itself is not maintainable
as the custody of the minor child is with the mother which cannot be treated as illegal custody. He has submitted that the petitioner should file proper
case either under the Guardians and Wards Act or Hindu Minority and Guardianship Act. He has submitted that let the Civil Court decides the
question of custody of minor child and this Court may refrain itself by passing any order of handing over the custody of the minor child to the
petitioner. He has submitted that in view of alternative remedy available with the petitioner for filing the necessary legal proceedings under the
aforesaid two Acts, the petition under Article 226 of the Constitution of India may not be entertained and the same may be dismissed.
8.1 While relying upon the following decisions, learned advocate for the respondent No.4 has urged to dismiss the present petition.
(i) Veena Kapoor Vs. Varinder Kumar Kapoor, AIR 1982 SC 792;
(ii) Saihba All Vs. State of Maharashtra, AIR 2003 SC 4205;
(iii) Nithya Anand Raghavan Vs. State of NCT of Delhi and Another, AIR 2017 SC 3137;
(iv) Rajesh K. Gupta Vs. Ram Gopal Agarwala, AIR 2005 SC 2426;
(v) Marari Lal Sharma Vs. State of West Bengal and others, Writ Petition No.13048 (W) of 2013 of the High Court of Calcutta;
(vi) Manuj Sharma Vs. State of Uttar Pradesh & others, Writ Petition No.82 of 2019 of the High Court of Allahabad;
9. Having considered the contentions of the learned advocates for the parties and perusing the record, it appears that there is no dispute as to the
relationship between the parties and regarding the Australian citizenship of the father and mother as well as two children. At this juncture, it is
pertinent to note that the Supreme Court has time and again settled the principles of governing the custody of the minor child in various decisions and
one of such decisions is in the case of Gaurav Nagpal Vs. Sumedha Nagpal, (2009) 1 SCC 4.2 In the said decision, while referring to the English law
decisions and American decisions as well as of Indian decisions, it is emphasized that the principles in relation to the custody of a minor child are well
settled. The paramount consideration of the court in determining the question as to who should be given custody of a minor child, is the ""welfare of the
child"" and not rights of the parents under a statute for the time being in force or what the parties say. The court has to give due weightage to the
child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral
and ethical values have also to be noted. They are equal if not more important than the others. Mature thinking is indeed necessary in such a situation.
When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The court has not only to look at
the issue on legalistic basis. In such matters, human angles are also relevant for deciding the issues. The object and purpose of the 1890 Act is not
merely physical custody of the minor but due protection of the rights of ward's health, maintenance and education. The power and duty of the court
under the Act is the welfare of minor.
9.1 Further on the basis for issuance of a writ of habeas corpus is an illegal detention; but even in such a case, the law is concerned not so much with
the illegality of the detention as with the welfare of the child.
9.2 In the case of Gaurav Nagpal (supra), the Apex Court has held and observed in paras-36, 37, 38, 39, 40, 41, 42, 43 and 50 are as under:-
36. The Guardians Act, consolidates and amends the law relating to guardians and wards. Section 4 of the said Act defines ""minor"" as a person who
has not attained the age of majority. ""Guardian"" means ""a person having the care of the person of a minor or of his property, or of both his person and
property.
 ""Ward"" is defined as ""a minor for whose person or property or both, there is a guardian"".
Chapter II (Sections 5 to 19 of Guardians Act) relates to appointment and declaration of guardians. Section 7 thereof deals with ""power of the Court
to make order as to guardianship"" and reads as under :
7. Power of the Court to make order as to guardianship. - (1) Where the Court is satisfied that it is for the welfare of a minor that an order should be
made -
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian,
the Court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or
declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or
declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased
under the provisions of this Act.
37. Section 8 of the Guardians Act enumerates persons entitled to apply for an order as to guardianship. Section 9 empowers the Court having
jurisdiction to entertain an application for guardianship. Sections 10 to 16 deal with procedure and powers of Court. Section 17 is another material
provision and may be reproduced;
17. Matters to be considered by the Court in appointing guardian. - (1) In appointing or declaring the guardian of a minor, the Court shall, subject to
the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the
welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and
capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations
of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
* * * * *
(5) The Court shall not appoint or declare any person to be a guardian against his will.
(emphasis supplied)
38. Section 19 prohibits the Court from appointing guardians in certain cases. Chapter III (Sections
20 to 42) prescribes duties, rights and liabilities of guardians.
39. The Act is another equally important statute relating to minority and guardianship among Hindus. Section 4 defines ""minor"" as ""a person who has
not completed the age of eighteen years"". ""Guardian"" means ""a person having the care of the person of a minor or of his property or of both his
persons and property"", and inter alia includes a natural guardian. Section 2 of the Act declares that the provisions of the Act shall be in addition to, and
not in derogation of 1890 Act.
32. Section 6 enacts as to who can be said to be a natural guardian. It reads thus;
6. Natural guardians of a Hindu Minor. - The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's
property (excluding his or her undivided interest in joint family property), are
(a) in the case of a boy or an unmarried girl - the father, and after him, the mother;
Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl - the mother, and after her, the father;
(c) in the case of a married girl - the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section -
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation. - In this section, the expressions ""father"" and ""mother"" do not include a step- father and a step-mother.
41. Section 8 enumerates powers of natural guardian. Section 13 is extremely important provision and deals with welfare of a minor. The same may
be quoted in extenso;
13. Welfare of minor to be paramount consideration - (1) In the appointment or declaration of any person as guardian of a Hindu minor by a court,
the welfare of the minor shall be the paramount consideration.
(2) No, person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among
Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.
(emphasis supplied
42. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the Court
could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor
children, consistently with their wishes, wherever possible.
43. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor
child, the paramount consideration is the 'welfare of the child' and not rights of the parents under a statute for the time being in force.
50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to
look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on
what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli Vs.
Jayant Ganguli, (2008) 7 SCC 673, the Court has to due weightage to the child's ordinary contentment, health, education, intellectual development and
favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more
important than the others.
10. It is pertinent to note that all the decisions cited by learned advocate for respondent No.4 are on the same line and, therefore, they are not
discussed in detail.
11. Now, considering the peculiar facts and circumstances of the present case, it is pertinent to note that the petitioner herein has earlier moved the
Federal Circuit Court, Australia under Family Law Act, 1975 and the Court of Australia has passed the order in favour of the petitioner, which is
annexed as Annexure - D (page Nos.27 to 30 to the petition). The relevant observations of the Federal Circuit Court, Australia are as under:-
1. Mr.Kiran Pujar and Ms Tarika Kiran Pujar are the parents of Ananya born 2 December 2006 and Anant born 6 August 2011.
2. The parents began to live together when they married on 1 April 2002.
3. They separated on a final basis on 29 December 2018.
4. In between those two dates, they arrived in Australia on what are known as section 457 visas.
5. The father, Dr.Kiran Pujar, undertook medical appointments in North Queensland and now has a practice in Ayr.
6. At the time of the parties separation there was an agreement that the mother and the children would travel to India for a holiday.
7. Both of the parents and both of the children are now Australian citizens.
8. It seems from the material sought to be filed by the mother (which she was unable to file) but now marked as an exhibit, that the children, because
of their parents' places of birth, also have a type of citizenship in India. She refers to it as overseas Indian citizenship.
9. The father consented to the mother and the children's travel to India for a short period of time.
10. In this mind they were to be returning to Australia before the commencement of the school year in 2019. It appears that mother had other plans.
11. On arriving in India at some point in time she determined that she would not be returning to Australia with the children.
12. xxx xxx xxx
13. I am satisfied that the mother has notice of today's proceedings and unlike the past where she participated by telephone, has not sought to engage
with the court by telephone for this hearing.
14. She has sought to file documents but they have not met the criteria of documents to be able to be filed and their filing has been rejected, but I have
had consideration to them for reasons of today's judgment, and they are an exhibit in this hearing.
15. xxx xxx xxx
16. The mother has refused to return the other child to Australia, and seems intent on remaining in India with him. That child was born in Australia.
17. That child, until he went to holiday, had no real first-hand experience of India and very limited exposure to any of the Indian languages. The
parents say that they spoke English at home.
18. The mother has taken the child overseas without the father's consent to the child remaining overseas. She has removed the child from his
Australian school education and enrolled him unilaterally in the Indian education system, and has now, by reason of his sister's return to Australia,
separated the siblings, and has brought about an end to the relationship that existed between the father and the child at least on a face-to-face basis.
19. xxx xxx xxx
20. The mother's actions in now retaining the son overseas, separated from both his sister and his father, is not a decision that is in that child's best
interest. It severs the important sibling relationship. It severs the important father-son relationship.
21. xxx xxx xxx
22. The mother has displayed a poor attitude to the responsibilities of parenthood in the actions that she has undertaken, since separating from the
father, initially in retaining both children overseas and retaining the son. She has not focused on his needs but on hers.
23. xxx xxx xxx
24. I am satisfied that the evidence currently before the court determines that the son should be returned as soon as possible to live in Australia, to
enable a relationship with his sibling and with his father, and to continue his education, and to continue living in a set of circumstances, being the only
set of circumstances that he has known since the date of his birth.
25. xxx xxx xxx
26. On balance it is in the son's bet interest, that he should, pending further order, live with his father and that there should then be consequential
orders requiring the mother, as soon as possible, to return him to the Commonwealth of Australia.
12. In the facts of the present case, corpus-child was brought to India by the respondent-wife and the petitioner has filed present petition. In similar
facts, in the case of Surya Vandan v. State of Tamil Nadu, AIR 2015 SC 2243, the Supreme Court has held and observed in paras - 53, 54 and 55 as
under:-
53. What then are some of the key circumstances and factors to take into consideration for reaching this final goal or final objective? First, it must be
appreciated that the ""most intimate contact"" doctrine and the ""closest concern"" doctrine of Surinder Kaur Sandhu (AIR 1984 SC 1224) are very much
alive and cannot be ignored only because their application might be uncomfortable in certain situations. It is not appropriate that a domestic court
having much less intimate contact with a child and having much less close concern with a child and his or her parents (as against a foreign court in a
given case) should take upon itself the onerous task of determining the best interests and welfare of the child. A foreign court having the most intimate
contact and the closest concern with the child would be better equipped and perhaps best suited to appreciate the social and cultural milieu in which
the child has been brought up rather than a domestic court. This is a factor that must be kept in mind.
54. Second, there is no reason why the principle of ""comity of courts"" should be jettisoned, except for special and compelling reasons. This is moreso
in a case where only an interim or an interlocutory order has been passed by a foreign court (as in the present case). In McKee which has been
referred to in several decisions of this court, the Judicial Committee of the Privy Council was not dealing with an interim or an interlocutory order but a
final adjudication. The applicable principles are entirely different in such cases. In this appeal, we are not concerned with a final adjudication by a
foreign court - the principles for dealing with a foreign judgment are laid down in Section 13 of the Code of Civil Procedure.
13. When foreign judgment not conclusive.-A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the
same parties or between parties under whom they or any of them claim litigating under the same title except-(a) where it has not been pronounced by
a Court of competent jurisdiction;(b) where it has not been given on the merits of the case;(c) where it appears on the face of the proceedings to be
founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;(d) where the
proceedings in which the judgment was obtained are opposed to natural justice;(e) where it has been obtained by fraud;(f) where it sustains a claim
founded on a breach of any law in force in India.
In passing an interim or an interlocutory order, a foreign court is as capable of making a prima facie fair adjudication as any domestic court and there
is no reason to undermine its competence or capability. If the principle of comity of courts is accepted, and it has been so accepted by this court, we
must give due respect even to such orders passed by a foreign court. The High Court misdirected itself by looking at the issue as a matter of legal
rights of the parties. Actually, the issue is of the legal obligations of the parties, in the context of the order passed by the foreign court.
55. If an interim or an interlocutory order passed by a foreign court has to be disregarded, there must be some special reason for doing so. No doubt
we expect foreign courts to respect the orders passed by courts in India and so there is no justifiable reason why domestic courts should not
reciprocate and respect orders passed by foreign courts. This issue may be looked at from another perspective. If the reluctance to grant respect to
an interim or an interlocutory order is extrapolated into the domestic sphere, there may well be situations where a Family Court in one State declines to
respect an interim or an interlocutory order of a Family Court in another State on the ground of best interests and welfare of the child. This may well
happen in a case where a person ordinarily resident in one State gets married to another person ordinarily resident in another State and they reside
with their child in a third State. In such a situation, the Family Court having the most intimate contact and the closest concern with the child (the court
in the third State) may find its orders not being given due respect by a Family Court in the first or the second State. This would clearly be destructive
of the equivalent of the principle of comity of courts even within the country and, what is worse, destructive of the rule of law.
13. Now, admittedly, the aforesaid interim order of the Australia Court has not been objected by filing any further proceedings by the mother and it
holds the field. The order being judicial order though passed by the Foreign Court and there may not be any recognition of the country as a
reciprocative territory, the order of competent judicial forum may be respected, especially when such order of Foreign Court is not reverted by the
Appellate Authority thereof. Now, admittedly, in this case, respondent No.4 has not challenged the order of Australia Court and, therefore, at this
stage the observation made by the Australia Court as referred to above may be accepted.
14. During the pendency of this petition, the Court has also sought willingness of the minor child who is now 8 years of age and he is in a position to
express his wish and will, it was found that the minor child consistently shown his willingness to join his father than his mother. From the peculiar facts
and circumstances of the case, it clearly transpires that the welfare of the minor child is with the father and considering his will and wish, it is for the
benefit of the minor child that he may be permitted to retain with father, especially when the mother is also going to reunite in April, 2020 as per her
additional affidavit dated 16.11.2019.
15. For the foregoing reasons, the present petition is allowed. The custody of the minor - Anant which has been given to the father during the
pendency of this petition vide order dated 25.11.2019 passed by this Court is ordered to be continued and the custody of corpus Anant is ordered to be
given to the petitioner - father.
16. The respondent No.4 - mother is hereby directed to handover the passport and travel documents of the minor Anant to the petitioner - father
forthwith.
17. The petition stands disposed of accordingly. No order as to cost.
