Facts of the Case
The Petitioner (Father cum Husband) filed a petition under Article 226 of the Constitution of India seeking a Writ in the nature of habeas corpus directing the Respondent (Mother cum Wife) to produce his minor child and handover the custody of the said minor to him. The Petitioner is the natural father and guardian of the minor child, and that his wife and he are both medical practitioners having married in 2002. In 2006, a daughter was born at Gandhinagar and, thereafter, the family moved to Australia in February 2007. In 2011, the Son (The corpus) was born in Australia. In 2018, the Mother visited India along with both children and were scheduled to return to Australia in 2019 to recommence their schooling, when the Petitioner contacted the Mother, she refused to return to Australia with the children and informed the petitioner that she would remain in Gandhinagar and at that time, the petitioner has asked his wife (Mother) to return the children, but she refused to do so. Thereafter, he came to India and tried to talk with his wife, but she refused to speak with him and they did not allow to meet with the children. The Petitioner contended that he approached the Federal Circuit Court of Australia under the Family Law Act, 1975 in 2019 seeking “sole parental responsibility” for the children, that he was able to secure his Daughter’s return to Australia by negotiation with his wife, however, she refused to return the Corpus (Son) to the petitioner. It is further contended by the petitioner that the corpus wishes to join him. On the aforesaid ground, the petitioner preferred the petition.
Arguments before the Court
The petition was resisted by Respondent (Wife cum Mother) denying all the facts of the petition stating mainly, that she is a natural guardian and biological mother of the corpus and has also stated that the custody of the minor child is with his own mother does not amount to illegal custody or illegal confinement and, therefore, the present petition is not maintainable. Further, it was stated that to allow the minor child with the mother is always desirable in the larger welfare of the child himself. To add on she contended that in the said facts of the case, there is a high risk of the child being abused by the father and domestic violence upon the child more particularly in Australia. On the contrary, the Petitioner (Husband cum Father) denied all the allegations. However, in the course of replying the Wife, has willingly assured that the family may reunite in the month of April 2020 for purpose of Education of Children and to not jeopardize her career as Medical Practitioner being on numerous leaves.
Decision of the Court
The High Court finally observed that the Son, until he went on the holiday, had no real first-hand experience of India and very limited exposure to any of the Indian languages. The Respondent had removed the child from his Australian school education and enrolled him unilaterally in the Indian education system, and has now, by reason of his sister’s return to Australia, this severs the important sibling relationship and also the father-son relationship. On balance it is in the son’s best interest, that he should live with his father and that there should then be consequential orders requiring the mother, as soon as possible, to return him to the Commonwealth of Australia. That “foreign court is as capable of making a prima facie fair adjudication as any domestic court and there is no reason to undermine its competence or capability.”[googlepdf url=”https://libertatem.in/wp-content/uploads/2020/01/Gujarat-HC-upholds-the-Capability-and-Competency-of-Foreign-Courts.-Says-they-are-capable-of-fair-adjudication-as-any-domestic-court-as-Ordered-in-Habeas-Corpus-Ca.pdf” download=”Download Judgement PDF” width=”100%” height=”900″]
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