Dr. Dhiraj S/O. Ramshankarji ... vs State Of Maharashtra Thr. The ...
2017 Latest Caselaw 8557 Bom

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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
 -------------------------------------------------------------------------------------------
 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,

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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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"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

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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

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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

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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.

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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

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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

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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

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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

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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


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