Karnataka High Court Refuses To Repatriate Minor To Germany, Says No Habeas Corpus Jurisdiction In Face Of Interim Order Giving Custody To Mother
The Karnataka High Court on 9th March, 2023 has dismissed a habeas corpus petition filed by a man seeking direction to his wife to produce their minor son before the court and then direct his repatriation to Germany. (W.P.H.C. NO.46 OF 2022) and this was presided over by a division bench of Justice Alok Aradhe and Justice Vijaykumar A Patil.
FACTS OF THE CASE:
The petitioner as well as respondent No.2 (the wife of the petitioner) got married on 07.10.2013 at Bangalore, Karnataka. The wife joined the matrimonial home in Germany. Thereafter, on 21.10.2016 a child Master Siddharth Sankar was born in Germany. It appears that on account of matrimonial dispute, the wife left Germany on 16.05.2017 along with the son. The petitioner thereupon 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 petitioner and directing that the son will not be taken out of the borders of the Germany, the wife had already landed in India with the son.The petitioner thereafter on 01.06.2017 preferred a petition in Germany for return of the son on the ground that wife is staying in India in contravention of the order passed by the German Court and that the visa of the child was due to expire in two months and therefore, it was necessary for the child to return to Germany. However, the wife on 01.06.2017 bought the child’s e-visa converted into stay visa by Foreigners Regional Registration Officer (FRRO), Bangalore. The wife thereafter filed a petition seeking dissolution of marriage as well as permanent alimony of Rs.4 Crores and permanent custody of the son. Thereafter, she filed a petition under Section 6 of the Guardians and Wards Act, 1890 on 13.06.2017 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. Thereafter, the wife entered appearance in German court on 07.11.2017 and the petitioner as well as the wife agreed that the petitioner shall pursue the dispute with regard to custody of the son in India. The petitioner further agreed that in case, if wife returns to Germany, the abduction charges against her would be dropped. The petitioner thereafter, filed petitions from 13.11.2017 till 28.01.2019 seeking visitation rights. The petitioner thereafter has filed this petition on or about 27.05.2022 seeking the writ of habeas corpus.
Learned counsel for the petitioner submitted that the issue, whether the child brought unilaterally by one parent from his native country to another country should be directed to be returned to his native country has to be decided, keeping in view the best interest of the child. It is argued that the wife brought the son to India without obtaining the consent of the petitioner. It is further submitted that petition under the Act was filed on 13.06.2017, by conceding the fact that son is a German citizen as well as the fact that jurisdictional court at Germany had passed an order on 17.05.2017. It is contended that the child’s upbringing will be better in the German system as the son is a German citizen.
The learned counsel for wife submitted that the son is not in illegal custody and learned Additional Family Judge, Bangalore by an order passed has granted an interim custody and restrained the petitioner and his agents from coming within 500 meters of the son. It is urged that petitioner and wife are pursuing the alternative remedy of custody and guardianship in respect of the son. It is pointed out that the son is living in Bangalore for past about more than 5 years and the family court at Bangalore is the most suitable forum to decide the custody of guardianship of the son. It is contended that the petitioner is guilty of suppression of facts and abuse of court proceedings.
JUDGEMENT:
The bench also opined that “A 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 has been shown. The exercise of extraordinary jurisdiction for issuance of writ of habeas corpus would be dependent on jurisdictional fact where the petitioner establishes a prima facie case that detention is unlawful. It is only when such a jurisdictional fact is established, the petitioner becomes entitled to the writ as of right.”
Further it said “The son is in the custody of the wife in pursuance of an interim order dated 08.06.2017, passed by Family Court, Bangalore. The aforesaid interim order is still in force. Therefore, the custody cannot be said to be illegal. 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.”
Finally it held “In the best interest of the son, he should be allowed to stay with the wife in India till the issue pertaining to custody of the son in a proceeding under the Guardian and Wards Act, 1890 is adjudicated.”
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JUDGEMENT REVIEWED BY PRATIKSHYA P. BEURA