N Pavan Kumar vs R Maheswari
2021 Latest Caselaw 3698 AP

          HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
                            AND
              HON'BLE MS. JUSTICE J. UMA DEVI

                           F.C.A. No.172 of 2019

JUDGMENT: (Per Hon'ble Sri Justice U.Durga Prasad Rao)


      The challenge in this appeal is to the order dated 20.12.2019 in

F.C.O.P.No.110/2018 passed by the learned Judge, Family Court-cum-V

Additional District Judge, Tirupati dismissing the petition filed under

Sections 6 & 13 of the Hindu Minority and Guardianship Act, 1956 r/w

Section 9 of the Guardian and Wards Act, 1890 and Section 7(g) of the

Family Courts Act by the petitioner seeking guardianship and custody of the

minor boy N.Jainarayan Sai being his father.


2.    Petitioner's case is thus:

      The appellant/petitioner and respondent are the divorced couple and

the minor boy N.Jainarayan Sai is their son. Originally, the petitioner

belongs to Tirupati and respondent belongs to Chittoor. Their marriage was

held on 18.11.2010 at Tirupati. The respondent gave birth to a son on

02.10.2014 in Henry Ford West Blood Field Hospital, Michigan, U.S.A.

Due to matrimonial disputes, the petitioner applied for divorce on

05.03.2015 in the Circuit Court of Wayne Country, Family Division,

Michigan, U.S.A and divorce was granted on 21.01.2016 by the said Court

dissolving the marital relationship between the parties. Minor boy is

concerned, the Family Division Court passed consent order regarding joint

legal and physical custody and parenting time of the minor boy till he attains

the age of 18 years or until further orders of the said Court. Regarding

parenting time also the said Court passed order that parenting shall be

alternate on a three month basis with a rider that the three month alternating

schedule shall continue until 01.07.2018 or until the parties reside in the

same city/area whichever occurs first. In the event parents were unable to

establish residence in the same city/area by 01.07.2018, then it was agreed

by parties that the minor child would continuously reside with plaintiff in

Michigan and on the other hand, if the parties establish residence in the same

city/area on or before 01.07.2018, then the parties agree to 3-3-4-4 rotating

parenting schedule.

(a) Be that it may, the petitioner along with his minor son traveled to

Tirupati on 12.06.2017 with the prior consent of the respondent and since

then the child had been staying with him. The respondent also visited India

and in the month of October, 2017, she exercised three weeks of

parenting time with her son in her parents' home in Chittoor and returned to

Houston, Texas, U.S.A. and the boy was returned to Tirupati. The boy was

admitted in Edify School, Tirupathi. While so, subsequently some turn of

events took place whereby the respondent herein approached the Circuit

Court of Wayne Country, Family Division, Michigan, U.S.A and filed a

petition seeking a direction to the petitioner herein to return her minor son to

her custody and obtained ex parte order. The respondent also filed

W.P.No.30964/2018 before common High Court of Judicature at Hyderabad

for the State of Telangana and the State of Andhra Pradesh for relief of

habeas corpus. In his turn, sensing the threat of dislocation of boy, the

petitioner filed F.C.O.P.No.110/2018 before the Family Court-cum-V

Additional District Judge, Tirupati for declaration that he is lawful guardian

of his ward and restrain the respondent from interfering. It is also

petitioner's case that he appeared before the Circuit Court of Wayne

Country, Family Division, Michigan, U.S.A and submitted a detailed

explanation that Court cases were pending before the Family Court at

Tirupati and High Court of Andhra Pradesh on the same subject matter i.e.,

for guardianship and custody of minor son and thereupon, the Court at

Michigan, U.S.A dismissed the petition, filed by the respondent, on

01.10.2018 declining to hold jurisdiction on the ground that the Indian

Courts are in control of the matter and also following relevant provisions of

the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA)

for Family Courts in U.S.A. While the matter stood thus, according to

petitioner, the respondent along with her henchmen kidnapped the minor boy

on 15.11.2018 from the petitioner's parental home by beating his old mother

and took the boy to Texas, U.S.A. The petitioner lodged police report and

charge sheet was filed and case is said to be pending before the V Additional

Judicial Magistrate of First Class, Tirupati.

(b) While so, the respondent remained ex parte before the Family

Court, Tirupati and thereafter enquiry was conducted and oral and

documentary evidence was adduced by the petitioner before the said Court.

Learned Judge, Family Court, on wrong appreciation of the facts, evidence

and law, opined that since the petitioner approached the Circuit Court of

Wayne Country, Family Division, Michigan, U.S.A and obtained divorce

and the said Court while granting divorce, passed detailed order with regard

to the custody of the child, parenting time and video conferencing etc., and

in the said judgment the said Court clearly held that the Foreign Court shall

retain its jurisdiction until all of the provisions of that judgment of divorce

have been fulfilled and since the petitioner invited judgment of the divorce

from the Foreign Court and the child custody, parenting time and video

conferencing etc., were decided by the said Court, therefore finding of the

said judgment is binding on both parties. With these observations, the

Family Court, Tirupati dismissed the petition. In other words, the Family

Court at Tirupati declined jurisdiction.

Hence, the appeal at the instance of the petitioner.

3. Heard arguments of Sri N. Pavan Kumar, the petitioner who appeared

in person and Sri Prabhjit Jauhar, learned senior counsel representing Sri

J.M.Naidu, counsel for respondent.

4. Shorn of unnecessary details, the argument of Sri N. Pavan Kumar

pivots on two main points.

(a) Firstly, while severely fulminating the order of the Family Court at

Tirupati, he would argue that the trial Court declined to assume jurisdiction

on wrong appreciation of facts and law that both parties obtained divorce

and also the orders relating to care, custody and parenting time etc., from the

Court at Michigan and therefore, the said Court alone will have jurisdiction

since it has not abdicated its jurisdiction. The trial Court further erred in

holding that the boy was with the mother in U.S.A and therefore, it cannot

assume jurisdiction. He argued that in W.P.No.47995/2018 which was filed

by the petitioner seeking relief of habeas corpus against the respondent, a

Division Bench of this High Court has clearly held that since the boy was

forcibly taken away by the mother without any lawful authority or with the

aid of any order passed by the Indian Court, it would be just and proper to

direct the mother to subject herself to the jurisdiction of Civil Court in

F.C.O.P/G.W.O.P.No.110/2018 i.e., Family Court-cum-V Additional

District Judge, Tirupati and produce the child before the said Court. The

Division Bench further held, he would argue, in such an event the said Court

shall examine the boy, father, mother and all concerned and then pass

appropriate orders. He argued that the Division Bench pellucidly stated that

in its view, deciding of the issue by an appropriate civil Court is very much

essential. He thus argued that in terms of the said order, the Family Court at

Tirupati very much holds jurisdiction to decide the issue. However, without

following the said order in letter and spirit, the trial Court abdicated its duty.

(b) Nextly, he argued that the respondent approached the Michigan

Court and sought for custody of the minor boy. At first, the said Court

passed an ex parte order directing the petitioner herein to produce the boy

before the said Court. However, on the detailed explanation submitted by

the petitioner stating that petitions filed by him before Family Court at

Tirupati and writ petition before the High Court of Andhra Pradesh were

pending, the said Court declined jurisdiction by following provisions in

Section 202(1)(b) of the Uniform Child-Custody Jurisdiction and

Enforcement Act (UCCJEA). In view of the above judgments, the lower

Court ought to have decided the matter on merits instead of declining the

jurisdiction.

(c) He further argued that since 15.06.2017 the boy has been residing

at Tirupati and he was also admitted in a convent and studying there. Thus,

by 30.08.2018 i.e., the date of filing of F.C.O.P.No.110/2018, the boy's

residence in India was for more than one year and since he has been residing

with his father and grandparents at Tirupati, said place has become the

ordinary place of residence of the minor boy and therefore, the Family Court

at Tirupati holds jurisdiction to try the guardian petition. He thus prayed to

allow the appeal.

5. Per contra, Sri Prabhjit Jauhar, learned senior counsel representing Sri

J.M.Naidu, counsel for respondent, while supporting the order of the trial

Court argued that the couple led marital life in U.S.A. and they also begot

son there, who is a citizen of that country, and above all both the parties

invoked the jurisdiction of Michigan Court and obtained divorce. Besides,

the said Court has, in its order imposed terms regarding the custody and

parenting time for the parties to scrupulously follow and for all these reasons

the Michigan Court or the Courts in U.S.A. alone can exercise jurisdiction in

the matter of awarding guardianship over the minor boy. The boy's ordinary

place of domicile was U.S.A. and the petitioner took him away to Tirupati-

India without prior permission of the Michigan Court on the lame excuse

that the mother has consented for. Learned senior counsel vehemently

argued that mother's consent is of no significance in view of the terms

imposed by the Michigan Court, one of which was that the domicile or

residence of the minor child shall not be moved from the State of Michigan

without first obtaining the prior approval of the Court or its successor.

Therefore, the act of petitioner in bringing the minor boy to Tirupati, India

itself is illegal and for that reason Tirupati or any place in India cannot be

said to be the domicile or ordinary place of residence of the minor boy for

assumption of jurisdiction by the Indian Courts. Having noted these facts

perspicuously, learned Judge of Family Court at Tirupati has rightly declined

jurisdiction.

He placed reliance on Yashita Sahu v. State of Rajasthan1, Nithya

Anand Raghavan v. State of NCT of Delhi2

6. The point for consideration is whether the trial Court was right in

declining jurisdiction?

7. Point: As already stated supra. the Judge, Family Court at Tirupati

refused to exercise jurisdiction over petitioner's case predominantly on the

ground that both petitioner and respondent are residents of U.S.A; they lead

their marital life and begot a son and obtained divorce in that country;

further, most importantly the Family Division Court at Michigan, U.S.A.

imposed certain terms and conditions relating to care and custody and

parenting time of the minor boy to be adhered by the petitioner and

respondent and one of which was that the domicile or residence of the minor

child shall not be removed from the State of Michigan without first

obtaining prior approval of the said Court or its successor; however, the

petitioner has brought the minor boy to Tirupati without previous permission

of divorce Court on the plea that he obtained consent of the respondent; even

if such consent was given by the respondent, it was nothing but violation of

the orders of the Foreign Court and thus, both parties violated orders of the

Michigan Court. The trial Court also considered certain documents i.e.,

MANU/SC/0052/2020 = (2020) 3 SCC 67

MANU/SC/ 0762/2017 = (2017) 8 SCC 454

Ex.A37-Michigan Court's order dated 01.10.2018 declining jurisdiction for,

it was an inconvenient forum in respect of the application filed by the

respondent for custody of the son, Ex.A38-certified copy of the motion for

reconsideration of the order dated 01.10.2018 moved by the defendant and

Ex.A39-certified copy of the defendant's motion dated 22.10.2018 and held

that in those documents there was no mention about the modification or

cancelation of the conditions imposed in Ex.A12 by the Michigan Court.

The trial Court also observed that the child is at present staying with the

mother in U.S.A. since 16.11.2018. The trial Court further observed that the

Family Division Court at U.S.A. put a condition that it shall retain its

jurisdiction until all of its provisions of the judgment of divorce have been

fulfilled. Considering all the aforesaid aspects the trial Court opined that by

virtue of Ex.A12 the Court of Michigan retained its jurisdiction with regard

to custody of child and parenting time, and dismissed the petition.

8. We gave our anxious consideration to the order of the lower Court and

respective arguments of the parties. We make it clear that we are not

resolving the controversy as to whether father or mother is best suited to

grant custody of the minor boy since that issue has to be tackled by the

Family Court at Tirupati in case we ultimately hold the said Court should

exercise jurisdiction. We also make it clear that we do not decide the issue,

whether the act of respondent in taking back her minor son to Texas, U.S.A.

amounts to an offence inviting criminal action, as already criminal case is

pending in that regard. Suffice for the purpose of this appeal to advert that

respondent has taken away her son from Tirupati to U.S.A. on 15.11.2018.

Therefore, our main task in this appeal is to decide whether the trial

Court was factually and legally correct in abstaining itself from exercising

jurisdiction.

9. The couple leading marital life, begetting the son and obtaining

divorce from the Family Division Court at Michigan and the said Court

incorporating certain terms and conditions relating to care, custody and

parenting time of minor child agreed upon by the both parties are admitted

facts and need not be reiterated once again.

10. Be that it may, while exercising the alternate parenting time as fixed

by the Michigan Court and making efforts to locate a common city/area for

residence before 01.07.2018, the petitioner who is the father of the minor

boy visited to Tirupati, India along with minor boy on 12.06.2017 of course

with the prior written consent of the respondent-mother. The consent given

by the respondent through notarized letters dated 06.10.2017 and 12.10.2017

(marked as Ex.A13 and A40 in F.C.O.P No.110/2018) would show that

initially the respondent gave consent to the petitioner to travel to India along

with the boy between 11.06.2017 and 15.08.2017 and later she authorized

them to stay in India up to and after 01.07.2018 or until she returns to India.

Subsequently, swift turn of events took place. The respondent also visited

her parental home Chittoor and had some parenting time with her son.

During the said period, some bickerings took place between the parties on

the issue of petitioner's insistence for permanent stay in India and her

refusal. It appears sensing that the respondent may disrupt his guardianship,

the petitioner filed F.C.O.P.No.110/2018 to declare that he is the lawful

guardian of the ward and for granting permanent and sole custody of the son

to him. In her turn, the respondent filed a W.P.No.30964/2018 for habeas

corpus before the Common High Court of Andhra Pradesh and Telangana at

Hyderabad for custody of the child. She went to U.S.A and moved the

Family Division Court at Michigan seeking custody of boy from father. On

notice, the petitioner herein appeared and filed his counter. Having

considered that the petitioner along with boy has been residing in India since

some time with an intention to remain in India indefinitely and proceedings

are pending before the Indian Courts, the said Court observing that it was no

longer holding continuous jurisdiction over the custody of the minor child

and the said Court is an inconvenient forum to litigate, dismissed the petition

filed by the respondent.

11. The facts would show that subsequently the W.P.No.30964/2018

came up for hearing wherein, the respondent obtained custody of her boy by

depositing her passport and some days after, she returned the boy to the

petitioner and took back her passport. On 15.11.2018 when the said W.P.

was coming up for hearing, the petitioner said to have attended the High

Court of A.P. His version is that on that day the respondent did not appear

but she sought permission through her counsel to withdraw the writ petition.

The order dated 15.11.2018 in W.P.No.30964/2018 would show that the

Court granted permission and accordingly, the W.P. was dismissed as

withdrawn. Then it is the case of the petitioner that on the same day while

he was at Hyderabad, the respondent along with her henchmen went to his

house at Tirupati and forcibly kidnapped his son to U.S.A by causing

injuries to his old aged mother who resisted her acts. A police complaint

was given thereafter and charge-sheet was filed and criminal case is

pending.

12. Thereafter, petitioner filed W.P.No.47795/2018 for habeas corpus,

seeking a direction to the respondent to produce the minor boy and to hand

over his custody to him. The respondent filed her counter. While denying

the allegation of kidnap, it is contended that she took the child as there was

no order operating against her and that she has not violated any law either

Indian or Foreign in taking minor child to U.S.A.

Upon hearing both parties, the Division Bench of this High Court

passed the following order:

"23. Xxxx. From the narration of events, it clearly indicates that while order of the High Court was in force, the child was forcibly taken away to USA by the mother. Though it is pleaded that no order is in force for the reason that the writ petition was withdrawn on 15.11.2018, but this withdrawal is subject matter of dispute, for the reason that the same is being done only with an intention to get away with the order passed by the High Court in ordering custody of the boy to the father.

24. However, the record clearly shows that on the day when the writ petition was withdrawn, the boy was abducted from the lawful guardianship of his grand mother. It is no doubt true that orders are passed by the Courts in U.S., but, at the same time, the Courts in India, while recognizing the custody of the boy with the father, granted interim custody to the father, meaning thereby, the boy is in lawful custody of the father in India. Forcible taking away of the boy from the custody of his grand mother, is not permitted by any law or by any order passed by the Courts in U.S. In fact, there is no answer from the counsel when the Court posed a query as to how the mother came into custody of the boy on 15.11.2018. Since November, 2018, the boy is in the custody of the mother and father has been visiting USA fighting out the litigation in the said courts. At the same time, the appropriate civil Court in India is also seized of the matter with regard to the custody of the child vide FCOP/GWOP No.110 of 2018 before the Family Court at Tirupati.

25. Since the boy has been forcibly taken away without any lawful authority or with the aid of any order passed by the Indian Court and since the welfare of the child is a paramount consideration, it will be just and proper for us to direct the mother to subject herself to the jurisdiction of the civil court in FCOP/GWOP No.110 of 2018 before the Family Court-cum-V Additional District Judge, Tirupati, and produce the child before the said Court. In

which even, the said Court shall examine the boy, father, mother and all concerned and then pass appropriate orders. In our view, deciding of the issue by the appropriate civil court is very much essential, more so, in view of the judgment of the division bench of this Court in Alekhya Yalamanchili's case, where the court held that even if the child is not within the territorial jurisdiction of the court, if parties have approached the civil court, which is within the supervisory or superintendence jurisdictional area of High Court, it is entitled to assume jurisdiction.

26. In the result, the writ petition is allowed, directing the 12th respondent to produce N. Jainarayan Sai, a minor child aged about 5 years, sone of the petitioner and the 12th respondent, before the Family Court at Tirupati within 8 to 12 weeks from the date of receipt of a copy of this order. On which, the concerned civil court shall decide the issue relating to interim custody of the child pending O.P. as well the O.P. in accordance with law at the earliest"

The above order would depict that the Division Bench of this High

Court made the following crucial observations:

(i) the respondent had taken away the boy to U.S.A. on 15.11.2018 from the lawful guardianship of his grandmother / father. It is true that orders were passed by the Courts in U.S.A., but at the same time the Courts in India, while recognizing the custody of the boy with the father, granted interim custody to the father meaning thereby, the boy was in lawful custody of father in India.

(ii) The counsel for respondent could not answer to the Court's query as to how the mother came into custody of the boy on 15.11.2018.

(iii) The appropriate civil court in India seized of the matter with regard to the custody of the child vide FCOP/GWOP No.110/2018 before Family Court at Tirupati.

(iv) Since the boy has been forcibly taken away without the lawful authority or the aid of any order passed by the Indian Court and since the welfare of the child is a paramount consideration, it will be just and proper for this Court (Division Bench) to direct the mother to subject herself to the jurisdiction of Civil Court in

FCOP/GWOP No.110/2018 before the Family Court, Tirupati and produce the child before the said Court, in which event the said Court shall examine the boy, father, mother and all concerned and then pass appropriate orders. Deciding of the issue of the appropriate civil court is very much essential.

13. The above observations would indicate, the Division Bench of this

Court having taken stock of relevant facts and welfare of the minor boy into

consideration, directed both the parties to subject themselves to the

jurisdiction of the Family Court-cum-V Additional District Judge, Tirupati

by producing the child for examination of the Court. The Division Bench

also directed the Family Court, Tirupati to examine the boy and his parents

and all other concerned and then to pass appropriate orders. The Division

Bench in this regard referred the Division Bench judgment of High Court of

A.P. in Alekhya Yalamanchili v. The State of Andhra Pradesh3 wherein

it was observed thus:

"23. The law is thus well settled that the dispute before the civil court under Guardians Act is concerned with the final child custody rights of the parents whereas habeas corpus proceeding deals with protection of the person who is held in unlawful custody. A child is not a property or a commodity. When the parents complain unlawful removal from its jurisdiction the court is bound to issue habeas corpus exercising parens patriae jurisdiction. Both the proceedings are summary but the proceedings under Guardians Act are substantive whereas habeas corpus proceedings are procedural. Even if the child is not within the territorial jurisdiction of the court, if the parties had already approached a competent civil court which is within the supervisory or superintendence jurisdictional area of the High Court, it is entitled to assume jurisdiction (Emphasis supplied). The factum of relocation of a child is no ground to oust habeas corpus jurisdiction of the High Court. We, therefore, hold on the issue against the third respondent and in favour of the petitioner."

14. In the light of above pellucid directions, there can be no doubt that the

Family Court-cum-V additional District Judge, Tirupati shall assume

MANU/AP/0307/2012 = 2012(3) ALT 803

jurisdiction to decide the case before it on merits as to who among the

parents is best suited to hold the custody of the minor boy and other

incidental issues. However, in our considered view, the trial Court

committed a grave error in repudiating the jurisdiction without considering

the copy of the order in W.P.No.47795/2018 filed before it and got marked

as Ex.A29. The trial Court dismissed the petition on untenable grounds that

the parties lead marital life and obtained divorce in U.S.A. and the Court at

Michigan while granting divorce imposed the conditions and the said Court

has not abdicated its jurisdiction. This assigned reason for declining

jurisdiction by the trial Court is unjust in the light of the fact that when the

respondent herein moved the Court at Michigan for custody of the boy, the

said Court considering the facts that the father/petitioner along with son has

been residing in Tirupati, India since 11.06.2017 with the consent of mother

and he expressed his desire to remain in India with the child indefinitely and

already the proceedings between the parties were pending before Indian

Courts, perspicuously held that the said Court no longer holds continuing

jurisdiction over the custody of minor it was an inconvenient forum to

litigate in the light of the MCL 1722. 1202 (1)(a) and (b) and (2) and

ultimately dismissed the petition filed by the respondent/mother. The said

order copy was also marked as Ex.A37 in FCOP.No.110/2018. Therefore,

the trial Court cannot abdicate its jurisdiction. Running the risk of

pleonasm, the boy's ordinary place of residence since more than one year

prior to the filing of F.C.O.P No.110/2018 was at Tirupati where he was

studying and at the same time, the Michigan Court which granted divorce

between the parties and imposed conditions relating to the custody and

parenting time, has clearly held that it no more held exclusive jurisdiction

and it was an inconvenient forum since the boy has been residing with his

father in India with the consent of the respondent. Considering these crucial

facts and also the fact that the respondent has taken away the boy from the

lawful custody of the father at India, the Division bench has directed the

Family Court at Tirupati to decide the F.C.O.P.No.110/2018 on merits.

Thus, the trial Court is obligated to follow the said order. It should be noted

here the allegation that initially the father has brought the minor boy to

Tirupati, India without seeking permission of Michigan Court was not

seriously viewed by the said Court for the reason that the respondent-mother

has consented for shifting of the boy to Tirupati. So the Family Court at

Tirupati cannot decline jurisdiction on the ground that the boy was brought

to Tirupati, India without the permission of Michigan Court. Thus, in any

view of the matter, the trial Court was not correct in declining the

jurisdiction.

15. It is contended by the respondent that the order in

W.P.No.47795/2018 was challenged in Special Leave to Appeal (Crl)

No.6436/2019 before the Hon'ble Apex Court and therefore the direction in

W.P.No.47795/2018 need not be followed. We cannot appreciate this

argument. A perusal of the order dated 24.01.2020 passed by the Hon'ble

Apex Court in Special Leave to Appeal (Crl) No.6436/2019 would show that

on 29.07.2019 stay was granted against the order in W.P.No.47795/2018.

Thereafter, on being informed that the F.C.O.P.No.110/2018 was dismissed

by the Family Court, Tirupati and an appeal was pending before the High

Court of Andhra Pradesh against the said order, Hon'ble Apex Court

observed that the aforesaid subsequent act has over taken the aspect of the

challenge before the Supreme Court and thus there was no question of

production of child before the Family Court at Tirupati. With that

observation Special Leave Petition was disposed of. It should be noted that

Hon'ble Apex Court has not set aside the order in W.P.No.47795/2018 on

merits. It was only held that the question of production of the child before

the Family Court at Tirupati does not arise because of dismissal of

F.C.O.P.No.110/2018 by the Family Court at Tirupati. Therefore, the

respondent cannot contend that the order in W.P.No.47795/2018 can be

ignored. The other contentions raised by the respondent are of not much

significance. The decisions cited also will be of no avail.

16. In the result, this Appeal is allowed and order dated 20.12.2019 in

F.C.O.P.No.110/2018 passed by Judge, Family Court-cum-V Additional

District Judge, Tirupati is set aside with a direction to the said Court to

dispose of the F.C.O.P.No.110/2018 on merits in accordance with governing

law expeditiously.

__________________________ U. DURGA PRASAD RAO, J

______________ J. UMADEVI, J 23rd September, 2021 MVA/KRK