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CASE NO.: Writ Petition (crl.)  58 of 2003

PETITIONER: Saihba Ali                                                       

RESPONDENT: Vs. State of Maharashtra & Ors.                              

DATE OF JUDGMENT: 24/07/2003

BENCH: N.Santosh Hegde & B.P.Singh.  

JUDGMENT:

                               O R D E R

       In 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 above petition.

       Respondent 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.  We 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 .          Learned 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

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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.  He 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.

       We are 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 their mother.  However, 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.

       Having 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 15.9.1998.  Among 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 :

       This 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 :

       The petitioner herein â\200\223 Saihba Ali â\200\223 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.

       On 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.

       At present, the children are taking tuitions between 8 and

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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.

       The 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.  We are 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.

       Any deliberate or willful disobedience of the letter and  spirit of this order would entail this order being revoked even  by the Family Court.

       As 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.

       Any 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.  Parties are at liberty to make such application as they  think appropriate before the Family Court.  The writ petition is disposed of in the above terms.