IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY THE SEVENTHDAY OF APRIL TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE V.SURI APPARAO WRIT PETITION No.27910 of 2010 Between: Lingineni Bharat Bhushan ..... PETITIONER AND Government of Andhra Pradesh, Rep.by Secretary, Home Department, Secretariat, Hyderabad and 6 others .....RESPONDENTS The Court made the following: THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON'BLE SRI JUSTICE V.SURI APPARAO WRIT PETITION No.27910 of 2010 ORDER: (per Hon’ble Sri Justice V.Eswaraiah) The petitioner Lingineni Bharat Bhushan, represented by his father and General Power of Attorney Lingeneni Rangarao filed this Writ of Habeas Corpus, seeking direction to his wife-R4 namely Smt.Mandava Mohana Nagalakshmi to produce his son-R7, namely Master Lingineni Harshal, aged two years before this Court and to handover the custody of his son to him as per the orders of the 296th Judicial District Collin County, Texas, United States of America (for short “USA”) in Family Citation Cause No.296-51937-2010 dated 02.08.2010. 2. The father of the petitioner sworn the writ affidavit in the capacity of General Power of Attorney Holder of the petitioner stating that the petitioner after passing the Engineering Graduate in the year 2000 left for USA in the month of February 2006 for the purpose of employment as a Software Engineer in the State of Texas. Subsequently, he switched his job to Nu Info Systems Inc. from October 2007 onwards. The petitioner’s sister Neeraja is also residing at Texas. The 4th respondent is the daughter of maternal aunt of the petitioner. The marriage of the petitioner with the 4th respondent was celebrated on 14.12.2006 at Tenali and the marriage was also registered in the Registrar’s Office, Tenali on 28.12.2006. Then the petitioner has flown back to USA on 31.12.2006 to resume his duty. The petitioner made necessary arrangements for the joining of the 4th respondent by 31.01.2007, but as the 4th respondent was studying B.Tech 3rd year course, she did not join the petitioner even after the annual examination held in the month of May, 2007, on the ground that she wanted to finish the 4th year examination. The petitioner came back to India on 22.05.2008 and took the 4th respondent to USA on 08.06.2008 and started living together in USA. It is stated that the 4th respondent was not cooperative with the petitioner and she was a hen pet by her parents who are Respondents Nos.5 and 6 herein and in the entire day she used to spend her time in chatting with her parents and friends via internet media. While so, the 4th respondent conceived in the month of September 2008, but the 4th respondent was not showing interest in having the child as she was interested in pursuing her higher studies. The petitioner convinced the 4th respondent indicating that she can pursue her studies after the baby is born, and eventually the 4th respondent delivered a male child i.e. 7th respondent herein on 24.06.2009 at Texas, USA. a). It is stated that after lapse of two months, the 4th respondent left for India on 07.09.2009 along with the minor child and jewelry assuring that she will come back in a month’s time. After coming to India, the 4th respondent changed her attitude and informed the petitioner that she will alone come to USA leaving the 7th respondent in India at her parents house so that the baby would not be hurdle to pursue her higher studies when she is attending the University in USA. The petitioner did not agree for the said proposal and insisted the 4th respondent to come along with 7th respondent, but the 4th respondent did not heed the request of the petitioner and all his attempts to get back his wife and child became vain. b). The petitioner approached the 296th Judicial District Collin County, Texas, USA and filed petition against the 4th respondent on 19.04.2010 and sought for divorce as well as the custody of the minor child. The said case was numbered as 296-51937-2010. Notice along with the copies of the petition was served on the 4th respondent and on receipt of the notice on 01.05.2010 the 4th respondent filed a written answer. In the written answer she stated that she does not have any capacity to engage an Attorney to defend her case and also stated that she could not come to USA as her VISA was expired on 17.10.2009, and taking advantage of the same, the petitioner filed the case in her absence. She further stated that the petition filed by the petitioner is not maintainable in the 296th Judicial District Collin County, Texas, USA. In so far as the custody of the minor child-7th respondent is concerned, she stated that the child is under tender age and he compulsory requires his mother’s care, and love and affection between the mother and child are inseparable. She further stated that the petitioner himself was always angry for small things and always abuses her stating that she was not fit for him and due pressure of his relatives, he married her. The petitioner never bothered about the care of the minor child and did not spend single dollar for the welfare of the child and the petitioner did not make any phone call from 08.09.2009 to 08.05.2010 and as such the purpose of filing of the petition is only to harass her by separating the minor child from her custody, and accordingly, sought for dismissal of the petition filed by the petitioner. c). It is stated that after filing the written answer by the 4th respondent, the 296th Judicial District Collin County, Texas, USA fixed the date of hearing on 02.08.2010 and hearing notice was served on the 4h respondent via FedEx on 04.06.2010. Thereupon based on the testimony of the petitioner, the 296th Judicial District Collin County, Texas, USA passed orders granting decree of divorce, dissolving the marriage, granted full custody of the child to the petitioner and also granted visitation rights to the 4th respondent with property distributed as per her claim in the written statement. The 4th respondent was also directed to return 650 grams of gold as well as cash of 7014 dollars to the petitioner. The petitioner also informed about the said orders to Respondents Nos.4 and 5 over telephone on 14.08.2010 requesting to obey the orders of the Court. On the other hand, the 5th respondent threatened that if any steps are being taken from removing the child from their custody, criminal cases would be lodged under Sec.498A and domestic violence Act and also demanded Rs.25 lakh towards maintenance. d). It is stated that the 4th respondent with the support of her parents ignored the USA Court order and filed Guardian O.P.No.1111/2010 on 03.09.2010 before the District Court, Guntur for declaration of her guardianship in respect of the 7th respondent and for the custody of the 7th respondent for a period of five years. She also filed I.A.2982/2010 for grant of temporary protection and custody of 7th respondent alleging that the petitioner may take back the child pursuant to the decree obtained by him in USA Court and the said I.A. is coming up for enquiry, in which the petitioner was set ex parte. It is further stated that the 4th respondent also filed suit in O.S.255/2010 on the file of the Principal Senior Civil Judge, Tenali against the petitioner for her maintenance as well as for the maintenance of the 7th respondent, in which a mention was also made about the orders dated 02.08.2010 passed by the 296th Judicial District Collin County, Texas, USA with regard to the decree of divorce and custody of the minor child, and further stated that the petitioner obtained the said orders by playing fraud which are not binding on her. It is stated that the petitioner himself deserted her and her minor child, and after coming to India, the 4th respondent is living with her minor child in her parents house at their mercy and she is presently studying and therefore, she requires Rs.10,000/- per month including her day-to-day expenses and minor requires Rs.5,000/- per month for his day-to-day expenses including medicines, clothes etc., and sought for maintenance amount @ Rs.15,000/- per month, in which no written statement was filed by the petitioner. It is stated that the 4th respondent after coming to India in the month of September she did not evince any interest to join the petitioner and failed to take steps in renewing her VISA which was expired on 17.10.2010, as she decided to stay in India. Therefore, he was constrained to file the said petition for divorce and custody of minor child which were allowed by the 296th Judicial District Collin County, Texas, USA on 02.08.2010. Thereafter only the 4th respondent filed the aforesaid cases for maintenance and custody as well as guardianship of the 7th respondent to defeat the orders of the 296th Judicial District Collin County, Texas, USA. Thus, it is the case of the petitioner that the 4th respondent has deliberately violated the orders and continuously keeping the child in her custody illegally and therefore, the 7th respondent, the detenue is in illegal custody of the 4th respondent and requires to be produced before the Court. e). It is further stated that the 7th respondent is a citizen of USA and accordingly, the USA Court alone is competent to pass orders for custody of the minor child taking into consideration of the welfare and best interest of the minor child in case the marriage has become insupportable because of the discord of personalities between the wife and the husband. The violation of the said orders amounts to abduction of the minor child and the 4th respondent is liable to be prosecuted as per the Laws of USA. It is stated that once the custody was ordered by the Courts of America, the Indian Court cannot go into the said aspect as per the principles of Comity and the child requires to be brought back to USA to the place where he was removed to enable the parties to establish the case before the Courts in the native state of child i.e. USA for modification of the existing custody orders. The petitioner cited various cases of the Hon’ble Supreme Court with regard to legality and validity of the orders passed by the 296th Judicial District Collin County, Texas, USA and also justifying the action of the petitioner in filing the writ petition through his father, who sworn the writ affidavit on the ground that the petitioner is now in USA and therefore, the petition was filed through his father seeking custody of the minor child in terms of USA Court order. 3. The 4th respondent filed counter and additional counter stating that the writ petition filed based on the decree passed by the 296th Judicial District Collin County, Texas, USA is totally misconceived and untenable in law. The writ petition filed by the father of the petitioner is nothing but to abuse of process of the Court. The entire dispute between the petitioner and the 4th respondent is the subject matter of the civil dispute, and therefore, the 4th respondent filed GEOP.111/2010 on the file of the Principal District Judge, Guntur for custody and guardianship of the minor child-7th respondent. She filed suit in O.S.255/2010 on the file of the Senior Civil Judge, Tenali for maintenance. She also filed suit in O.S.254/2010 on the file of the Principal District Judge, Guntur seeking declaration of the decree that has been passed by the 296th Judicial District Collin County, Texas, USA as null and void. When such civil disputes are pending, the invocation of Article-226 of the Constitution of India seeking production of the minor child is illegal and unsustainable. Various allegations made in the affidavit filed by the father of the petitioner are totally false and incorrect and the allegations are far-fetched, false and without any basis. The entire facts have been narrated by the 4th respondent before the civil competent Court where the matter is pending. The petitioner, husband of the 4th respondent has hounded, harassed and ill-treated the 4th respondent for which he has to answer in properly constituted matter. The averments made in the present writ petition are incorrect and the writ petition is devoid of any merits. The 4th respondent did not accept the jurisdiction of the 296th Judicial District Collin County, Texas, USA. The petitioner as well as the 4th respondent being Hindus by religion, faith and they are governed by Hindu Marriage Act and the Courts having appropriate jurisdiction on the ground conceived under the Hindu Marriage Act can only be competent to pass a decree for divorce or grant relief thereunder. But the 296th Judicial District Collin County, Texas, USA could not have taken upon itself on the basis of the application filed by the petitioner and grant of decree of divorce in respect of a private personal law of the petitioner and the 4th respondent, being both of them are Hindus by religion and faith. Therefore, they could only approach a competent Court having jurisdiction under Hindu Marriage Act having got married in India and being permanent resident of India, Courts in USA have got no jurisdiction nor was that Court conferred with any jurisdiction nor the 4th respondent submitted herself to the jurisdiction of the said Court. Therefore, the order of the said Court is not binding and therefore, the decree was challenged in O.S.254/2010 before the Principal District Judge, Guntur and the same is pending. However, the child is 15 months old and still needs the mother’s lap which is the cradle for a child to which the 4th respondent alone as the mother can give and shower love and affection which the child needs at this moment which should be the sole consideration for Courts to consider. On the other hand, the petitioner herein has filed the instant application for custody based on a foreign Court decree which is not binding and much more the father-in-law of the 4th respondent filed the application to have the child custody without any bona fides and therefore, the same is not maintainable. a). In the additional counter, the 4th respondent further stated that under Secs.13 and 14 of CPC the foreign judgment is not conclusive where it appears on the face of the proceedings to be founded on an incorrect view of the international law or a refusal to recognize the law of India in cases in which such law is applicable; where the proceedings in which the judgment was obtained are oppose to natural justice and where it has been obtained by fraud. It is stated that as per the admitted facts, the petitioner and the 4th respondent got married on 14.12.2006 at Tenali, Andhra Pradesh and the 4th respondent was granted H4 VISA (dependent VISA) from 08.06.2008 upto 07.09.2009 and she lived in that period in USA and the child was born on 24.06.2009. The 4th respondent along with 7th respondent left for India along with the parents of the petitioner in the same flight on 07.09.2009. The VISA of the 4th respondent valid for two years was expired on 17.10.2009. While the 4th respondent along with the 7th respondent were in India from 07.09.2009 onwards, the petitioner filed petition before the 296th Judicial District Collin County, Texas, USA on 19.04.2010 and obtained a decree dissolving the marriage and also for grant of child custody by judgment dated 02.08.2010. Admittedly, after expiry of the VISA alone, and when the 4th respondent along with her child 7th respondent and the parents of the petitioner came to India in the same flight on 07.09.2009, the petitioner filed petition on 19.04.2010 before the Foreign Court and obtained a decree on 02.08.2010. While she was in India, filing the said petition and obtaining orders are nothing, but in fraud and in abuse of process of Court. As 4th respondent was not having VISA nor any arrangements were made by the petitioner either for extension or for her travel to USA to defend the case and therefore, the 4th respondent submits that the petitioner obtained the orders from the 296th Judicial District Collin County, Texas, USA in a fraudulent manner. It is further stated that she never removed the child from the custody of the petitioner in a fraudulent manner, nor at that time was any proceedings pending before the Court of USA. The petitioner suppressed the fact about the travel of the 4th respondent along with the child, though in fact the parents of the petitioner travelled in the same flight as per the arrangements made by the petitioner on 07.09.2009. Therefore, in the said circumstances, it cannot be said that the foreign court judgment is conclusive in the manner in which the petitioner obtained the decree of divorce. It is further stated that the foreign court had no jurisdiction because both the parties are Hindus by religion and faith, and therefore, the judgment was not rendered on merits because the 4th respondent did not appear and she had no opportunity to appear. Therefore, the entire proceedings founded are incorrect or refusal to recognize the law of India i.e. Hindu Marriage Act. The initiation of the proceedings in American Court is an abuse of process of the Court and against the principles of natural justice. It is stated that as the application filed by the petitioner in USA Court in the absence of the 4th respondent in USA seeking a decree of divorce and custody of the minor child in a fraudulent manner, the decree cannot be recognized in Indian soil. In support of her contentions the 4th respondent has placed reliance on various judgments of this Court as well as the Hon’ble Supreme Court. 4. Before placing reliance on various judgments, it is required to be considered the petition filed by the petitioner and the decree obtained by him from the 296th Judicial District Collin County, Texas, USA. 5. The petitioner stated before the 296th Judicial District Collin County, Texas, United States of America that he has been a domiciliary of Texas for the preceding six months period and a resident of the country for the preceding 90 days period and the 4th respondent herein is native of Tenali, Andhra Pradesh, India and they married on 14.12.2006 and ceased to live together as husband and wife on or about 07.09.2009, and a male baby was born on 24.06.2009. In spite of giving opportunity, the 4th respondent did not join the petitioner, and the said petition was filed in a proforma without indicating anything about her departure from United States and the existence of VISA, but ultimately prayed for the grant of decree of divorce and other reliefs for the grant of temporary injunction and for damages for pre-judgment and post-judgment against his wife and father-in-law, respondents Nos.4 and 5 herein. 6. A notice dated 19.04.2010 was issued to the 4th respondent to Tenali address of Andhra Pradesh commanding her to appear before the 296th Judicial District Collin County, Texas, USA after expiry of 20 days from the date of service of notice. The 4th respondent sent written answer on 11.05.2010 stating about the expiry of her VISA on 17.10.2009 and further stated that the petitioner did not make any arrangements for renewal of VISA and taking advantage of her absence, the said petition was filed. She stated that her place of birth is Tenali, Guntur District, Andhra Pradesh and her marriage took place on 14.12.2006 at Tenali and their marriage was registered under the Hindu Marriage Act and the relief sought for is beyond the jurisdiction of the Hindu Marriage Act, and the American Court has no competent jurisdiction to entertain the said petition. 7. We have perused the final decree dated 02.08.2010 passed by the 296th Judicial District Collin County, Texas, USA. The order shows that the 4th respondent did not appear and wholly made default and considered the case based on the petition of the petitioner alone and stated about the various rights and duties of the petitioner and after noticing about the date of birth of the 7th respondent as 24.06.2009, observed that the 7th respondent is habitual resident of United States. By the said order, the 4th respondent is prohibited from removing the 7th respondent from Texas, United States and directed to surrender the passports of respondents Nos.4 and 7 and further prohibited the 4th respondent from applying on behalf of 7th respondent for new or replacement of passport or international travel VISA, and the American Consulate or Embassy in India are authorized to take any and all reasonable steps or measures to prevent the 4th respondent from abducting the 7th respondent and returning the child to the petitioner, and granted permanent injunction against the 4th respondent from disrupting or removing the 7th respondent from the school or child care facility in which the 7th respondent is enrolled. 8. The question that arises for consideration is whether there was any positive order from the 296th Judicial District Collin County, Texas, USA, directing the 4th respondent to handover the custody of the 7th respondent child to the petitioner, enabling the petitioner to file a Writ of Habeas Corpus for production of the child on the ground that the 7th respondent is in illegal custody of the 4th respondent. 9. There shall be mandatory order positively directing the 4th respondent to handover the custody of the child to the petitioner, then there cannot be any doubt that the Foreign Court judgment is binding on the 4th respondent. The petition filed by the petitioner before the 296th Judicial District Collin County, Texas, USA is for grant of divorce and temporary injunction and for damages for the post and pre- judgment. Temporary injunction sought for is only for the safety and welfare of the child. The final decree was passed from the potential risk of the international abduction of the 7th respondent by 4th respondent and the 4th respondent is prohibited from removing the 7th respondent from Texas of United States and to surrender the passport issued to the 4th respondent and 7th respondent and also prohibiting the 4th respondent from applying on behalf of the 7th respondent for a new passport and abducting the 7th respondent. 10. We are of the opinion that the orders passed by the 296th Judicial District Collin County, Texas, USA are only on the assumption that both respondents Nos.4 and 7 are in the United States and therefore ordered that the 4th respondent is prohibited from removing the 7th respondent from Texas of United States and preventing the 4th respondent from abducting the 7th respondent. We are also of the opinion that even as per the judgment of the 296th Judicial District Collin County, Texas, USA, the 4th respondent is not under legal obligation either to give the custody of the child to the petitioner or stay in the limits of Texas, United States by obtaining the extension or renewal of VISA, when she was not at all in United States much prior to the date of filing of the application till date. 11. The learned counsel for the petitioner Sri C.Padmanabha Reddy, in support of his contentions, placed reliance on the judgments in the case of Sarita Sharma v Sushil Sharma[1], unreported judgment of the Hon’ble Supreme Court in the case of Dr.V.Ravichandran v Union of India[2] and unreported judgment of the Hon’ble Supreme Court in the case of Shipa Aggarwal v AviralMittal & anr.[3]. We have perused the above judgments. In all the cases, the child born in Americ was removed from USA despite the orders of the Court of that country, and therefore, the orders were passed for production of the child so as to enable the writ petitioner to make all arrangements for VISA, travel and expenses for taking back the child to the United States so as to enable the concerned respondent therein to move the