Habeas corpus - case laws required
Querist :
Anonymous
(Querist) 23 December 2011
This query is : Resolved
Dear Experts,
Request you please help me in providing relevant case laws
Mr. Ashish & Ms. Subadha ( both Hindu ) got married by Hindu Rites & ceremonies in Delhi 2002.
After marriage moved to London in 2002 where Mr. Ashish was working.
Got Son in 2004 Named Master. Veer Master Veer got British Citizenship in 2004 due to birth.
In 2007 both Mr. Ashish & Mrs. Subadha got British Citizenship.
In 2008 due to strained relations between them filed petition for divorce in British Court & eventually got Divorce with Condition to have joint custody of the Child. And either parthy should not leave Country without informing other party.
In 2009 Ms. Subhada returned to India alongwith son Master Veer to visit Delhi with permission of Mr. Ashish.
But after reaching India ignored Mr. Ashish call as well as refused to Talk Mr. Ashish withson Veer.
In meantime she got job in Delhi & enrolled Master Veer to good reputed school.
Aggrieved by this Mr. Ashish filed writ of Habeas Corpus in British Court & got order in his favour.
But Ms. Subadha refused to accept British Court Order so Mr. Ashish File Habeas Corpus in Delhi HC for custody of Master Veer but same get rejected too.
So he appealed in SC for the Custody of Child.
Request all the expert to Support Mr. Ashish for his petition alongwith relevant case laws.
Appreciating your special knack in advance about the Subject matter.
Shonee Kapoor
(Expert) 23 December 2011
There are many case law on inter-parental child kidnapping, it is even a crime in certain countries.
Do your own research, and don't rely on readymade material.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
prabhakar singh
(Expert) 24 December 2011
Inter-Parental Child Removal across international borders is not defined in any Indian legislation and is not specified as an offence under any statutory law. The problem is compounded by the fact that India is not a signatory to the Hague Convention on Civil Aspects of International Child Abduction 1980, which is signed by 80 countries worldwide. Hence, inter-parental child custody conflicts are invariably decided by Indian courts supposedly on the principle of the welfare of the abducted child as being the paramount consideration, and can take an average of 8 years by which time the child attains majority during his/her illegal detention in India. The abducted child is generally a foreign citizen by birth and the abductor could be an Indian citizen or a foreign citizen, and there may be pre-existing custody orders from competent courts in the child’s country of habitual residence. The prerogative writ of Habeas Corpus as a expedient remedy is thus consistently invoked being the most effective, emergent and efficacious one to a distressed parent whose child has been removed to India from foreign borders or vice-versa. The foreign court custody order forms the basis of invoking this extra-ordinary constitutional remedy. A case law analysis reveals that till 1997, Indian courts perpetually exercised a power of summary return of a removed child to the country of habitual residence in Compliance with a foreign court order to restore parental rights of an aggrieved parent.
However, from 1998 onwards, the Supreme Court has held that a custody order of a foreign court shall be only one consideration while determining the matter on merits where the welfare of the child principle will be the clinching factor. Resultantly, whenever any Habeas Corpus petition seeks summary return of an abducted child to a foreign country, the court invariably opines that it needs further determination by requiring evidence to be led by warring spouses, and the parties are relegated to conventional court custody proceedings. Because of the huge backlog of cases in the Indian courts, a protracted, time consuming, expensive and tedious custody petition results, and the unfortunate removed child is fought over as a trophy to be won in a battle of egos of one or both litigating parents.So this the legal position in which you have to press your case.
Querist :
Anonymous
(Querist) 24 December 2011
Dear Mr. Prabhakar Singh Saab,
Thanks a lot I will work on the same.
prabhakar singh
(Expert) 24 December 2011
Date Topics Case Titles Citation
April 20/2010 'Guardian and Wards Act - Custody of Child' Vishnu Vs. Jaya
Special Leave Petition (C) No. 8525 of 2010
Both the children were very clear and firm that they want to live with their father and they do not want to go with their mother. The elder son was not even able to recall the name of the mother. In the aforesaid facts and circumstances, we are of the view that if the children are forcibly taken away from their father and handed over to the mother, it will only traumatize them and it will not do any good to anybody. In the present situation, the better course would be that the mother should first be allowed to make the initial contact with the children, build up her relationship with them and slowly and gradually restore her position as their mother ..... During the three long vacations, namely the summer vacation, Diwali vacation and Christmas vacation the two children will spend half their vacations with the respondent mother at her house, in Bhopal or wherever she might be living. Before taking away the children she will duly notify the petitioner about her whereabouts and her residential address.
prabhakar singh
(Expert) 24 December 2011
Date Topics Case Titles Citation
May 13/2011 'Guardians and Wards Act – Territorial Jurisdiction - Custody of Child' Ruchi Majoo Vs. Sanjeev Majoo
Civil Appeal No. 4435 of 2011 (Arising out of SLP (C) No.9220 of 2010) With Criminal Appeal No. 1184 of 2011 (Arising out of SLP (Crl.) No.10362 of 2010)
where legal proceedings have engaged the parties in a bitter battle for the custody of their only child Kush, aged about 11 years born in America hence a citizen of that country by birth. ….. the High Court allowed that petition, set aside the order passed by the District Court and dismissed the custody case filed by the mother primarily on the ground that the Court at Delhi had no jurisdiction to entertain the same as the minor was not ordinarily residing at Delhi - a condition precedent for the Delhi Court to exercise jurisdiction. ….. order dated 8th March, 2010 passed by the High Court hereby set aside. Consequently, proceedings in G.P. No.361/2001 filed by the appellant shall go on and be disposed of on the merits as expeditiously as possible. ….. The observations made in this order shall not prejudice the cases of the parties before the trial Court and shall be understood to have been made only for purposes of this appeal except in so far as the question of jurisdiction of the trial Court is concerned which aspect shall be taken to have been finally decided by this Court. 2011 STPL(Web) 505 SC
prabhakar singh
(Expert) 24 December 2011
Date Topics Case Titles Citation
April 06/2010 'Custody of Child' Mohan Kumar Rayana Vs. Komal Mohan Rayana
SLP (Civil) No. 9821-9822 of 2009
Having the interest of the minor in mind, we decided to meet her separately in order to make an assessment of her behavioural pattern towards both the petitioner as well as the respondent. Much against the submissions which have been made during the course of hearing of the matter, Anisha appeared to have no inhibitions in meeting the petitioner- father with whom she appeared to have an excellent understanding. There was no evidence of Anisha being hostile to her father when they met each other in our presence. From the various questions which we put to Anisha, who, in our view, is an extremely intelligent and precocious child, she wanted to enjoy the love and affection both of her father as well as her mother and even in our presence expressed the desire that what she wanted most was that they should come together again. However, Anisha seems to prefer her mother's company as the bonding between them is greater than the bonding with her father 2010 STPL(Web) 554 SC
prabhakar singh
(Expert) 24 December 2011
Gaurav Nagpal vs.
Sumedha Nagpal [(2009) 1 SCC 42], wherein this Court, inter alia, held that the paramount
consideration of the Court in determining the question as to who should be given the custody of a
minor child, is the "welfare of the child" and not rights of the parents under the statute for the
time being in force or what the parties say
Devajyoti Barman
(Expert) 29 December 2011
Even in this month the supreme court has given another decision on child custody as per their wish.
