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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO. 398 OF 2017
Dr.Dhiraj Ramshankarji Gupta,
aged about 38 years, Occ. Medical
Practitioner,R/o. 150-A, Wardhman Nagar,
Nagpur ...... PETITIONER
...VERSUS...
1. State of Maharashtra,
through the Commissioner of Police,
Nagpur City, Civil Lines, Nagpur.
2. Dr. (Smt.) Radhika w/o Dr.Dhiraj
Gupta (also known as Reshma
Tarannuum Mohammad Nasar Inamdar),
aged about 38 years, Occ. Medical
Practitioner, R/o. C/o. Smt. Kamal
Inamdar, 504, Nirman Enclave, Gajanan
Nagar, Nagpur.
AND ALSO AT
C/o. Shri Ambar Inamdar @ Salim
Inamdar, Advocate, H-20, Lajpat Nagar,
III Block-H, Delhi-110024
AND ALSO AT
C/O. Shri Ambar Inamdar @ Salim
Inamdar, Advocate, F-15.27, Sector 15,
Rohini, New Delhi.
AND ALSO AT
C/o. Shri Salim Amber Inamdar,
Advocate, 6, UGF, Kanchanjunga
Building, 18, Barakhamba Road,
New Delhi-110001 ...... RESPONDENTS
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Shri M.G.Bhangde, Senior Advocate, assisted by Shri S.B.Mohta,
Advocate for Petitioner
Shri Anand Jaiswal, Senior Advocate, assisted by Shri A.A.Naik,
Advocate for Respondent no. 2
Shri V.P.Gangane, APP for Respondent Nos.1 and 3
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CORAM: R. K. DESHPANDE AND
M.G.GIRATKAR, JJ.
RESERVED ON : 2 nd NOVEMBER, 2017 .
th
PRONOUNCED ON : 9 NOVEMBER, 2017 .
JUDGMENT (Per R.K.Deshpande, J.)
1] This petition is filed to seek a writ of Habeas Corpus directing the respondents to produce minor child Master Raajveer and to hand him over to the petitioner. The petition also claims relief of restraining the respondent No.2 as well as respondent Nos. 1 and 3 from allowing or taking Master Raajveer along with her to the United Kingdom or any other country and to further restrain the respondents from moving Master Raajveer out of India without the consent and concurrence of the petitioner and without following the due process of law.
2] It is the case of the petitioner that the minor child aged about 7 years, born out of the wedlock of the petitioner and the respondent No.2 Dr. (Smt.) Radhika Gupta was in the custody of the petitioner since October, 2016, pursuant to the conscious and consensus decision of the petitioner and the respondent No.2 to relocate them in India from London in United Kingdom and was admitted in one of the best schools, ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:58:53 ::: 3 cri wp398.17.odt run by Bhartiya Vidya Bhawan at Shrikrushna Nagar at Nagpur. The final examination of the first standard of the minor child was going on from 06.04.2017 and it was to come to an end on 12.04.2017. The complaint in the petition is that respondent No.2, mother of the minor child and the wife of the petitioner, without the knowledge and consent of the petitioner picked up the minor child from the School on 11.04.2017 itself and took him to a different place without intimating the petitioner his whereabouts. The petitioner could know the plan of the respondent No.2 to take the minor child with her at London in United Kingdom and therefore, the petitioner was constrained to approach this Court by way of this petition.
3] On 26.04.2017, this Court passed an order as under;
"Heard.
Notice, returnable on 07.06.2017. The learned Additional Public Prosecutor waives notice for respondent Nos. 1 and 3.
R.P.A.D./Hamdast service for respondent No.2. Additionally, service through e-mail on respondent No.2 also permitted."
Thereafter on 12.05.2017, this Court passed an order as under;
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4 cri wp398.17.odt "The respondent No.2 is not yet served. However, taking into consideration the apprehension expressed by the petitioner that the respondent No.2 may leave India along with minor child Rajveer, by way of ad interim order, the respondent No.2 is hereby injuncted from taking minor child Rajveer out of India without leave of this Court.
Criminal Application No. 93/2017 For the reasons stated in the application, it is allowed. The application stands disposed of accordingly". On 07.06.2017, the respondent No. 2, wife of the petitioner, put her appearance through her counsel in this Court. It is informed that the minor child was produced before this Court (Bench of M/s. P.B.Varale and M.G.Giratkar, JJ.). He was interviewed personally in chamber and also there was talk with the petitioner and the respondent No.2. The matter could not be sorted out. The minor child Master Raajveer preferred to stay with his mother.
4] The respondent No.2 has filed her detailed reply to oppose the claim of the petitioner and she has expressed in clear terms through her counsel, the Senior Advocate Shri Anand Jaiswal, who informed us that respondent No.2 does not want to stay in India and she would be taking away the minor child to London in United Kingdom for prosecuting his ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:58:53 ::: 5 cri wp398.17.odt further studies. Shri Jaiswal submits that the respondent No.2 has her job as Psychiatrist in the Hospital at London. However, he has admitted that though the respondent No.2 presently has a problem of accommodation in London, the same can be sorted out. He further submits that the respondent No.2 had made all the arrangements for further education of a minor child in the best school at London. 5] The factual background in which the controversy has arisen is stated below;
The petitioner is a Hindu by religion and an Orthopedic Surgeon by profession. The respondent No.2, his wife, is a Muslim and is a Psychiatrist by profession. The petitioner and the respondent No.2 both completed their M.B.B.S. Course in the year 2002 in India and were thereafter placed in London. The respondent No.2 converted herself into Hindu on 13.11.2007 at New Delhi and her marriage was solemnized with the petitioner at Nagpur on 16.02.2008. Initially both of them resided together in the matrimonial house at Nagpur, but thereafter went to London where the marriage was consummated. Thereafter ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:58:53 ::: 6 cri wp398.17.odt respondent No. 2 stayed back in London, but the petitioner came back in India in the year 2008 itself. The next visit of the petitioner to London was in the year 2009 and on 28.06.2010, the minor child Master Raajveer was born at London. The child was admitted to attend the Nursery class at Luton in the year 2014 and as on this date, he is aged about 7 years. Neither the petitioner, nor the respondent No.2 and the minor child Master Raajveer have acquired the citizenship of United Kingdom, though they have permanent (indefinite) leave to remain in United Kingdom. 6] It seems to us that the couple was planning to have another child, but, unfortunately the respondent No. 2 had the miscarriage in the month of September, 2016. Though Shri Jaiswal, appearing for respondent No.2 initially raised a plea that the petitioner brought the child in India in the month of October, 2016, without the consent of the respondent No.2, he admitted that it was on experimental basis to explore the possibilities of the couple relocating themselves in India, the petitioner-father brought the child in India. The minor child immediately joined the School at Nagpur in the first standard and was staying happily with the ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:58:53 ::: 7 cri wp398.17.odt members of the family of the petitioner, consisting of grand parents, uncle, aunt and cousins. The petitioner alone again joined the company of the respondent No. 2 at Luton (U.K.) on 27.11.2016 and he was there upto 08.12.2016. The efforts were also made to have another child by the method of In-Vitro Fertilisation (IVF). The respondent No.2 had been to Nagpur during January 2017 to 08.02.2017 to attend the wedding ceremony of the nephew of the petitioner at Raipur. During this period, she also attended the school fate in Bhartiya Vidya Bhawan School at Nagpur. She went back to United Kingdom on 08.02.2017 and in February, 2017, she again suffered miscarriage.
7] We have heard the learned counsels appearing for the parties at length on several points including the maintainability of this writ petition to deal with the dispute of custody of a minor child between the biological parents. In view of the recent decision of the Apex Court in the case of Nithya Anand Raghavan vrs. State of NTC of Delhi and Anr reported in 2017 (7) SCALE 183, we reject the objection of the maintainability of this petition and proceed further. ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:58:53 :::
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8] After going through the pleadings of parties,
documents placed on record and the arguments advanced, what we find is that it was a conscious and consensus decision of the petitioner and the respondent No. 2 to relocate themselves in India. In response to such decision, the petitioner came to India along with the child initially in the month of April, 2016 for the interview of the child in the School run by Bhartiya Vidya Bhawan at Shrikrushna Nagar, Nagpur, and upon securing admission, again brought the child in the month of October, 2016, when the School started. It is not a case where the petitioner snatched away the child from his mother and without her consent and knowledge brought him in India and admitted him in the School at Nagpur.
9] What we find is that the petitioner and the respondent No.2 both have to take a decision about their plan of relocation in India and unless such a decision is taken, it would not be in the interest and welfare of the minor child to disturb his education in India. Such an issue has to be taken to its logical end on priority basis keeping in view the precarious situation of a child. Though we find that the ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:58:53 ::: 9 cri wp398.17.odt respondent No.2 may be competent to secure the admission of the minor child in London, it would not be in the interest of the minor child whose admission is already secured in India to discontinue it with an uncertainty. In the process, the child has already lost his valuable time from 11 th April, 2017, till this date, though his admission in second standard in the School at Nagpur may have been secured. Almost half of the academic session of 2017-18 is complete and the minor child who has performed very well in the first standard by securing A+ grade, is deprived of his education. The loss of education for a complete academic year has its own repercussions on the career of the student, which has to be kept in mind.
10] The respondent No.2 along with the minor child Master Raajveer is staying in New Delhi with her brother. The mother of the respondent no.2 resides at Nagpur. It seems to us that the relations between the family members of the petitioner and the mother of the respondent No.2 does not appear to be cordial and what is usually noticed is the interference by the other family members in the matrimonial relations of the couple. We do not find any serious ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:58:53 ::: 10 cri wp398.17.odt differences or quarrel between the petitioner and the respondent No.2 and we expect both of them to live in an independent house along with a minor child at Nagpur to sort out the problem of their relocation and thereafter to take a decision either to retain the child or to shift him at another place.
11] We find that the manner in which the respondent No.2 has taken away the child from the School on 11.04.2017 is highly reprehensible and in such a situation, it is permissible for us to restore the child to the custody of the father with whom he was staying very happily from October, 2016 till April, 2017. We, however, refrain from passing such order, but warn both the parties not to adopt such course in deviation of law. No doubt, the primacy has to be given to the wishes of the minor child. The petitioner and the respondent No.2 both are the natural guardian of the minor child Master Raajveer and we do not intend to finally adjudicate the issue of custody in this proceeding and the parties will have to be left to have recourse to appropriate remedy available to them in the Family Court at Nagpur. Such a claim cannot be frustrated by permitting respondent ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:58:53 ::: 11 cri wp398.17.odt No.2 to carry the minor child out of India. We, therefore, pass an order as under;
I] The petition is partly allowed.
II] The custody of the minor child Master Raajveer
produced before us shall, for the time being, remain with the respondent No.2 Dr. (Smt.) Radhika Gupta. III] The respondent No.2 Dr. (Smt.) Radhika Gupta is restrained from taking away the minor child Master Raajveer out of India until further orders. IV] The petitioner and the respondent No.2 shall be at liberty to find out a separate accommodation at Nagpur where they can stay for the time being along with the minor child and to take the issue of their relocation in India to its logical end.
V] The petitioner shall be at liberty to institute appropriate proceeding for the custody of the minor child in the Family Court at Nagpur with prior intimation of its lodging to the respondent No.2 through her counsel at Nagpur, which shall be considered as effective service ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:58:53 ::: 12 cri wp398.17.odt upon the respondent No.2.
VI] The petitioner shall serve a copy of application/petition, if any, filed for custody of the minor child along with the documents and an application for interim relief, if so advised. No separate notice shall be issued to the parties concerned.
VII] Both the parties shall appear before the Family Court on the agreed date and the Family Court shall accordingly proceed with such matter.
VIII] The Family Court shall pass appropriate orders on the application for grant of interim relief/interim custody or in respect of visitation right, if required, within a period of two months from the date of the first appearance of the parties before it. This shall be done prior to 31 st March, 2018.
IX] If the respondent No.2 resides at Delhi along with the minor child, she shall bring on every date of hearing the minor child with her and during the entire period of her stay at Nagpur, the custody of the child shall exclusively remain with the petitioner.
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X] The petitioner shall also have rights of visitation to the
minor child as and when he goes to Delhi.
XI] The Family Court shall, however, be at liberty to pass
appropriate orders warranted by the situation, which may be in deviation of what we have passed above and there would be no question of any contempt of the order passed by this Court.
XII] The parties shall be at liberty to approach this Court in case of any difficulty by filing civil application in this very proceeding.
Rule is made absolute in above terms. No order as to costs.
JUDGE JUDGE
Rvjalit
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