Karnataka High Court: While deciding the instant petition seeking transference of physical custody of the minor son to the petitioner (‘father’) and the child’s repatriation to his habitual place of residence- Germany, the Division Bench of Alok Aradhe* and Vijaykumar A. Patil, JJ., pointed out that the principle of comity of courts is salutary in nature, yet it cannot override the consideration of best interest and welfare of the child. The principle has to yield to paramount consideration i.e., interest and welfare of the child, which must be examined in the facts of each case. The Court further held that the remedy of writ of habeas corpus cannot be used for enforcement of an ex-parte order passed by the German Court, which was not in existence at the time when the son left Germany.
Facts and Legal Trajectory: The petitioner (hereinafter father) and respondent No.2 (hereinafter mother) got married in 2013 at Bangalore, Karnataka and went on to reside in the matrimonial home in Germany. Thereafter in 2016, a son was born to them in Germany. However, on account of certain matrimonial disputes, the mother left Germany in 2017 along with the son.
The father filed a petition on 17-05-2017 before the jurisdictional court in Germany seeking custody of the son. However, by the time an order was passed by the jurisdictional court in Germany granting custody to the father and directing that the son will not be taken out of the borders of the Germany, the mother the son. The father thereafter preferred a petition in Germany for return of the son on the ground that mother is staying in India in contravention of the order dated 17-05-2017 passed by the German Court.
However, the mother bought the child’s e-visa and converted it into stay visa by Foreigners Regional Registration Officer (FRRO), Bangalore and thereafter filed a petition on seeking dissolution of marriage as well as permanent alimony and permanent custody of the son. Thereafter, she filed a petition under the Guardians and Wards Act, 1890 and sought a declaration that she be declared as natural guardian of the son and be permitted to continue to have custody of the son.
The mother also entered appeared in the German court and, the father as well as she agreed that the father shall pursue the custody dispute in India. The father, thereafter, filed petitions seeking visitation rights and later filed the instant petition seeking the writ of habeas corpus.
Court’s Assessment- The Court noted that United Nations General Assembly Summit in 1990 adopted a declaration on survival, protection and development of children. In 1990 in which India participated and acceded to Convention on Rights of a Child (CRC). Furthermore, the Parliament had enacted the Commission for Protection of Child Rights Act, 2005. This Act was brought in to provide for constitution of a National Commission and State Commissions for protection of child rights and Children’s Court for providing speedy trial of offences against will or violation of child rights.
In the backdrop of the facts of the case, the Court stated that certain facts must be considered, like-
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The son who is removed from Germany by the mother is not in illegal or unlawful custody and his mother has the interim custody.
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The German Court recorded an agreement between the father and the mother to pursue the matter pertaining to minor child in Indian Courts.
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The son is in Bangalore and stays with the mother as well as his grandparents in an atmosphere which is conducive to his overall growth Neither any averment has been made nor any ground has been urged in the petition regarding unsuitability of the wife/mother to take care of the son. The father is employed in Germany and living there alone.
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At this point of time, if the mother is directed to shift to Germany, the environment of the child would suddenly and abruptly be changed which would disturb the son’s daily routine and his education in formative years.
The Court pointed out that the interim order passed by the family court in 2017, which granted an interim custody of the child to the mother, is still in force which binds the parties. Thus, the Court held that it would not direct repatriation of the son to Germany.
Regarding the writ of habeas corpus, the Court pointed out that the writ of habeas corpus is a prerogative writ and is an extraordinary remedy. It is a writ of right not a writ of course and may be granted only when the reasonable or probable cause been shown. “No exceptional circumstances are made out by the husband to demonstrate that the son should be repatriated to Germany”.
[Sankar Viswanathan v. State of Karnataka, 2023 SCC OnLine Kar 9, decided on 09-03-2023]
*Judgment was written by Justice Alok Aradhe.
Advocates who appeared in this case :
Petitioner- Shadam Farasath A/W Shyam Harindar, ADV., for Raghuram Cadambi, ADV;
Respondent- Thejesh P, HCGP for R1; Anu Changappa, ADV., for R2-R4.