Saihba Ali vs State Of Maharashtra & Ors

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

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 – Saihba Ali – 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

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.