Ali Vs. State of Maharashtra & Ors  Insc 310 (24 July 2003)
Hegde & B.P.Singh.
O R D
this petition under Article 32 of the Constitution of India, the petitioner
primarily seeks a writ in the nature of habeas corpus directing respondent
Nos.2 and 4 to produce her minor children and hand-over the custody of the said
minor children to the petitioner along with their passports and travel
documents. The petition is based on the fact that the petitioner is the natural
mother and de facto guardian of the minor children and that her husband is
serving a jail-term in the United States of America, and that she has obtained
an order of the competent court in the USA for the custody of the minor
children, therefore, their custody with the second respondent is an illegal
custody, consequently she is entitled to the relief prayed for by her in the
No.4 who is the paternal grand-mother of the children in question, has filed a
counter and has brought to our notice that the children in question are in her
custody by virtue of an order made by a competent Family Court at Nagpur in a
petition filed by her son to which petition the writ petitioner was a party,
and though the said writ-petitioner has challenged the said order of the Family
Court in appeal before the High Court of Bombay, Nagpur Bench, she withdrew the
same, hence, the said order of the Family Court granting custody to her has
become final so the custody of the children with her was not in any manner
illegal, consequently the petition in the nature of habeas corpus is not
maintainable. She also contended that the Family Court while granting the
custody of the minor children to her has taken note of the order made by the
court in the USA in regard to custody of the children which order the Family
Court had held to be one without jurisdiction and not a decree, notice of which
can be taken by Indian courts under section 13 of the CPC.
have heard the arguments of the learned counsel for the parties and are in
agreement with the submissions made on behalf of respondent No.4. The custody
of the minor children having been awarded to the 4th respondent by a competent court,
cannot be said to be an illegal custody, unless and until the petitioner gets
that order set aside. Therefore, in our opinion, the petitioner cannot seek
relief in this habeas corpus petition .
counsel for the petitioner, however, submitted that the petitioner will take
necessary steps to either get the order of the Family Court set aside or
modified but till such time she should be given the custody of the children
since she has come all the way from the United States to be with them.
submitted that the writ petitioner-mother is a holder of post- graduate degree
in English literature and has undergone training in child psychology. He also
submitted that in Nagpur, she resides with her family and
her brother is the Manager of a School, therefore, she is qualified to look
after the children better than the 4th respondent who is now aged over 80 years
and does not have the necessary help to look after these children. This
argument of the learned counsel for the petitioner is rebutted by the learned
counsel appearing for the 4th respondent who contends that eversince the order
of the Family Court, the children are in the custody of the grandmother without
there being any complaint of their welfare being in any manner either ignored
or jeopardised. He also submitted that the petitioner who has since remarried
has a child from her second wedlock and she having not challenged the order of
the Family Court, cannot in the guise of this habeas corpus petition, seek
interim custody of the children.
aware that having held that the petition in question is not maintainable, we
cannot grant the custody of the children to the petitioner even though she is
to do complete justice, we can pass such orders which is appropriate in the
facts of the case as also in the interest and welfare of the minor children.
Learned counsel for the 4th respondent in this regard submitted that there is
already a consent order of the Family Court made on 15.9.1998 which gives the
petitioner sufficient visitation rights which order has not been challenged by
the petitioner, therefore, there is no need to pass any other order in regard
to the petitioner's visitation rights.
considered the arguments addressed on this point, we think it is necessary to
issue certain directions which may be in the nature of modification of the
consent visitation rights given to the petitioner by the Family Court dated
other things, we are inclined to pass the following order on the ground that
the consent order referred to by learned counsel for respondent No.4 is of
15.9.1998 and a lot of time has passed since then and the children also have
grown up and the writ petitioner has now been staying in India for a
considerable length of time, therefore, in the interest of justice. we make the
following order :
order shall be in force till such time as the Family Court, Nagpur, on any
application made by either of the parties thinks it appropriate to modify the
same for good and valid reasons. The terms of this order granting visitation
rights to petitioner will be as follows :
petitioner herein – Saihba Ali – shall be entitled to take her children,
namely, Nida, the minor daughter and Ali, the minor son, on every week day from
4.30 to 7.30 p.m. She shall then bring back the children to the house of their
paternal grandmother and leave them in the custody of respondent No.4 or any
other responsible person in that house.
Saturdays and Sundays the children can be taken by the writ petitioner from the
4th respondent's residence from 12 Noon to 7 p.m. and brought back to the
residence of respondent No.4 and handed-over to the custody of the 4th
respondent or any other responsible person in the said house.
present, the children are taking tuitions between 8 and 9.30 p.m. from Monday
to Saturday which would be a burden on the children, therefore, the writ
petitioner who claims to be qualified to give tuitions to the children with the
assistance of her family, shall take necessary steps to coach/tutor the
children during the time they are in her custody and the children shall not be
subjected to any additional tuition.
progress of the children in their studies shall be evaluated from their marks
obtained by them and the report of the School teacher made based on the results
of the examinations conducted by the School which we are told is in the month
of November, 2003. We have been told that the immediate next examination will
be in the month of August, but we think it will be too short a period to assess
the effect of petitioner's tuition on the children's education.
told that the passport of the petitioner is in the custody of the Family Court.
It shall remain so until ordered otherwise by the said court.
deliberate or willful disobedience of the letter and spirit of this order would
entail this order being revoked even by the Family Court.
stated above, it will be open to the parties to make suitable application to
the Family Court to make such changes as it thinks necessary or to make the
regular final order in regard to the custody of the children.
change either in the nature of interim arrangement or as a final order will be
made by the Family court on the materials produced by the parties without in
any manner being influenced by this interim order.
are at liberty to make such application as they think appropriate before the
writ petition is disposed of in the above terms.