IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY NINETH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION NO : 22411 of 2008 Between: Yetirajam Bhavani Prasad S/o.Yetirajam Jagannadha Rao 27 COYOTE PASS RD,SANTAFE,NM 87508 U.S.A ..... PETITIONER AND 1 The Commissioner of POlice, Visakhapatnam Visakhapatnam District 2 The Assistant Commissioner of pOlice, Pendurthi circle Visakhapatnam District 3 The Sub-Inspector of Police, Pendurthi Police station Visakhapatnam, Visakhapatnam District 4 Yethiraju Satya Vani W/o.Yetirajam Bhavani Prasad R/o.Plot No.14, Krishnarayapuram, village Pendurthy Mandal, Visakhapatnam District .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue an appropriate writ order or direction more particularly one in the nature of wir tof Habeas corpus declaring the action of the 4th respondent in detaining petitioner 2nd daughter Varsha aged one year 10 months without handing over her custody to the petitioner inspite of directions by the courts in U.S. is illegal, arbitrary, and unconstitutional and consequently direct the 3rd respondent to produce minor child Varsha before this Hon`ble court and hand over the custody of her to the petitioner and pass Counsel for the Petitioner:MR.N.RAVI PRASAD Counsel for the Respondent No.: THE ADVOCATE GENERAL The Court made the following : THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE K.C.BHANU Writ Petition No.22411 of 2008 Oral Order: (per D.S.R.Varma, J.) Heard Sri N.Ravi Prasad, learned Counsel appearing for the petitioner and the learned Assistant Government Pleader, representing the learned Advocate General, appearing for respondents 1 to 3. 2. This writ petition is ﬁled seeking to issue a writ of habeas corpus declaring the action of respondent No.4 in detaining petitioner’s 2nd daughter, by name Varsha, aged about one year and ten months, without handing over her custody to the petitioner in spite of directions by the Courts in the United States of America (‘the U.S.’, for brevity) as illegal, arbitrary and unconstitutional and consequently direct respondent No.3 to produce the minor child Varsha before this Court and hand over the custody of her to the petitioner. 3. The simple question involved in this writ petition is -- whether the custody of the minor child of the petitioner and respondent No.4 can be sought for in a writ of habeas corpus ? 4. The factual background appears to be that the petitioner and respondent No.4 are husband and wife. It is not in dispute that during their wedlock and while they were residing in the U.S., they were blessed with two female children and they were suﬀering from serious neurological aliment. The petitioner is a citizen of the U.S., and since the children have born in the U.S., they have also become citizens of the U.S., whereas respondent No.4, who is no other than the wife of the petitioner, is not a citizen of the U.S. While so, because of some internal squabbles, the wife came back to India along with the children and admitted one child, who was seriously suﬀering from aliment in a hospital and quite soon thereafter, the child died. 5. It is the contention of the learned Counsel appearing for petitioner that since no proper treatment was given to the child by respondent No.4, the eventual death of the child took place and therefore, he wanted the custody of the other child to the petitioner to give eﬀective treatment in the U.S. 6. It also appears that the petitioner moved the competent Court in the U.S., seeking custody of the child. The learned Counsel appearing for petitioner represents that the said Court in the U.S., passed orders directing the wife, who contested the proceedings by engaging a local attorney in the U.S., to give custody of the child to the husband and in spite of which, the custody of the child was kept by the wife herself, being the mother of the child. Since she has not been giving the custody of the child despite the orders passed by the foreign Court, the present writ petition, seeking a writ of habeas corpus, has been ﬁled by the husband. 7. In this backdrop, it is the contention of the learned Counsel appearing for petitioner that even though the wife suﬀered an order by the foreign Court, as regards the custody of the child, since she has been not willing to obey the orders of the said Court, the husband is entitled to move this Court, seeking a writ of habeas corpus, under Article 226 of the Constitution of India. 8. In order to substantiate the said contention, the learned Counsel appearing for petitioner relied on the judgment rendered by the apex Court in SURINDER KAUR SANDHU vs. HARBAX SINGH SANDHU[1]. 9. We have carefully gone through the said judgment. It looks somewhat similar to the facts of the present writ petition. But, what has been ultimately decided by the apex Court in the said case was -- by way of protecting the wife against the burden of litigating in an inconvenient forum, which the wife and the husband had left voluntarily in order to make their living in a foreign country. In the said case, both the spouses and the oﬀspring were the citizens of a foreign country. Therefore, the apex Court permitted to contest the individual rights with a further direction that the custody of the child shall be given to the mother for further course of action. 10. It is to be seen in the said judgment that it is nowhere contended that the High Court of this country had jurisdiction to issue a writ of habeas corpus nor that issue had fallen for consideration before the apex Court. Further, it appears the child in that case was governed by the provisions of the Hindu Minority and Guardianship Act, 1956 and the wife obtained an order under Section 41 of the Supreme Court Act, 1981, until the boy became the ward of the Court with eﬀect from the date of the order. Therefore, since the present question as to whether the jurisdiction of this Court was not decided by the apex Court, the said judgment is not applicable to the case on hand. 11. Reliance is placed by the learned Counsel appearing for petitioner on the judgment of the apex Court i n ELIZABETH DINSHAW vs. ARVAND M.DINSHAW [2]. The facts in that case are also appear to be similar to the facts of the present case, but not quite similar. The facts in the said case are having some distinct nature and not comparable to the case on hand before this Court. In the said case, it appears that the mother ﬁled a petition seeking a writ of habeas corpus seeking handing over the custody of the child under the order of a competent Court. It was the ultimate ﬁnding by the apex Court that it was a case of abduction by the mother basing on the facts and circumstances of that case. 12. Further, it is to be seen that in the said case, the petition for divorce was moved in the Circuit Court for the County of Saginaw, Michigan, U.S., and there was a decree passed by that Court and despite a decree, the wife appears to have came back to India along with the child. In those circumstances, writ of habeas corpus appears to have been filed by the husband. Therefore, the facts of that case also are not very similar to the facts of the present case. 13. In the instant case, it is not in dispute that the petitioner and respondent No.4 are still husband and wife in the eye of law, inasmuch as, no decree for divorce was passed passed either by a competent Court in the U.S., or in India. In view of the matter, the mother, being the natural guardian, came back to India along with the child and the custody of the child is with respondent No.4. If really there is a decree passed by the foreign Court against respondent No.4, the petitioner has to proceed against respondent No.4 seeking custody of the child, as permissible under law, invoking the provisions of the Code of Civil Procedure, but certainly not by way of seeking a writ of habeas corpus. No material is placed before this Court demonstrating the fact that respondent No.4 suﬀered a decree passed by a foreign Court, whereby there was a direction given to her to give custody of the child. These are the factual aspects, which are to be investigated into by a competent Court. 14. Therefore, we dispose of the writ petition with liberty to the petitioner to proceed against respondent No.4 seeking custody of the child, in accordance with law, for the simple reason that the custody of the child prima facie is not illegal nor the same is established, and the said contentious issues are to be established in a competent civil Court only. Therefore, since there is no illegal custody of the child as such, we are not inclined to issue a writ of habeas corpus as sought for. 15. With the above observations and directions, the writ petition is disposed of, at the stage of admission. ___________________ JUSTICE D.S.R.VARMA ___________________ JUSTICE K.C.BHANU 29th October, 2008. Ak ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRK} [1] AIR 1984 SC 1224 [2] AIR 1987 SC 3