AP HC ordering the US citizen child to be returned to USA

THE HONOURABLE SRI JUSTICE A.GOPAL REDDY
and
THE HONOURABLE SRI JUSTICE K.C.BHANU
W.P.No.25479/2009
Dt. 24-9-2010

Bandi Jagadrakshaka Rao
..Petitioner ..Petitioner
V.
1. State of Andhra Pradesh, Home Department, Secretariat Buildings, Hyderabad,
represented by its Principal Secretary and others.

..Respondents
..Respondents

The Court made the following:

THE HONOURABLE SRI JUSTICE A.GOPAL REDDY

and

THE HONOURABLE SRI JUSTICE K.C.BHANU

WP No.25479/2009

 ORDER

                (per the Honourable Justice A.GOPAL REDDY)                             The writ petitioner-Bandi Jagadrakshaka Rao, who is the husband of Arathi Bandi, 7^th respondents, invoked the habeas corpus jurisdiction of this court under Art.226 of the Constitution of India for production of the minor child ie.,  Master Anand Saisuday Bandi before this court and to permit him to take the custody of the minor child in compliance  of the orders passed in Case No.06-3-08145-9-KNT  by the  Superior Court of Washington, County of King (for brevity “the US Court”).

                As rightly pointed out by the Supreme Court in SHILPA AGGARWAL V. AVIRAL MITTAL[1] this is one of those cases where a minor child below  5 years of age is the  victim  of the acrimony   of the two adults who were responsible for his birth.

                The facts, which are not in dispute, and which give rise to the present litigation, briefly stated as under:

                The marriage between the petitioner and the 7^th respondent took place on 9-11-2003. The 7^th respondent, is a divorcee, and the second wife of the petitioner. At the time of marriage, the petitioner and 7^th respondent  were divorced and were working in USA, the petitioner was living in Seattle, WA and 7^th respondent in Atlanta, GA.  As both the parties thought that they were suitable for each other, they got married on 9-11-2003.  After marriage, they lived together at Seattle, WA, USA and later 7^th respondent got a job in Seattle, WA.   During the wedlock, Master Anand Saisuday Bandi was born to them  on 5-6-2005 (hereinafter referred to as “the minor child”), who is a citizen of USA by birth. After birth of minor child, it appears parties lived together happily for sometime. The petitioner filed a petition before the Superior Court of  Washington, Country of King seeking dissolution of marriage and obtained an ex parte order  restraining the 7^th respondent from traveling out of the State of Washington on 30-6-2006. Whereas 7^th respondent moved  a motion before the Court for Domestic Violence. In the said case, she made  a request to the court to direct the petitioner to move  out of the house  and be given two hours of supervised visitation with his son on the ground that he is a domestic violence batterer. The court directed  the petitioner to move out of home till regular scheduled hearing and it further ordered that the 7^th respondent should pay the petitioner $1500 so that he can pay his lodging/boarding as an interim  measure and granted him  unsupervised visitation rights with their son. The US Court appointed guardian-ad-litem   to have parenting evaluation process. On parties agreeing to parenting plan, as recommended by the guardian-ad-litem appointed by the court  was  approved and made an order of the court by US Court  on 20-3-2008. Under the said plan adjudicated and approved by the court, the child shall reside with the mother, except for the days and time, mentioned, when the child will reside with the father. Neither parent is prohibited from international or out of State travel with the child during his residential time. If the father relapses on alcohol, mother may seek an order limiting his residential time. Father will remain abstinent from alcohol.  The petitioner father will successfully complete 10 week parenting class to begin immediately. Both parents will engage in co-parent counselling to improve communication etc., As 7^th respondent left US on 17-7-2008 in violation of final parenting plan even after court declining to give clarification by rejecting the application moved by the 7^th respondent on   16-7-2008.  Meanwhile, the employer of 7^th respondent terminated her services, and she could not go back to America. The petitioner filed a petition before the US Court to modify the custody decree/parenting plan/residential schedule and to designate him as custodian of the child, apart from restraining the 7^th respondent from moving the child from the State of Washington from the date of entry of the parenting plan; permitting him to hold on the child’s passport and PIO card; restraining 7^th respondent from obtaining Indian Passport for the child and other consequential reliefs, in which notices were ordered. The US Court, after following the procedure to serve notice on the 7^th respondent by way of substituted service and also through counsel for the petitioner, by order dt. 9-12-2008 appointed the petitioner as custodian of the minor child, and he alone can take major decision with regard to education. According to the 7^th respondent, the said order was obtained behind her back without any notice to her nor the order dt. 9-12-2008 was communicated to her.  As the order of the US Court dt. 9-12-2008 has not been adhered to by the 7^th respondent, the petitioner filed habeas corpus petition before the US Court for issuing a  writ of Habeas Corpus and warrant in aid of Writ of Habeas Corpus to produce the child, wherein the Sheriff of King County,  Washington was directed to locate and  take the child into immediate custody and to deliver  him as soon as reasonably to the Unified Family Court Judge of Superior Court of Washington. In spite of issuing a writ of Habeas Corpus, attempts made by the Sheriff of King County to locate and contact the 7^th respondent and the child became futile, which led to King County Prosecutor’s office charging 7^th respondent with first decree felony charges for custodial interference in March, 2009. On issuing warrant in Writ of Habeas Corpus, FBI  had conducted their investigation, which led   to District Attorney  for Western  Washington  issuing a federal warrant for kidnapping against 7^th respondent in August, 2009. Meanwhile, 7^th respondent lodged a complaint against the petitioner and his parents with Women Police Station, Central Crime Station. On the basis of which, Cr.No.213/2008 under Sections 498-A and 506 IPC and Sections 4 and 6 of Dowry Prohibition Act,1961. He filed Crl.P.No.6711/2009 under Sec. 482 Cr.P.C.,  for quashing the charge sheet; and also filed the present writ petition for the reliefs as aforementioned.

                A detailed counter-affidavit has been filed by the 7^th respondent. In the counter-affidavit, the seventh respondent while admitting about the disputes between the parties and orders passed by the US Court etc., stated that the petitioner suppressed the fact of dissolving the marriage by a decree of the court and fact about the health of the child and the ailments with which he is suffering, despite the fact that he had knowledge about the same. When they were lived together, the child was hospitalized under emergency conditions, which unerringly point out that he is habituated to obtain orders from the court to  suit his convenience by suppressing facts.

                In the additional counter-affidavit filed by the 7^th respondent, on petitioner filing rejoinder with the same set of fact, it is stated how the disputes started between them, which led to filing of the cases etc., which are not necessary to be detailed for the disposal of the present case since both the parties agreed that there is an order passed by the US Court; issuance of a writ of habeas corpus  for production of the child  and registration of the crime by the Women Police Station, Central Crime Station, Hyderabad.

                Sri C.V. Mohan Reddy, learned Senior Counsel appearing for the petitioner would contend that on the information received from Department of State, Bureau of Consular Affairs, Office of Children’s Issues, NW Washington, DC dt. 6-2-2009 that they could not locate the child, the petitioner invoked the jurisdiction of this court  by filing the present Writ of habeas corpus, in which  interim order passed  on 6-4-2010  directing the petitioner to have  association of the child  and interact with him in the presence of the family members of B.Somashekaran, Government Pleader has not been complied with by the seventh respondent and similarly interim order passed by this court dt. 29-4-2010 to hand over the minor child at 4 PM on every Monday, Wednesday and Friday as the place specified has not been complied with by the seventh respondent and there is no possibility of the parties uniting together to lead happy marital life. He further contended that the Court may be directed the seventh respondent to submit to the jurisdiction of the US Court and  handover the child in obedience to the orders passed in the Writ of Habeas Corpus by the US Court.

                Sri B. Adinarayana Rao, leaned Senior Counsel appearing for the respondent No.7 would contend that the marriage of the parties has been dissolved by the court by order dt.25-8-2008 awarding property to the husband and wife and liabilities and the petitioner by moving an application on 26-9-2008 obtained orders for modifying the parenting plan custody of the child and all subsequent events had happened including filing writ of habeas corpus within three months followed by warrant of arrest.  As per the parenting plan submitted by guardian-ad-litem, mother can have the custody and the petitioner-father will have only visitation rights.  Warrant issued against the 7^th respondent is to be withdrawn and she has to submit to the jurisdiction of the US Court within the time fixed by the court, so that she can obtain necessary orders for modifying the orders obtained by the petitioner and for recalling the warrant. He further contended that the seventh respondent has to bear $5000 for engaging a criminal lawyer at USA and due to termination of her employment she is not in a position either to travel to USA or engage an advocate to prosecute his case.

                In SURINDER KAUR SANDHU V. HARBAX SINGH SANDHU[2], the Supreme Court  held that when the parents of the child are Indian citizens and child  born is a  British citizen  having taken birth  in England  and  hold a British passport, English Court had jurisdiction to decide the  question of his custody. The father cannot  deprive the English Court of its jurisdiction to decide upon his custody by removing him to India,  not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home.  The fact that the matrimonial home of the husband in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the courts of the State to assume jurisdiction to enforce obligations which were incurred therein and accordingly allowed the appeal filed by the wife directing that the custody of the child shall be handed over to the  mother.

                In V. RAVI CHANDRAN (DR) (2) V. UNION OF INDIA[3] while dealing with the case of custody of child, the Apex Court held as under:

               

 “While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, the court in the country to which the child has been removed must first consider the question whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to the child’s welfare be investigated in a court in his own country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of the child including stability and security, loving and understanding care and guidance and full development of the child’s character, personality and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case. (para 29)

However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interests of the child………..”(para 30)

                In SHILPA AGGARWAL (1 supra), the Supreme Court while deciding the question “whether a 3½ year old girl child, who was born in England of Indian parents and is a British citizen by birth, can be kept in the custody of the mother who is now currently residing in India, despite an order passed on 26-11-2008, by the High Court of Justice, Family Division, UK, directing that the child be returned to the jurisdiction of the courts of England and Wales”, and after elaborately considering law on the said subject affirmed the view taken by the High Court holding that  the High Court did not commit any error in relying on the doctrine of Comity of Courts since the question of what is in the interest of the minor still has to be considered by the U. K. Court and the interim order passed in the proceedings initiated by the Respondent No. 1 is only of an interim nature with a view to return the child to the jurisdiction of the said Court.

                Sri B.Adinarayana Rao, learned counsel for the respondent No.7 has not disputed the fact of US court passing an order for the custody of the child and it has not permitted the 7^th respondent to move the child from out of the Washington and in spite of the same, the child was brought  by her and issuance of Writ of habeas corpus by US court for production of the child. But what he pleaded is that to grant some time for submitting the seventh respondent to the jurisdiction of the US Court so as to enable her to obtain necessary orders form the said court.

               Having regard to the said submission and having regard to the facts and circumstances of the case, we issue the following directions:

i)                  The petitioner shall obtain necessary travel tickets for the 7^th respondent and the child for their visit to the place where U.S. Court is situated;

ii)                On obtaining travel tickets, the petitioner shall intimate the same to the 7^th respondent three weeks in advance of the date of departure to enable her to make necessary arrangements;

iii)             The petitioner shall deposit a sum of $5000 (Five thousand American dollars) in the name of the 7^th respondent for enabling her to engage an advocate in US and to submit to the jurisdiction of the US Court;

iv)              The petitioner shall make necessary arrangements for the stay of the 7^th respondent and the child for a period of fifteen (15) on their landing in USA.

v)                 On petitioner providing travel tickets, depositing the amount as ordered above, and intimating the date of departure, if 7^th respondent fails to submit to the jurisdiction of the US Court along with the child, Master Anand Saisuday Bandi, in obedience to the orders passed in writ of Habeas Corpus by the US Court, she shall handover the custody of the child to the petitioner, who in turn shall produce the child before the US Court and custody of the child will abide by the decision of the US Court since the child is a citizen of USA.

                With the above observations, the writ petition is disposed of. No costs.

                                                            --------------------

                                                           A.GOPAL REDDY,J

                                                          

                                                             ---------------

                                                             K.C.BHANU,J

DT.  24-9-2010

Kmr

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[1] (2001) 1 SCC 591

[2] (1984) 3 SCC 698

[3] (2010) 1 SCC 174

http://hc.ap.nic.in/orders/wp_25479_2009.html