"Welfare Of Children Most Important" Gujarat High Court Allows Habeas Corpus Petition In Favour Of Mother And Directs Children's Return To New Zealand

"Here is the husband who had with predesigned tact had taken the children away from natural guardian mother and the mother's passport also was taken away by him ensuring that she could not travel and could not follow him up. He also simultaneously initiated the legal proceedings for custody and divorce knowing fully well that the wife's passport was with him and she was unable to come to India."

The Court made this observation while hearing a Habeas Corpus petition filed by the Petitioner-Mother seeking custody of her three children-the eldest aged 6 years and the twins aged 5 years. She expressed that the Respondent-Husband had taken away her children from New Zealand where she and her children were citizens, and the husband was a Permanent Resident. She averred that the children were brought to India under false pretexts and admitted in a school in Mehsana, Gujarat. She alleged that to avoid her tracing the children, the Respondent-Husband shifted the children to Bangalore. The family court had rejected the Respondent-Husband's attempt to gain custody of the children vide a civil application in 2018, as well.

In the proceedings initiated in New Zealand, as well, the NZ High Court ('NZ HC') had requested all judicial and administrative bodies in India to render assistance in returning the children back to New Zealand in the custody of the mother, since they were removed from the jurisdiction "unlawfully" Significantly, the Gujarat High Court noted that the NZ HC had applied the Hague Convention on the Civil Aspect of International Children Abduction to which India was not a party. Yet, the High Court insisted that even though the orders of the NZ HC were not directly enforceable in India, keeping in mind the children's interests, the High Court respected the orders made by the foreign courts.

Key Contentions

Primarily, the Barrister practising in New Zealand for over 20 years, in her Affidavit submitted that she represented all three children before the NZ HC. She affirmed that the Respondent-Husband had not returned the children to New Zealand and therefore, urged the Gujarat HC to pass orders in favour of the children's return to their country.

The Petitioner-mother, inter alia, submitted that she was gainfully employed in New Zealand and could run expenses and medical care and other necessities of her children. The social worker appointed in New Zealand affirmed that the children could live with her with safety.M

Per contra, the Respondent-Husband refuted such allegations and contested that he was the biological father of the children and therefore, there was no illegal detention. Further, he had filed divorce proceedings before a family court in Ahmedabad. The Petitioner-mother knew of the husband's address and contact number and therefore, Habeas Corpus could not be sought. The Petitioner-Mother also had the NZ HC order, so she did not require an additional order from the Gujarat High Court. She could initiate Execution Application in New Zealand to gain custody of the children and therefore, the instant Court need not interfere. Further averring that the Petitioner-Mother was careless, a danger to the children, short-tempered and uninterested in carrying forward the marriage and family duties, the Respondent-Husband relied on Nithya Anand Raghavan vs. State (NCT of Delhi) [(2017) 8 SCC 454], to contend that the summary jurisdiction for the custody of the children needs to be exercised only if the Court to which the children has been removed is moved, promptly. Per the Respondent-Husband, the Court must examine at the threshold whether the children were in unlawful custody. (2017) 8 SCC 454

Judgement

The Court took into cognizance the precedents on custody of children in India. Primarily, in the Nithya Raghavan judgement, the Apex Court had held that if the children were well-settled in the new environment or would expose the children to physical harm then the Court must, in the overriding benefit of the children, decline the relief of return of child. The Court must not grant primacy to the judgement of the foreign court if it is not in the interest of the children. Responding to the averment about the Habeas Corpus petition, the Bench opined that the Habeas Corpus petition is "essentially a procedural writ dealing with machinery of justice." In the instant case, the Court was required to consider the factum of interest of children and all surrounding circumstances in which the foreign court had passed the judgement. The first strike principle in such cases should not be invoked, per the Bench. In Nitya Raghavan, as well, the Apex Court required Courts to elaborately inquire into custody on a case-to-case basis. Accordingly, the High Court opined that the writ jurisdiction of the High Court was activated due to the father not allowing access to the children to the mother. Further stating that the children were deprived of the "natural guardianship" of the mother, the Court rejected the maintainability contention of the Respondent-Husband.

The Bench admitted that the eldest son had been removed from New Zealand since 2015 and there was delay on part of the Petitioner-Mother, but she had initiated proceedings in New Zealand while keeping her employment. Citing section 7 of the Family Courts Act 1984, the High Court upheld the jurisdiction of the Civil Court in the instant case, as well. The Court also rejected the "bickering" of the husband and wife and considered the overarching "factum of interest" of child as the key point of adjudication. Accordingly, the Respondent-Husband was directed to leave the children in New Zealand and bear the expense of the air travel tickets.

Case Title: SAPNA GEHLOT W/O DEVENDRA SINGH GEHLOT THRU POA KULDEEP SINGH CHAUHAN Versus STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 34

Case No.: R/SCR.A/3419/2020