Budihal R.B. ORDER
1. Petitioner is the husband of respondent No. 2 (contesting respondent). The issue involved in this writ petition is the custody of two minor children (Lakshmi Prasad and Ananth Prasad) born to them, who are presently in the custody of respondent No. 2 (mother of the children). The petition is filed seeking the writ in the nature of Habeas Corpus, for a direction to the respondent No. 2 to produce the children before this Court. Certain further directions are also sought for to cause return of the minor children to the jurisdiction of High Court of Justice Family Division, UK, in compliance with the order dated 29.02.2016 passed by the High Court of Justice Family Division, UK, to enable the minor children to go back to UK, upon her failure to do so, the respondent No. 2 be directed to handover the custody of minor children to the petitioner to enable him to take the minor children back to the jurisdiction of UK Court and also to direct respondent No. 2 to hand over the requisite documents such as passport and other travel documents of the minor children Lakshmi Prasad and Ananth Prasad, which are in her custody, to the petitioner in order to facilitate return of the minor children to UK.
2. The brief facts as pleaded in the petition are that daughter Lakshmi Prasad is a permanent resident of UK and Master Ananth Prasad is a UK citizen holding a British Passport; both the children have been illegally and unlawfully removed by respondent No. 2 from UK; petitioner is the husband of respondent No. 2 and a UK Citizen holding a British Passport. Respondent No. 2, being the wife of the petitioner and the mother of the said children, has been residing in UK since September, 2007 till 25/12/2015. The Petitioner was born in India and after the marriage, petitioner and respondent No. 2 have gone and stayed in UK since September, 2007; the couple intended to live permanently in UK. Petitioner was granted permanent residency of UK on 12th December, 2013. The Petitioner after relocating in UK in September, 2007, joined the respondent No. 2, who came to UK on a work permit at Wipro from 15/09/2007. The petitioner and respondent No. 2 had visa valid from 13/09/2007 till 13/12/2008. Respondent No. 2 worked for Wipro in UK till November, 2008, whereas the petitioner worked for Giant Group PLC in UK till February, 2011 and changed the company later. Respondent No. 2 had to go back to India to change visa status as the Wipro company in UK did not extend her visa. However, in the meantime the petitioner's status was changed to Tier-I visa, which was valid from 14/05/2008 till 14/05/2011 and thereafter respondent No. 2 joined the petitioner on dependent visa on 04/03/2009. The parties were blessed with a daughter namely Lakshmi Prasad on 19th August 2010 and the minor daughter came to UK as a dependent on 16/01/2011; both the petitioner and Respondent No. 2 stayed in UK along with the minor daughter and the petitioner, in the meantime, became a permanent resident of UK on 12th December, 2013 i.e. got indefinite leave to remain in UK. Similarly, the minor daughter namely Lakshmi Prasad also became a permanent resident of UK On 22/02/2015 i.e. the minor daughter got indefinite leave to remain in UK on that day. The couple were blessed with a minor son Ananth Prasad, who was born in UK On 26/01/2015 and the minor son became a citizen of UK by birth and got British Passport of UK on 24/03/2015.
3. The petitioner and respondent No. 2 along with minor children were habitual residents of UK and have been staying in the UK since September, 2007. Respondent No. 2 started a company namely K2 Consulting Ventures in March 2014 and worked as a Director, whereas the petitioner worked as a Secretary. On 29/12/2015 respondent No. 2 became the Secretary of the Company, whereas the petitioner was made the Director of the Company. In the meantime, the minor daughter Lakshmi Prasad, from September, 2012 till March 2014, was admitted with Cippenham Baptist Play Group, 11, Elmshott Lane Slough SL 15QS. Again from April 2014 till August 2014, the minor daughter was admitted with Asquith Nursery, 1 Eelbrook Avenue, Bradwell Common, Milton Keynes MK 13 8RD. Again from September, 2014 to December, 2015 the minor daughter was admitted in Summerfield School, Downley Avenue, Bradwell Common, Milton Keynes MK 13 8PG. Petitioner, Respondent No. 2 and minor children were staying in UK as a family unit. However, it was decided that the parties along with minor children shall take a trip to India to visit their relatives in December, 2015 and the trip was planned from 24th December 2015 with a return date of 19th January, 2016.
Upon landing in Bengaluru airport on 25 December, 2015, the Petitioner collected their luggage and respondent No. 2 took care of the children. It was around 9.40 p.m., when the petitioner was pushing the luggage trolley containing the luggage, the respondent No. 2 unexpectedly ran to his left taking the children with her. At the same time, the petitioner noticed that respondent No. 2's brother-in-law Shreyas, her sister Lakshmi Shreys, respondent No. 2's mother Padmavathy and her father Srinivas Rangan, who ran in her direction, took the children and ran away with the children. The petitioner tried to follow them but his path was blocked by respondent No. 2's brother-in-law's father Sridhar and four unidentified persons. One of the persons identified himself as a worker in a Police Station and told the petitioner that he was there because a lady had sent an email. In the meantime, respondent No. 2 and her accomplices escaped with the two minor children. Despite the petitioner's attempts, the petitioner could not follow them as his route was being purposely blocked. The petitioner then lost sight of respondent No. 2 and the minor children. The parents of the petitioner, who had come to welcome them, were stranded by the people, who had blocked the path while respondent No. 2 and her accomplices disappeared with the minor children.
4. On 26 December 2015 the petitioner went to the Police Station with his parents. Respondent No. 2 came with her brother-in-law Shreyas, his father Sridhar and her father Srinivas Rangan to lodge a complaint against the petitioner. The petitioner did not know the full details of respondent No. 2's statement, which she made in support of her complaint; however he came to know later that respondent No. 2 and her family were trying to malign the petitioner. The petitioner had retained the passport of respondent No. 2 and the minor children, but, when respondent No. 2 demanded the petitioner to hand over the passports, the Police suggested that the petitioner should hand over respondent No. 2's passport. Petitioner made number of attempts to communicate with respondent No. 2 to discuss her actions but respondent No. 2 switched off her phone.
5. The petitioner was advised to return to England to commence proceedings in the High Court with the hope that an Order would be made for children's return to the home of their habitual residence which is England. So, the petitioner returned to United Kingdom on 13 January, 2016 and made nine attempts to establish contact with respondent No. 2 between 15th and 17th January, 2016. The petitioner managed to establish telephonic contact with respondent No. 2's father and the petitioner told him that the petitioner would like to get in touch with respondent No. 2. Respondent No. 2's father said that in half an hour he would ask respondent No. 2 to ring up to the petitioner, but that never happened. Later the phone was switched off and the petitioner was unable to communicate at all. The petitioner sent an email to respondent No. 2 on 16th January 2016 describing what had happened at the airport and at the Police Station and reminded respondent No. 2 that respondent No. 2 was due to return to the United Kingdom on 19th January 2016 with the children but received a response that respondent No. 2 did not want to have any communication with the petitioner. In spite of various efforts undertaken by the petitioners father, the Respondent No. 2 refused to take back the minor children to the jurisdiction of England and Wales. Since respondent No. 2 refused to bring the minor children back to the jurisdiction of England and Wales, the petitioner was left with no option but to file a petition before the High Court of Justice, Family Division, London on 19th Feb 2016 for obtaining a Wardship order and also sought the relief that the minor children should be brought back to the jurisdiction of England and Wales. The High Court of Justice, Family Division, UK vide order dated 29/2/2016 rioted that the minor children were wrongfully removed from England since December, 2015 and have been wrongfully retained outside the jurisdiction of UK. The UK Court directed that the minor children shall remain as wards of the UK Court during their minority or until further Orders. It was also observed by the UK Court that the Courts at England and Wales have the exclusive jurisdiction in the matter of parental responsibility over the children (being habitual resident of England and Wales) and further directed that respondent No. 2 shall cause the return of the minor children to England and Wales forthwith. The said order dated 29/2/2016 passed by the UK Court has been served personally upon respondent No. 2 and in spite of the service of the said order dated 29/2/2016, respondent No. 2 has not complied with the same and has not caused the return of minor children to the jurisdiction of UK.
6. After passing of the Wardship order by the UK Court and after service of the same on respondent No. 2, the lawyer on behalf of respondent No. 2 sent a notice dated 11.03.2016 addressed to the petitioner on his email acknowledging the factum of the receipt of the Wardship order. In this email, reference was also made to the petition filed by the petitioner under Section 9 seeking restitution of conjugal rights filed in Mysuru, which petition is being withdrawn by the petitioner as the same was filed on the basis of wrong advice in as much as only the UK Court has the jurisdiction to pass orders regarding the marriage and custody of the minor children. Admittedly, the minor children are habitual residents of UK, and the minor son a UK citizen and minor daughter a permanent resident of UK and have been unlawfully retained by the respondent No. 2 in India. Hence, the petitioner filed the present petition seeking the direction as mentioned above.
7. Respondent No. 2 has filed her statement of objections, wherein it is contended that the allegations in paragraph Nos. 1 and 2 of the writ petition are admitted subject to a clarification that, the minor daughter Lakshmi Prasad is not a permanent resident of UK, she only holds an ILR (Indefinite Leave to Remain) card which does not confer on her any status as a permanent resident of UK. The allegation that both the children have been illegally and unlawfully removed by this respondent in UK is a false, fanciful and self serving statement of the petitioner. The petitioner is learnt to have secured a British Passport only on 9 February 2016. The allegation that the respondent No. 2 has been residing in the UK since September 2007 till 25th December 2016 is false and incorrect. Respondent No. 2 has furnished the details of her stay in India, which is at page No. 2 of the objection statement. The allegation that the couple intended to live permanently in UK is absolutely false and untenable. The allegations made in paragraph No. 4 clearly indicates that both the parties neither had a desire nor a possibility of either of them or together settling in UK. The daughter Lakshmi Prasad was born on the 19 August 2010 in India. At that time, respondent No. 2 had stayed in India for a period between November 2009 and 16 January 2011. She holds only an Indian Passport. The allegation that the petitioner and respondent No. 2 along with the minor children were habitual residents of UK and have been staying in UK since September 2007 is false and incorrect.
The allegations at paragraph No. 9 of the petition about respondent No. 2's sister Lakshmi, her husband Shreyas, his father Sridhar are all false. The allegation that the petitioner's path was blocked by anyone or four unidentified people is false. The allegation about an enquiry of the petitioner by a local Police is not known to respondent No. 2. The allegation that the petitioner could not follow respondent No. 2, the children and the parents of respondent No. 2 as his route was blocked is entirely false and untenable. Similar allegation that the path of the petitioner's parents was blocked is also untrue. The details of the event that occurred in the airport are that-the respondent No. 2 had by chance heard from the petitioner's mobile phone, a conversation that he had with his father. In that, the petitioner's father had informed the petitioner that there was an action intended to cause harm to respondent No. 2 and her family as planned. The message had caused anxiety in the mind of respondent No. 2; apart from that, at the airport, the children soon after they saw their maternal grand parents naturally ran towards them and hugged them. Respondent No. 2 felt that it was advisable for her to stay a while with her parents, so, she informed the petitioner and his parents of her desire to follow her parents and that was how the parties separated peacefully from the airport. Respondent No. 2 requested the petitioner to hand over to her, the passports of herself and the children and her luggage. Unfortunately, the petitioner did not oblige, he carried away the entire luggage of respondent No. 2 and has also refused to either deliver the luggage or the passport. Respondent No. 2 was in need of her luggage as it contained all the articles for day to day use. Unwillingly, she had to give a call to the Police. They intervened. The petitioner gave the respondent No. 2 only a part of the luggage and her passport. The allegation in the petition that respondent No. 2 and her family were trying to malign the petitioner is absolutely untrue. The allegation that the petitioner made number of attempts to communicate with respondent No. 2 and the respondent No. 2 had turned off her mobile phone is false and untenable. The petitioner suddenly returned to England to commence proceedings in the High Court there. He has deliberately withheld the most important information before U.K. Court that he voluntarily initiated in Mysuru, India seeking "Restitution of Conjugal Rights". On 05.01.2016, he has filed a petition in M.C. No. 24/2016 on the file of Family Court, Mysuru and has sought a relief of restitution of conjugal rights. The separation between the parties has given a cause of action to initiate that proceeding. The attempt of the petitioner to initiate a proceeding for a Wardship order in England is clearly an afterthought. A phone call to respondent No. 2's father was received and it was not later replied is because of communication that the petitioner got issued through his attorneys holding out a threat of emergency Court proceedings against respondent No. 2. In the said communication, there was a request to respondent No. 2 to return to UK on 19.01.2016 with children. The petitioner was fully aware of the respondent's address. The allegation that the petitioner made various efforts to take back the minor children to the jurisdiction of England and Wales is absolutely false and untenable. The allegation in the petition that the retention of minor children by respondent No. 2 in India shall result in adverse consequences to their overall development and well being is absolutely false and untenable. The allegation that an alien and hostile environment would likely to result in imminent and long lasting mental and psychological harm and trauma to minor children, is an unwarranted and illogical expression of apprehension by the petitioner. On the other hand, the children will be back into the Indian National environment of happy living with encouragement for the development of their natural instincts. So far as the children are concerned it is UK that has received them to a totally hostile and disadvantageous environment. It is not wished that the children will be permanently absorbed in the UK that too into an absolutely inconvenient environment all opposed to the hoary tradition of India and its culture. The petitioners filing a petition for the Wardship order in the Court in UK on 19th February 2016 is not only a long delayed afterthought, but also intended to make that Hon'ble Court to entertain an apprehension that there was anything between parties other than a simple matrimonial dispute. In that situation, he has made the High Court of Justice, Family Division, UK, believe that respondent No. 2 is either absconding or has deliberately removed the children from UK with a motive to leave UK. The petitioner has misrepresented to the Hon'ble Court that he did not know the respondent's whereabouts and he had also misrepresented to the Hon'ble Court that the children were wrongfully retained outside the jurisdiction of UK. Looking into the order passed by the High Court of Justice, Family Division, UK, it is clear that the petitioner has deliberately played fraud on the High Court of Justice, Family Division, UK, by misrepresenting about the whereabouts of the respondent and the normal separation due to matrimonial disputes. The fraud, petitioner played on the Court has resulted in respondent No. 2 to remain absolutely in the dark about the proceedings he had initiated and were taken in the High Court of Justice, Family Division, UK.
The petitioner has deliberately withheld the disclosure of another event by which he put respondent No. 2 in total confusion of the happenings at his end. Suddenly, respondent No. 2 received through post from Mysuru sent by the petitioner a communication, which contained a purported order of the High Court of Justice, Family Division, UK. Respondent No. 2 was surprised by this intimation from the petitioner himself. There was no communication to respondent No. 2 from either Hon'ble Court or any other Authorised person. The order did not bear any case number. It did not bear any seal or signature of either the Court or the Hon'ble Judge. It had not been dispatched from the Court itself. No notice antecedent to the said order had been received by respondent No. 2. To have a doubt cleared on behalf of the respondent No. 2, a letter was addressed to the applicant's solicitors as mentioned in the order. Unfortunately, there was no response from the petitioner or the attorneys answering any of the doubts raised on behalf of respondent No. 2. Suddenly, however, respondent No. 2 received a phone call followed by a communication through e-mail. There was no attempt to explain any of the inaccuracies in the order raised on behalf of respondent No. 2. On the other hand, through an email, a copy of the order was dispatched by the attorneys of the petitioner. The Respondent No. 2 was exposed to the same doubt because the copy now forwarded to respondent No. 2 suddenly referred to a case number and a seal in the last page of the order. The date of the order was 29.02.2016, but the seal on the order was 03.03.2016. Why and how the High Court of Justice, Family Division, UK had dispensed without any communication to respondent No. 2 on its own, or any information authorizing the attorneys of the petitioner to communicate its order remained as doubtful as ever. To have a clarification of the same, letter was addressed to attorneys of the petitioner seeking clarification. The genuineness of the proceedings itself was doubtful. Thus, at all stages, respondent No. 2 has been deprived of necessary knowledge, notice or an opportunity to raise her objections to the proceedings before the High Court of Justice, Family Division, UK. Hence, the order of High Court of Justice, Family Division, UK, relied upon by the petitioner for implementation is void.
8. Petitioner and respondent No. 2 were separated at Bengaluru on 25.12.2015. The petitioner fully realized that this separation, according to him, was the result of a matrimonial violation by respondent No. 2. Very thoughtfully, he initiated a proceeding seeking restitution of conjugal rights. Thus, on his own, showing the dispute between respondent No. 2 and himself was one that was susceptible of being settled by a proceeding in India. Petitioner has filed M.C. Case No. 24/2016 before the Family Court, Mysuru on 05.01.2016 wherein he has sought restoration of conjugal rights and for a direction to respondent to come to the matrimonial home with the children. The implication of the prayer is that the petitioner sought custody/company of the children. The said matter is suppressed before this Court. In M.C. No. 24/2016, petitioner has categorically stated that he is a resident of Mysuru, which is again suppressed before this Court. In this petition he has given his address as England. Only, after about 40 days after filing of the M.C. No. 24/2016, the petitioner had filed a case before the High Court of Family Division, U.K. and obtained an ex-parte order to return the children to England. His attempt to seek such a relief in the Court at UK, while pursuing the pendency of the proceeding in India, is a bar on the jurisdiction of the Court at UK. In the said proceeding in England, he completely suppressed the fact that he filed MC case No. 24/2016, wherein he has virtually sought for the custody/company of the children. Petitioner has also virtually suppressed the case MC No. 24/2016 from this Court, wherein almost similar relief has been sought by the petitioner. While both the Courts have jurisdiction to entertain a grievance by a party, the initiation of a proceeding in one Court estops the applicant to simultaneously invoke the jurisdiction of another Court. The proceeding in the Court at UK. is. therefore without jurisdiction and MC case No. 24/2016 filed by the petitioner bars the filing of this petition also. The petitioner has played fraud not only on the High Court of Justice, Family Division, UK, but also on respondent No. 2. From the facts as pleaded in the objection statement by respondent No. 2, it is clear that petitioner himself did not provide an opportunity for the High Court of Justice, Family Division, UK, to consider the welfare of the children. The petitioner had not invoked the jurisdiction of the High Court of Justice, Family Division, UK, for the relief of any matrimonial dispute of the parties. On the other hand, he gave a conscious, deliberate and fraudulent impression to the High Court of Justice, Family Division, UK, that the issue involved was allegedly abduction of the children. Therefore, the said Court had no occasion to consider the welfare of the children at all.
9. The proceeding initiated by the petitioner in the Family court at Mysuru seeking restitution of conjugal rights was before the most appropriate forum to take up the matter of the welfare of the children also. The petitioners haste of withdrawing petition is an indication of his attempt to deprive respondent No. 2 of an opportunity to raise the question of the welfare of the children. Being convinced that it is only an enquiry into the welfare of the children that would find a solution to the problem between the parties, respondent No. 2 has filed a petition in Family Court, Bengaluru (G & W 85/2016) for appropriate reliefs. Respondent No. 2 has her own financial support to provide for the life and education of two minor children. Respondent No. 2's parents have also come forward to provide financial support to the minor children. They have an independent convenient house, large enough to accommodate respondent No. 2 and her children. They are ready and willing to absorb respondent No. 2 and two minor children into their fold and to provide love, shelter and means of subsistence. The children will also be graced with a companionship of family of mother and grandparents. There are also innumerable number of relatives and well-wishers at Bengaluru to rush to the support of respondent No. 2 at any time of distress or inconvenience. It will be highly advantageous for the coming up of the children in such a family environment. The attitude of the petitioner and the members of his family are entirely different. The petitioner's mother filed a false complaint before the Police at Mysuru charging several offences against respondent No. 2's sister, her husband and his father. They were compelled to obtain an anticipatory bail. The petitioner is all alone in London. It will be extremely impossible for him to personally undertake any job of maintaining the two minor children or provide necessary education. The children will also be deprived of a family association entirely and exclusively in his own company. At UK, the petitioner cannot have any chance of getting the advantage of any family associations or the company of any relatives. The children will have to live totally in exclusion, which is harmful to their welfare.
10. Petitioner and the respondent are Hindus., hailing from highly orthodox family. Respondent No. 2 as well as the petitioner went to England for the purpose of employment and never with an intention to stay there permanently. It was their intention always to work in England for sometime and return to India, which is their mother country. They have no relatives in England. They never got assimilated to the ways of life and social values prevalent in England nor have the children assimilated with the English culture. The children have been brought up in a manner conducive to Indian culture and ethos. The children have been looked after, cared for only by respondent No. 2 and not by the petitioner. The daughter Kumari Lakshmi Prasad is aged nearly six years and in a matter of another two years she will reach puberty during which period she requires care and counseling of the mother alone. The son Master Ananth Prasad is hardly an year old and continues to be suckled by respondent No. 2. He is of an age where the care of the mother is absolutely essential. The English Court is an inconvenient forum for respondent No. 2. If she were to go to England and fight the litigation, she would be all alone and helpless since her family is in Bengaluru and she has no relatives there. Respondent No. 2 has been totally and thoroughly harassed by the petitioner in various ways, physically, mentally and emotionally. There have been instances where the' petitioner has threatened to commit suicide unless the respondent No. 2 agrees to cede majority share in the company, which was actually started by her. He has been harassing respondent No. 2 for dowry. Hence, respondent No. 2 sought to reject the petition filed by the petitioner.
11. We have heard the arguments of the learned counsel appearing for the petitioner-husband and also the learned senior counsel appearing on behalf of respondent No. 2-wife, so also, the learned Government Advocate appearing on behalf of respondent No. 1.
12. Learned counsel appearing for petitioner-husband during the course of his arguments submitted that after their marriage on 7.2.2007, petitioner and respondent No. 2 have gone to U.K. during September 2007 itself with an intention to settle in U.K. permanently. Petitioner was granted permanent residency of U.K. on 12.12.2013; couple are having two minor children, girl child by name Lakshmi Prasad, born on 19.8.2010 and a son by name Anantha Prasad born on 26.1.2015. Daughter Lakshmi Prasad is a permanent resident of U.K. and master Anantha Prasad is a U.K. citizen holding British passport; both the children have been illegally and unlawfully removed by respondent No. 2 from U.K. By the present petition petitioner is seeking repatriation of the children to U.K. in compliance of the order dated 29.2.2016 passed by the High Court of Justice, Family Division, U.K. It is the submission of the learned counsel for the petitioner that from September 2007 till December 2015 petitioner and respondent No. 2 along with their minor children born later on were staying in U.K. as a family unit. Since it was decided by the couple to take a trip to India along with their children to visit their relatives in December 2015, trip was planned from 24.12.2015 with a return journey on. 19.1.2016. It is submitted that petitioner and respondent No. 2 along with the children came to India and reached the Bengaluru Airport on 25.12.2015, petitioner collected their luggage and respondent No. 2 took back the children; around 9.40 p.m. when the petitioner was pushing the luggage trolley, respondent No. 2 unexpectedly ran to his left taking the children with her. At the same time, petitioner noticed that respondent No. 2's brother-in-law Shreyas, her sister Lakshmi Shreyas, respondent Nos. 2's mother Padmavathi and her father Srinivas Rangan ran in her direction and took the children with them and ran away. Though petitioner tried to follow them, but his path was blocked by respondent Nos. 2's brother-in-law's father Sridhar and four unidentified persons. Learned counsel for the petitioner further submitted that though the petitioner tried to contact the respondent No. 2-wife to discuss with her as to why she has done so and with an intention to take his wife and children to U.K., his efforts were in vain as respondent No. 2 failed to contact him over phone. Under these circumstances, petitioner was advised to return to England to commence the proceedings in the High Court of Justice with a hope that an order would be passed for his children's return to their habitual residence, which is England. After returning to U.K., petitioner presented the petition before the High Court of Justice, Family Division, U.K. on 19.2.2016 for obtaining wardship order and also sought the relief that the minor children should be brought back to the jurisdiction of England and Wales. The High Court of Justice, Family Division, U.K. passed the order on 29.2.2016 to the effect that minor children were wrongfully removed from England since December 2015 and have been wrongfully retained outside the jurisdiction of U.K. and the said order passed by the High Court of Justice, Family Division, U.K. though was served on respondent No. 2, she has not respected the Court order and refused to bring the children to the jurisdiction of the U.K. Court. Learned counsel submitted that Master Ananth Prasad was born in England and even daughter Lakshmi Prasad has also become the permanent resident of U.K. The documents produced by the petitioner clearly shows that they are the habitual permanent residents of England and so far as the children are concerned it is the U.K. Court which is having the jurisdiction to pass orders for wardship of the children and not the Courts in India. Learned counsel further made the submission that the daughter of the petitioner and respondent No. 2 was admitted to the schools in U.K. and she was comfortably prosecuting her studies and if the children are not immediately brought back to the jurisdiction of the U.K. Court, then their education career will be affected seriously. It is further submitted that even the petitioner is ready to take back respondent No. 2 if she is willing to come and reside with the petitioner at U.K. Learned counsel submitted that when an order has been passed by the High Court of Justice, Family Division, U.K., the same has to be respected on the principle of Comity of Courts order. In this connection, learned counsel has also relied upon the recent decision of the Hon'ble Supreme Court reported in MANU/SC/0237/2015 : (2015) 5 SCC 450 in the case of SURYA VADANAN Vs. STATE OF TAMIL NADU AND OTHERS and also many other decisions in support of his contention.
It is further submitted that the children have been retained by respondent No. 2 illegally against the order of the High Court of Justice, Family Division, U.K. That in the recent decision reported in MANU/SC/0237/2015 : (2015) 5 SCC 450, all the earlier decisions were considered and ultimately, the Hon'ble Supreme Court has laid down the proposition. Accordingly, he has referred to the relevant paragraph Nos. 12, 17, 19, 31, 34.7, 45.3, 46, 48, 49, 50, 51, 52, 54, 56, 60, 62, 64, 65 and 67 of the said decision. It is submitted that even financially also petitioner is stable and able to provide good future for the education and that respondent No. 2 wife is not capable of managing the children in prosecuting their studies. The children are having more comfortable atmosphere for their studies in U.K. rather than in Bengaluru. In spite of the Court passing the order and giving such direction, respondent No. 2 has failed to bring back the children to the jurisdiction of the U.K. Court. Hence, the petitioner-husband was constrained to present this petition of Habeas Corpus seeking the order and direction as against respondent No. 2 to produce the children before this Court to cause return of the minor children to the jurisdiction of the High Court of Justice, Family division, U.K., so also, to direct respondent No. 2 wife to hand over the requisite documents such as passport and other travel documents of the minor children Lakshmi Prasad and Ananth Prasad, which are in her custody, in order to facilitate the petitioner for return of the minor children to U.K. Accordingly, submitted to allow the petition.
13. Per-contra, learned senior advocate Sri. Udaya Holla appearing for respondent No. 2 during the course of his arguments submitted that the petitioner has made false averments in his petition and the factual story narrated by the petitioner in the petition is far from truth. He has submitted that the allegation that respondent No. 2 illegally and unlawfully removed the children from U.K. is patently false and a baseless allegation. That admittedly, even according to the petitioner, it is his case that petitioner, respondent No. 2 and their children came to India in December 2015 to have a trip. As such, the question of respondent No. 2 illegally and unlawfully removing the children from the jurisdiction of the U.K. Court does not arise at all. Respondent No. 2 suffered both physical and mental harassment at the hands of the petitioner-husband when she was staying with him in U.K. and the children are also having affection towards their grand father and other family members of respondent No. 2 at Bengaluru and they are more attached to the family atmosphere at Bengaluru. They themselves are not ready to go to U.K. Learned senior counsel submitted that the petitioner-husband has filed the petition before the Family Court at Mysuru in M.C. No. 24/2016 under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights and for a direction from the Court that respondent No. 2 should came back to her matrimonial house with children and for such other reliefs, which is produced as per Annexure R6. Perusing the cause title of the said petition, the petitioner-husband himself has furnished the address of respondent No. 2 herein with door number and other particulars. When he was aware of the address of respondent No. 2-wife he could have very well mentioned in his petition before the Hon'ble High Court of Justice, Family Division at U.K. Looking to the order passed by the said Court at U.K., it clearly shows that petitioner has mentioned in the petition that address and whereabouts of respondent-wife are not known to him and it is because of this reason the U.K. Court has passed an ex-parte order stating that as the address of respondent-wife is not known to the petitioner, question of issuing notice of the petition will not arise and as such, Court is passing ex-parte interim order as against the respondent. Hence, it is submitted that petitioner-husband has committed a fraud on the Court to obtain such order. When such a fraud has been committed while obtaining the orders at the hands of the Court at U.K., it is no order at all and it is nullity in the eye of law. This itself shows the clandestine design of the petitioner-husband to obtain such orders before the U.K. Court. Petitioner-husband has not approached this Court with clean hands. The remedies under the writ jurisdiction are discretionary and the person who is approaching the Court must come with clean hands so far as the factual aspect of the case is concerned. He has further submitted that even regarding filing of the petition before the Mysuru Court was not at all mentioned before the Court at U.K. and even in this writ petition he has not furnished full details of said petition and the reliefs claimed therein and only in one sentence he has mentioned that petition filed before the Family Court at Mysuru came to be withdrawn by the petitioner. Hence, the learned senior counsel submitted that when a person is making such false averments in the petition, his contention that he will look after the children and will help for their education and that even he is ready to take his wife-respondent No. 2 to U.K., cannot be accepted at all. That both the children of petitioner and respondent No. 2 are minor and Anantha Prasad is hardly aged one year and three months and is a milk sucking child, presently in the custody of the mother. Even the daughter Lakshmi Prasad is nearing to puberty and it is more convenient and advisable that daughter Lakshmi Prasad should be in the care and custody of her mother-respondent No. 2. It is further submitted by the learned senior counsel that the contention. of the other side that the husband and wife went to U.K. with an intention to permanently settle in U.K. is not correct. He drew our attention to the, statement of objections filed wherein at paragraph No. 1 of the said objection statement he has furnished the table to show the period and duration of stay of respondent No. 2 in India. He has further submitted that the elder child Lakshmi Prasad is prosecuting her studies in India and the children are more familiar and accustomed to the lifestyle and culture of the family in India, which is more comfortable and favourable to the children to prosecute their studies. It is submitted that welfare of children is the paramount consideration while passing the orders by the Courts of law, under these circumstances, if respondent No. 2 is ordered to take back her children to England and to fight the litigation before the U.K. Court, it becomes very difficult for her. She being a lady, should alone has to fight out the matter in U.K. without support of anybody. It is further submitted that even respondent No. 2 has filed the petition before the Family Court at Bengaluru-in G & WC No. 85/16 under Sections 7-8 of the Guardians and Wards Act 1890 seeking relief of declaration that petitioner-respondent No. 2 herein is suitable and competent to be appointed as the guardian of the children Lakshmi Prasad and Ananth Prasad for the welfare of the children and in their best interest and the Court be pleased to direct appointment of the petitioner-respondent No. 2 herein as the guardian of the children. She has also sought for decree of permanent injunction to restrain the respondent therein, his agents, associates or anyone on their behalf attempting to separate the children from the custody of the petitioner by any means. Learned senior counsel submitted that the said petition is still pending consideration. Hence, he submitted that in view of these factual aspects which are true and correct, the decisions relied upon by the learned counsel appearing for the petitioner-husband will not apply to the case on hand and hence submitted to dismiss the writ petition holding that petitioner is not entitled to any relief in the petition. In support of his contention, learned senior counsel for respondent No. 2 has also relied upon several decisions.
14. We have also heard the learned Government Advocate representing respondent No. 1. He has submitted that as per the order passed by the U.K. Court the children will have to be sent back to the jurisdiction of the U.K. Court.
15. We have perused the pleadings of both sides, documents produced in support of their contentions, decisions relied upon by both sides and the principles enunciated in the said decisions.
16. The marriage of petitioner and respondent No. 2 herein was performed in the year 2007. The couple are having two children, elder one is the daughter Lakshmi Prasad, who was born in India in the year 2010 and the younger one is the son Master Ananth Prasad aged one year three months, born in U.K. in the year 2016 when the couple were staying at U.K. The pleadings of the parties show that both husband and wife are gainfully employed in U.K. Though it is the contention of the petitioner that they are the habitual residents of U.K., but same has been denied by respondent No. 2-wife and she has contended in her objection statement that they went to U.K. to do the job for some time and thereafter they wanted to come back to India. It is also her contention that they never intended to stay permanently in U.K. It is the contention of the petitioner that he acquired citizenship of U.K. in November 2015, which is also denied by respondent No. 2. The main allegation of the petitioner as against respondent No. 2 is that she has illegally and unlawfully removed the children from the jurisdiction of the U.K. Court and is having illegal and unlawful custody of the minor children. But this allegation made by the petitioner is not correct, because in the petition at paragraph No. 8 he has contended that it was decided that the parties along with the minor children shall take a trip to India to visit their relatives in December 2015 and trip was planned from 24.12.2015 with a return journey on 19.1.2016. It is further pleaded that the said visit was also to celebrate the minor son Ananth Prasad's first birthday and to visit their relatives. Considering this pleading it cannot be said that respondent No. 2 removed the children illegally and unlawfully from the jurisdiction of U.K. Court. Looking to the pleadings of both sides, it shows that difference arose between the parties and all was not well between the couple when they reached Bengaluru Airport on 25.12.2015. According to the petitioner, it is respondent No. 2 and her relatives who blocked his way and respondent No. 2 taking undue advantage of the same, took the children with her and went towards her parents and though petitioner made attempt to see her, he could not do so since his way was blocked and he was not able to see his wife and children. But as per the contention of respondent No. 2 in her objection statement, immediately after they reached Bengaluru Airport, petitioner started to converse with his father in order to cause harm to respondent No. 2 and to her family members, she went towards her parents and since the minor children immediately after coming to Bengaluru Airport, due to their attachment with the grand parents ran towards them. It was not with an intention to block the way of the petitioner as he has alleged. However, the pleadings of both sides show that some difference of opinion and dispute arose between the couple when they reached Bengaluru Airport. The material also goes to show that one unknown person who was also present at the Airport told the petitioner that his wife gave petition by way of e-mail making allegations and asked the petitioner to come to the police station on the next day. Though petitioner has not disclosed in his petition that thereafter he filed petition in M.C. No. 24/2016 before the Family Court at Mysuru against respondent No. 2-wife under Section 9 of the Hindu Marriage Act for restitution of conjugal rights so also, seeking custody of the minor children, respondent No. 2 in her objection statement made it clear that such a petition was filed by the petitioner before the Family Court at Mysuru and even she has produced the copy of the petition filed on 5.1.2016 along with her objection statement. This clearly shows that there was a matrimonial difference between the couple, as such, petitioner filed said petition before the Court at Mysuru.
17. The important aspect to be considered by us is, in the M.C. No. 24/2016 filed before the Court at Mysuru, petitioner herein has furnished the correct address of the respondent No. 2-wife. Even the door number, cross, block everything is mentioned in the cause title while furnishing the address of respondent No. 2-wife. Even according to the contention of the petitioner, as his wife did not respond to his phone calls and did not bring the children to him, he went back to U.K. on 13.1.2016 and he filed a petition before the High Court of Justice, Family Division, U.K. and the said Court has passed the order on 29.2.2016. Petitioner has produced copy of the statement of the applicant (in the form of petition) filed before the U.K. Court as per Annexure 'E' and also the order passed by the U.K. Court as per Annexure 'F'. We have perused the order passed by the U.K. Court. Under the caption "recitals", it is mentioned as under:
"2. This Order was made at a hearing without notice to the respondent. The reason why the Order was made without notice to the respondent is because the applicant does not know of the respondent's whereabouts."
(emphasis supplied)
At paragraph No. 5 of the said order it is mentioned as under:
"5. The Court was satisfied on a provisional basis on the basis of the evidence filed that;
a. The children were on 25 December 2015 and remained on 23rd February 2016 habitually resident in the jurisdiction of England and Wales;
b. The children were wrongfully retained outside the jurisdiction of England on 25th December 2015.
c. The Courts of England and Wales have exclusive jurisdiction in matters of parental responsibility over the child pursuant to Articles 8 and 10 of BIIR"
18. Looking to the contents of the petition presented by the petitioner himself it is seen that they have left England along with their minor children to take trip to India on 24.12.2015 with a return date of 19.1.2016. But in the statement filed in the form of application before the U.K. Court he made the allegation that the children were abducted and they were illegally and unlawfully removed from the jurisdiction of the U.K. Court by respondent No. 2. Though the case before the High Court of Justice, Family Division at U.K. was subsequent to filing of M.C. No. 24/2016, the petitioner has not at all mentioned about the said fact in his statement before the U.K. Court. He has suppressed the material fact with an intention to obtain ex-parte order at the hands of U.K. Court. Not only that, in the petition before the U.K. Court, (at paragraph No. 11) he has also pleaded "the Court to make a Third Party Disclosure Order as he thoroughly believe that Jyothi Sunil, who is a friend of his wife and neighbour is aware of his wife's and children's whereabouts."' This statement at paragraph No. 11 is also patently false in view of furnishing the detailed address of respondent No. 2 in M.C. No. 24/2016 before the Family Court at Mysuru. Looking to the tenor of the order passed by the Court at U.K. it is clear that, had the petitioner furnished the correct address of respondent No. 2, the Hon'ble Court at U.K. would have definitely issued notice to the respondent No. 2-wife before passing such order, in as much as it is clear from the order of the U.K. Court that the order was made without notice to the respondent-wife because the applicant allegedly did not know the respondent's whereabouts. After obtaining the order from the Hon'ble Court at U.K., it is the petitioner, who served that order on the respondent-wife. So when he was not knowing the whereabouts or the address of respondent No. 2, it is strange as to how he could serve the order on respondent No. 2. The same is also an important aspect to be taken into consideration while appreciating the contention of the petitioner.
19. The materials clearly show that the petitioner was definitely knowing the address of the respondent-wife and in spite of that he furnished the wrong particulars to the U.K. Court and suppressed the truth, thereby he has committed fraud on the Hon'ble Court at U.K. When a person has committed fraud on the Court, the question as to whether such a person is entitled to the relief in the form of writ of habeas corpus to be considered. The remedy under the writ jurisdiction is a discretionary remedy and the person approaching the Court must show his bonafides in filing such petition and he must also establish that he has approached the Court with clean hands, as otherwise, such persons are not entitled to the discretionary relief as claimed in the habeas corpus petition. The person committing fraud cannot be permitted to take the advantage of his own fraud. Even as per Section 13(e) of the Code of Civil Procedure, 1908, the order obtained by the petitioner from the Hon'ble Court at U.K. under the aforesaid circumstances is not conclusive. Section 13(e) of CPC reads as under:-
"13. When foreign judgment not conclusive-A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-
(a)...........
(b)...............
(c)............
(d)..........
(e) where it has been obtained by fraud;"
Even according to the provisions of CPC, the petitioner is not permitted to take advantage of the order that he has obtained from the Hon'ble Court at U.K. by committing fraud on the said Court. When a person is not fair and honest in submitting true facts before the Court while getting relief at the hands of the Courts of law, then his further averments in the petition that he is even ready to take back his wife-respondent No. 2 herein along with children to U.K. cannot be accepted. For administering justice by the Courts in a given case, the pleading submitted by the parties is the foundation. When a party is not fair enough to submit the true facts and on the contrary is suppressing material facts before the Court, we are of the opinion that the petitioner is not entitled to seek the discretionary relief in the present petition.
20. The material placed on record shows that the daughter Lakshmi Prasad is aged about 6 years and as contended by respondent No. 2-wife in her objection statement, within a period of 2-3 years she is going to attain puberty and hence, it is necessary that she shall have to be in the custody of her mother. Further, the son Ananth Prasad is just aged one year and three months and he is a milk sucking child and as such, mother is the guardian to both the children. It is also the contention of respondent No. 2-wife that she has to take care of her children and if she is compelled to go to U.K. along with her children to fight out the matter in the Court at U.K. as contended by the petitioner, then it will be very difficult for her since she is not having any relative in England.
21. Perusal of the petition copy filed in M.C. No. 24/2016 before the Family Court at Mysuru shows that the petitioner herein has even sought the relief of custody of minor children also. It is he who has chosen and submitted to the jurisdiction Court in India by filing such petition. When such petition was pending before the Court in India (Mysuru in Karnataka state), he should not have filed the case before the U.K. Court for custody of the children. The petitioner is not even ready to mention about filing of such petition before the Mysuru Family Court, in this habeas corpus petition also. Only while referring to the reply sent by respondent No. 2-wife to the petitioner in respect of the order passed by the Hon'ble Court at U.K. he made a passing reference in this writ petition about he filing such petition before the Family Court at Mysuru. He has withdrawn the M.C. petition filed before the Mysuru Court only after the respondent No. 2 entered appearance before the said Court by filing her vakalath. The material also goes to show that respondent No. 2 has filed the petition before the Family Court at Bengaluru in G & WC No. 85/2016 under Sections 7 and 8 of the Guardians and Wards Act, 1890 seeking declaration that she is suitable and competent to be appointed as the guardian of the minor children. Said petition is also pending consideration before the Court. So far as the custody of the minor children are concerned, the welfare of the minor children is the paramount consideration to be kept in mind by the Courts of law before passing orders. The Indian Court before which the petition is already filed and pending consideration has to take decision in the matter regarding custody of the minor children, under the facts and circumstances of this case.
22. The decisions relied upon by the learned counsel for the petitioner and the principles enunciated in the said decisions cannot be disputed. But the question is whether said decisions are applicable to the case on hand when the petitioner has obtained the order from the Hon'ble Court at U.K. by committing fraud on the said Court. As we have made detailed discussion with reference to the said aspect, we are of the opinion that the said decisions relied upon by the learned counsel for the petitioner will not come to the aid and assistance of the petitioner's case in view of the facts and circumstances involved in the present case and the circumstances under which the petitioner has obtained such order at the hands of the Hon'ble Court at U.K. Apart from that, considering the fact that the minor children are of the age group 6 years and about one year respectively and as they continue with the custody of the mother, respondent No. 2 cannot be compelled to hand over the custody of the minor children to the petitioner particularly when the case in G & WC No. 85/2016 on the file of Family Court at Bengaluru is also pending for consideration.
23. As has been held by the Apex Court in the case of SURYA VADANAN. vs. STATE OF TAMIL NADU AND OTHERS {MANU/SC/0237/2015 : (2015) 5 SCC 450}, the interlocutory order for making child ward of Court passed by foreign Court of competent jurisdiction first in point of time deserves due weight and respect. The parent of the ward should not violate such interlocutory order and any violation of such order should be viewed strictly by the Court inasmuch as that would be destructive of rule of law and principle of comity of Courts. Other judgments relied upon by the petitioner also lay down the very principle. However, sometimes exception can be made based on certain circumstances, as observed in the very judgments. Thus in the normal circumstances, the Respondent No. 2 being the mother of the children against whom an interlocutory order is passed by the UK Court for making the children Wards of the Court, should obey such order. Since the same is first in point of time, such order should not be allowed to be violated by Respondent No. 2. However the circumstances in the present case are different to certain extent from the facts in the case of Surya Vadanan cited supra. We have already clarified in the aforementioned paragraphs that the petitioner herein suppressed the material facts before the UK Court and obtained the interim order, on which he has relied upon before this Court. Though the petitioner very well knew the correct address where Respondent No. 2 is residing at Bengaluru in Karnataka State, he has suppressed the said fact before the UK Court by mentioning in the petition filed before the UK Court that he does not know the whereabouts and the correct address of Respondent No. 2 and as to where the children are kept by Respondent No. 2. At the time of filing petition before the UK Court, petitioner very well knew that Respondent No. 2 was residing at No. 113, 2nd Cross, ST Bed Layout, 4th Block, Koramangala, Bengaluru-560 034. The very address is given by the petitioner in M.C. No. 24/2016 filed by him before the Family Court at Mysuru claiming the restitution of conjugal rights as well as custody of the children. Respondent No. 2 was served with notice in the very address at Bengaluru. It is relevant to note that M.C. No. 24/2016 was filed by the petitioner before the Family Court at Mysuru on 5.1.2016. On service of notice, Respondent No. 2 appeared before the Family Court in the said petition through an advocate. The said petition filed at Mysuru came to be withdrawn by the petitioner on 15.3.2016, which means the petition filed at Mysuru was pending consideration from 5.1.2016 to 15.3.2016. It is further relevant to note that the petitioner had shown his residential address as Flat No. 30, Brandavan Apartment, Yadavgiri, Mysuru-57020 in M.C. No. 24/2016. The aforementioned facts would clearly reveal that the petitioner is permanent resident of Mysuru and Respondent No. 2 is permanent resident of Bengaluru even on 5.1.2016 and they continued in the very address till 15.3.2016.
24. As mentioned supra, during the subsistence of M.C. No. 24/2016 in the Family Court at Mysuru, the petitioner approached UK Court on 19.2.2016 seeking the custody of the children. The Court at UK passed an interim order on 29.2.2016 in favour of the petitioner. We have already clarified that while filing petition before the UK Court on 19.2.2016 and even at the time of passing the order by the UK Court on 29.2.2016, the petitioner represented before the UK Court that he is the resident of United Kingdom and that he does not know the whereabouts of his wife (Respondent No. 2) and two children. As he very well know the correct address of Respondent No. 2, it is not open for the petitioner to suppress and play fraud on UK Court for obtaining an interim order dated 29.2.2016, based on which the present petition is filed.
25. There cannot be any dispute that fraud vitiates everything. The petitioner's action of playing fraud on UK Court will have to be viewed seriously. The wrong doer cannot take advantage of his own fault. Since the petitioner has played fraud and obtained the interim order dated 29.2.2016 from the UK Court, he shall not be allowed to take advantage of the said order. The petitioner being an educated person, ought to have stated correct and true facts before the UK Court. In view of the aforementioned special reasons, we are of the clear opinion that the petitioner is not entitled for the relief as sought for in this writ petition.
26. Moreover as held by the Apex Court in the case of SURYA VADANAN cited supra, if foreign Court has most intimate contact and closest concern with child and parents, because of their long residence and acquisition of citizenship of that country etc., that Court would be most suitable for determining best interests and welfare of child, rather than domestic Court if it lacks such contact and concern. In the matter on hand, as mentioned supra, the petitioner himself has declared that he is a permanent resident of Mysuru and that Respondent No. 2 is permanent resident of Bengaluru in M.C. No. 24/2016 filed before the Family Court at Mysuru. It is also mentioned in M.C. No. 24/2016 that two children are residing with Respondent No. 2 at Bengaluru. If it is so, it cannot be said that foreign Court has most intimate contact and closest concern with children and parents. On the other hand, the petitioner has himself declared that it is the Court at Mysuru or Bengaluru which has got most intimate contact and closest concern with children and parents and that therefore the Court at Mysuru or Bengaluru has got jurisdiction to try the matter.
27. In view of the above, we do not find any reason to grant relief in favour of the petitioner as prayed in the writ petition.
Accordingly, petition fails and the same stands dismissed.
© Manupatra Information Solutions Pvt. Ltd.