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 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.

A division bench of Justice Alok Aradhe and Justice Vijaykumar A Patil dismissed the petition filed by the father, it said, “The interim custody of the son has been granted to the wife by an interim order dated 08.06.2017 passed by the family court. The aforesaid interim order is still in force. Therefore, in violation of the aforesaid interim order, which binds the parties, this court in exercise of extraordinary jurisdiction would not direct repatriation of the son to Germany.”

The petitioner claimed that the wife brought the son to India without obtaining the consent of the petitioner. The child's upbringing will be better in the German system as the son is a German citizen.

Further it was said “As per United Nations Conventions on Human Rights (UNCRC), the minor child should return to Germany. Under Section 2(2) of Commission for Protection of Child Rights Act, 2005, all the rights of children in UNCRC are incorporated in Indian Domestic Law and the Indian Courts can apply international treaty obligations to domestic cases.”

Moreover, it was said the petitioner is willing to abide by such terms and conditions as may be imposed by this court and will take care of all financial needs of the wife in case she shifts to Germany.

It was also said that a petition was filed on 17.05.2017 before the jurisdictional court in Germany seeking custody of the son. However, by the time i.e17.05.2017, 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 Germany the wife had already landed in India with the son.

The wife opposed the plea saying the son is not in her illegal custody. The petitioner and wife are pursuing the alternative remedy of custody and guardianship in respect of the son. The son has been living in Bangalore for the past 5 years and the family court at Bangalore is the most suitable forum to decide the custody of guardianship of the son.

On going through the records the bench noted that the principle of comity of courts is salutary in nature, yet it cannot override the consideration of best interest and welfare of the child.

It observed “The principle of comity of courts in the facts of a case has to yield to paramount consideration i.e., interest and welfare of the child, which has to be examined in the facts of each case. The issue with regard to the best interest and welfare of the child has to be answered bearing in mind the totality of facts and circumstances of each case.”

Noting that the son is presently residing with the mother and his grandparents in Bangalore, in an atmosphere which is conducive to his overall growth. It opined “The presence of grandparents and their love and affection for the son is needed for better growth of the son and the same would not be available in Germany where the petitioner stays alone.”

The bench held “At this point of time, if the wife is directed to shift to Germany, the environment of the child would suddenly and abruptly be changed which would disturb the son's daily routine and his education in formative years.”

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.”

Following which it held “No exceptional circumstances are made out by the husband to demonstrate that the son should be repatriated to Germany and in case, the son continues to stay with the wife in Bangalore, it would not be in the interest of the son. No material, which is convincing or persuasive enough, has been produced by the petitioner for grant of the relief.”

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.”

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.”

Accordingly it dismissed the petition.

Case Title: ABC Vs XYZ

Case No: W.P.H.C. NO.46 OF 2022

Citation: 2023 LiveLaw (Kar) 104

Date of Order: 09-03-2023

Appearance: Advocate Shadan Farasat a/w Advocates Shyam Harindar, Raghuram Cadambi for petitioner.

HCGP Thejesh P for R1.

Advocate Anu Changappa for R2-R4.

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