1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.509 OF 2009 Carla Gannon & Anr ..Petitioners -versus Shabaz Farukh Allarakhia & anr .. Respondents Mr. J.P.Sen, i/b Mr.Dinesh Pednekar & Mr Vatsal Shah for the Petitioners. Mr M.M.Vashi for Respondent No.l. Mr V.B.Konde Deshmukh, APP for the state. CORAM: SMT. RANJANA DESAI, & R. G. KETKAR, JJ DATED: 10th July, 2009 JUDGMENT ( Per R.G.Ketkar, J.) 1. Heard learned counsel for the parties. Rule. By consent rule is made returnable forthwith and matter is taken up for hearing and final disposal. 2. Every child is special and minor child ‘Ali’ is no exception. The controversy in this petition relates to custody of Ali. By this petition under Article 227 of the Constitution of India, the petitioners have inter alia prayed for dismissal of 2 Petition No.D75 of 2008 filed by first respondent herein before Family Court at Bandra, Mumbai; for a writ of habeas corpus directing the first respondent to produce the minor child Ali before this Court and further directing him to hand over the custody of the said minor child to the petitioners in compliance of the orders dated November 20, 2007, August 5, 2008 and October 3, 2008, passed by the Court of Law in Australia with the permission to take the minor child Ali to Australia; for taking cognizance of the illegal acts of the first respondent and passing appropriate directions to the police or to the second respondent-State of Maharashtra, to initiate appropriate criminal action against the first respondent for abduction of child Ali and ensure that the first respondent hands over the custody of the child to the petitioners. 3. The first petitioner is a divorcee of the first respondent and mother of child Ali. The second petitioner is the mother of the first petitioner. The petitioners are citizens of Australia permanently residing at 2, Delvin Place, Wagga Wagga, NSW 2650, Australia. Somewhere in 2004, the first 3 respondent had moved to New South Wales Australia as on a student visa to do his masters from Charles Strut University, Wagga Wagga, N.S.W. The first petitioner and the first respondent, sometime in January,2005 met through common friends. After few months of the relationship, the first petitioner became pregnant out of her relationship with the first respondent. It is the case of the first petitioner that first respondent suggested to her to abort the pregnancy which she declined. 4. It is the case of the petitioners that first respondent agreed to marry the petitioner No.l so as to facilitate the first respondent in securing Australian citizenship. The petitioner No.l and respondent No.l got married on July l6, 2005 at New South Wales, Australia in accordance with the Marriage Act l96l and not as per Muslim Personal Law and the said marriage was solemnized before Marriage Celebrant. Copy of the marriage certificate is enclosed at Exhibit A to the petition. It is further contended that the first petitioner did not convert herself to the Muslim faith and continued to practice her own faith ie 4 Anglican religion. 5. On September l, 2005, a son named Ali was born at NSW Australia. Ali is Australian citizen having Australian pass port M8500671. It is alleged by the petitioners that the first respondent displayed violent behaviour and subjected the first petitioner to severe mental and physical torture. At times, the first petitioner was required to take help of the local police for controlling the first respondent and on some occasions, the first petitioner was required to be taken to local Wagga base hospital. Even after the birth of Ali, first respondent did not change his attitude and sometime in December, 2005 after argument with the first petitioner, first respondent had taken his anger out on Ali by blowing cigarette smoke on his face whilst he was asleep. 6. The first respondent filed divorce petition being file No.(P)AYC 379/2007 before Family Court of Australia. By consent of the parties, order was passed on December l2, 2007 granting divorce between the parties with effect from January 5 l3, 2008. Upon application to the Court of Federal Magistrate, it was ordered by consent and pursuant to part l0.4 of the Family Law Rules. Orders declaration and notations were made in terms of the consent order signed by the parties dated November 20, 2007. The consent order inter alia provided that the parents have equal share parental responsibility of the child Ali, as more particularly set out therein. Attachment A to the consent terms provided for parenting orders, obligations, consequences and who can help. In terms of the settlement dated August 5, 2008, the first petitioner consented to the first respondent taking the child Ali on holiday to Mumbai in India to enable the child to have a benefit of visiting the first respondent’s parents and relatives with departure date leaving Australia on September l7, 2008 and return date to Australia being September 27, 2008. Terms of settlement were signed by first petitioner and her Solicitor as also first respondent and his Solicitor on August 5, 2008. Clause l0 thereof provided as under: At the end of the trip, the parties shall resume the same pattern as currently exists in 6 relations to the time spent by the child with each other of the parties as set out in the orders that have been made by consent by the Federal Magistrate Court at Canberra in proceedings No.AYC379 of wp5092007. 7. It is the case of the petitioners that on reaching India, the first respondent forcibly abducted the child from the custody of the petitioner No.2 and refused to allow her to take back child to Australia. Access to the child was denied to the petitioners and they were also prevented from communicating with the child in any manner. The first respondent brought the child to India by perpetrating fraud on the Court of Australia and wrongfully and forcibly detained and confined the child with him in violation and contempt of the orders passed by the Court of Australia. The first respondent malafide filed petition No D75 of 2008 in the Family Court at Bandra, Mumbai under section 9 of the Guardians and Wards Act, l890 for guardianship of minor child Ali as also for custody. The child in question is Australian citizen with Australian passport and 7 ordinarily resides at Australia. It is their contention that having regard to section 9 of the said Act, the Family Court will have no jurisdiction to entertain and try the petition filed by the first respondent or any application filed thereunder. The petitioners have also contended that the issue regarding custody of minor child Ali was heard and decided by the competent court in Australia and operates as res judicata as contemplated u/s 11 of the Code of Civil Procedure, 1908 (for short called as “C.P.C.”). The decision of the competent court of Australia is conclusive as the issue of custody of minor child was directly involved in the proceeding between the same parties and the same was adjudicated upon by the competent Court of Australia. The judgment of Australian Court is having binding force as contemplated u/s l3 of the C. P. C. The petitioners also asserted fraud played by the respondent No.l and that he is in contempt of the orders passed by the competent Court in Australia. The petitioners also asserted about the financial capacity of the first petitioner, love, affection and emotional support the petitioner No.2 has towards Ali. The first petitioner and her partner Tony Alexander are having their two years son Dante. The petitioners 8 have set out the income derived by the first petitioner as also by Tony Alexander. On these and among other grounds the present petition is instituted under Article 227 of the Constitution of India on or about February 27, 2009. 8. The first respondent has filed affidavit in reply dated March 14, 2009, resisting the petition. Several preliminary objections have been raised which need not be set out in detail at this juncture. In substance, the first respondent has come out with the case that the first petitioner and her father do not have any fixed job or work in Australia. The petitioner No.2 works as Cleaning Lady at Air Force Quarters. The petitioner No.2 and father of the petitioner No.l have filed for bankruptcy at Australia. The first respondent has also highlighted the conduct and behavior of first petitioner as regards going to wild parties and getting drunk. He also made reference to passing of Apprehending Violence Order (A.V.O.) by Australian Court. It is contended by him that he completed his studies and returned to India permanently in the interest and welfare of son Ali. He had no alternative but to submit consent order dated August 5, 9 2008, passed by Family Court at Australia. His intention has always been to permanently reside in Mumbai (India) and the child Ali came to India not on a tourist visa but on a XV Visa bearing No.AF484725 for a period of one year during which time he expects to get Indian citizenship for Ali. 9. It is further asserted by the first respondent that the divorce between first petitioner and the first respondent was effective from January l3, 2008. During the subsistence of their marriage, first petitioner gave birth to a boy Dante on December l3, 2006, out of relationship and not marriage. It is further contended that before divorce from him the first petitioner was pregnant with her twins which she eventually delivered on September 9,2008 again out of relationship. It is alleged that first petitioner is not married to the father of twins as well as father of boy Dante. The first respondent also relied upon purported writing given by first petitioner signifying her no objection for child Ali applying for passport and travelling to India with his father (first respondent herein). The first respondent also relied upon purported writing given by second 10 petitioner on September 22, 2008. 10. The petitioners filed affidavit in rejoinder dated March l7, 2009 and reiterated the contentions raised in the petition. The petitioners denied that the second petitioner and the father of first petitioner have filed bankruptcy at Australia as alleged by first respondent. It is further asserted that the first petitioner and the first respondent separated in December,2005 and first petitioner entered into relations with Tony Alexander and has three children with said Tony Alexander namely i) Dante Alexander, ii) Brooklyn Alexander and iii)Natalia Alexander. The first petitioner has formed permanent relationship with Tony Alexander and they intend to marry. The petitioners have denied writing purportedly given by second petitioner on September 22, 2008. As far as no objection given by first petitioner applying for passport and travelling for India, it is contended that the said writing is to be read with the consent order dated August 5, 2008 and the hand written note and date thereon is not admitted by the petitioners. 11 11. The first respondent has filed further affidavit dated March, 25, 2009 wherein he has relied upon the declaration of bankruptcy of the second petitioner and her husband. It is asserted that the second petitioner and her husband are undischarged bankrupt. The first respondent relied upon the Social Networking Site (face book), showing photographs of the first petitioner with various male strangers, who according to first respondent are more than “friends”. It is asserted that the first respondent is living with his father, grand mother, and paternal aunt. There are three lady members in his house and his father has retired. 12. The first respondent has further filed additional affidavit contending that he has obtained police and hospital records against first petitioner through his friend which has been annexed to his affidavit. 13. The petitioners have responded to the said affidavit by filing further affidavit. In the additional affidavit, reliance is placed upon Rule l5.27 of the Family Law Rule 2004 for the 12 purpose of contending that the use of documents produced pursuant to subponea is for the purpose of case only and the contents of the documents or copies thereof shall not be disclosed to any person without the Court permission. In the instant case, no such permission was obtained from the Court by the first respondent while producing documents alongwith affidavit. The contentions raised by the first respondent about procuring documents pertaining to police record and hospital record against the first petitioner is totally vague and deliberately the first respondent did not disclose the name of the so called friend. The first respondent has filed further affidavit denying the contentions raised in the affidavit made by the petitioners 14. We have heard Mr. J.P. Sen, instructed by Shri. Dinesh Pednekar & Mr. Vatsal Shah, on behalf of the petitioners and Mr. Mukesh M Vashi for the first respondent and Mr. V.B. Konde Deshmukh learned APP for the state. 15. At the time of hearing of the petition, Shri.Sen, 13 learned counsel for the petitioners did not press the prayer (a) of the petition namely for dismissal of petition No.D75 of 2008, filed by first respondent before Family Court at Bandra, Mumbai and restricted the petition regarding issue of writ of habeas corpus and handing over the custody of minor child Ali to the petitioners. 16. The first respondent has raised preliminary objections to the maintainability of the present petition. Firstly, it is contended that in so far as prayer (a) of the petition is concerned, by that prayer the petitioners prayed for dismissal of the petition filed by respondent No.l before Family Court, Bandra at Mumbai. For the said relief, the petitioners will have to file the writ petition on the Civil Side. As already indicated the petitioners have not pressed the said prayer. Secondly, the petitioners have instituted the petition under Article 227 of the Constitution of India and have not invoked the jurisdiction of this Court under Article 226 of the Constitution of India. Finally, it is contended that the petitioners have an equal efficacious alternate remedy and the petitioners cannot maintain writ 14 petition for issue of writ of habeas corpus. This submission is on the premise that even if we treat this petition under Article 226 of the Constitution of India, the petitioners have an equal efficacious alternate remedy. We are not impressed by any of the preliminary objections raised by the first respondent. For the reasons to follow hereinafter, we reject the preliminary objections and hold that the present petition is maintainable. The learned counsel for the petitioners relied upon the following judgments:- i) Gohar Begum -vs- Suggi, AIR 1960 S.C. 93. ii) Smt SurinderKaur Sandhu -vs- Harbax Singh and anr, (l984) 3 S.C.C. 698. iii)Mrs. Elizabeth Dinshaw -vs- Arvand M Dinshaw and anr, (l987) l S.C.C 42. iv)Kamla Devi -vs- State of Himachal Pradesh and ors, AIR 1987, HIMACHAL PRADESH 34. v) Dhanwanti Joshi -vs- Madhav Unde, (l998), l S.C.C. 112, 15 vi)Sarita Sharma -vs- Sushil Sharma, AIR 2000 S.C. 1019. vii)Gaurav Nagpal -vs- Sumedha Nagpal , AIR 2009 S.C. 557, 17. Referring to the judgment of Apex Court, in the case of Gohar Begam (supra), reliance is placed on paragraph 7 of the judgment to contend that the first respondent has no legal rights whatsoever to the custody of minor child. The first respondent has stealthily brought the child to India. He has abducted the child. He has acted contrary to the orders passed by the competent court of Australia. In fact he has committed contempt of orders of Austrian Court. Our attention was invited to the following observations of Lord Campbell C.J. In R. V. Clarke (l857) 7 El & Bl l86, 119 ER 1217, “But with respect to a child under guardianship for nurture, the child is supposed to be unlawfully imprisoned when unlawfully detained from the custody of the guardian; and when delivered to him, the child is supposed to be set at liberty” 16 18. Reliance is placed on the said judgment to contend that a writ of habeas corpus can be pressed into service for granting custody of a child to the deserving spouse. In paragraph, l3 of the Judgment in Gohar Begum (supra), the Apex Court observed as under, “it is further well established in England that in issuing a writ of habeas corpus a court has power in the case of infants to direct its custody to be placed with a certain person. In R. v. Greenhil (l836) 4 Ad & El 624 at p 640 111 ER 922 at p. 927, Lord Denman, C.J. Said, “When an infant is brought before the Court by habeas corpus, if he be of an age to exercise a choice, the Court leaves him to elect where he will go. If he be not of that age and a want of direction would only expose him to dangers or seductions, the Court must make an order for his being placed in proper custody. See also (l857) 7 EL & BL 186 119 ER, l2l7, In Halsbury’s Law of England Vol ix, Art.l201 at page 702, it is said, “Where as frequently occurs in the case of infants, conflicting claims for the custody of the same individual are raised, such claim may be enquired into on the return to a writ of habeas corpus, and the custody awarded to the proper person”. 19. The petitioners rely upon the judgment of Kamladevi (supra) for the purpose of contending nature and purpose of 17 jurisdiction and in particular paragraph 11 thereof, which reads thus: “It is well established that in issuing the writ of Habeas Corpus in the case of infants the jurisdiction which the Court exercises is an inherent jurisdiction as distinct from a statutory jurisdiction conferred by any particular provision in any special statute. In other words, the employment of the writ of Habeas Corpus in child custody cases is not pursuant to, but independent of, statute. The jurisdiction exercised by the Court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its in fact ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity. The primary object of a habeas corpus petition, as applied to infants, is to determine in whose custody the best interests of the child will probably be advanced. In a Habeas Corpus proceeding brought by one parent against the other for the custody of their child, the Court has before it the question of the rights of the parties as between themselves, and also has before it, if presented by the pleadings and the evidence, the question of the interest which the State, as Parens Patriae, has in promoting the best interests of the child. The following passages at Pages 249, 280 and 281, paras 99, l48, and l49) extracted from and the cases cited in footnotes l0, l4 and l9 at pages 280 and 281 of the American Jurisprudence. Vol.39, Second Edition, make this position clear: Where the writ is availed of for the latter 18 purpose to determine controversies concerning the right to custody of the infant), the proceedings partakes of the incidents of a suit in equity and is considered to be one in rem the child being the res..........The Court in passing on the writ in a child custody case, deals with a matter of an equitable nature, it is not bound by any mere legal right of parent or guardian, but is to give his or her claim to the custody of the child due weight as a claim founded on human nature and generally equitable and just.......in short the child’s welfare is the supreme consideration, irrespective of the rights and wrongs of its contending parents, although the natural rights of the parents are entitled to consideration. An application by a parent through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the Court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody... Habeas corpus is a summary proceeding and, as applied to infants its primary object is to determine in whose custody the best interests of the child will probably be advanced. The Considerations Which Must Weigh with the Court in Awarding Actual Custody”. 20. The preliminary objection raised by the first respondent about maintainability of the writ petition on the ground that the petitioners have equally efficacious alternate remedy is without 19 any substance and is answered by the judgment of Apex Court, in case of Gohar Begum (supra) and Kamladevi (supra). We are treating the present petition under Article 226 of the Constitution of India. We, accordingly overrule the preliminary objections raised by the first respondent. 21. The Petitioners also relied upon the judgment of Apex Court, in case of Smt.Surinder Kaur Sandhu (supra) and in particular paragraph Nos 8, 9 and l0 thereof. In that case the marriage between the parties took place in l975 in the State of Punjab. Soon after the marriage the parties left for England where a boy named Pritpal Singh was born to them on October 24, l976. The relationships between the parties were strained and the husband was trapped by the Bershire Police who got the scent that he was negotiating with a hitman to have the wife run over by a car. The husband was convicted and sentenced to a term of three years for that offence. Ironically, it was the wife who intervened and succeeded in obtaining a probation order for the man who had attempted to procure her murder. The husband was released on probation on February 4, l982. The 20 period of probation expired on December 24, l982.While the wife was away at work on January 3l, l983, the husband removed the boy from England and brought him to India. On the same day wife obtained an order under Section 4l of the Supreme Court Act, l981 under which the boy became ward of the Court with effect from that date. In April, l983, the wife came to India and on May 5, l983 filed petition under Section 97 of the Code of Criminal Procedure, l973, asking for the custody of her son, before the Court of learned Judicial Magistrate First Class, Jagraon. The respondent relied upon section 6 of the Hindu Minority and Guardianship Act, l956 and opposed the petition on the ground that he was the natural guardian of minor boy. The order obtained by the wife under Section 4l of the Supreme Court Act, l981 on January 3l, l983 was confirmed on July 22, l983 by Mrs. Justice Booth of the High Court of Justice (Family Division), by that order, husband was directed to hand over the custody of the minor boy to the wife or her agent forthwith. She came to India again and then filed present petition before the High Court of Punjab and Haryana asking for the production and custody of her minor 21 son. The Apex Court dealt with the rival claims of the parties (in paragraph l0) and answered the question of jurisdiction in the following terms. “We may add that the spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver. The boy is a British citizen, having been born in England, and he holds a British passport. It cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody. The modern theory of Conflict of Laws, recognizes and, in any event, prefers the jurisdiction of the State which has the most intimate