Home > Child Custody > Father to get the Custody of Minor Girl- Bombay High Court, Goa Bench

Father to get the Custody of Minor Girl- Bombay High Court, Goa Bench

IN THE HIGH COURT OF BOMBAY

 (GOA BENCH)

 

CRIMINAL WRIT PETITION NO.34 OF 2005 
3-3-2006  
(R.M.S. KHANDEPARKAR, N.A. BRITTO, JJ.)  
Mrs. Mandy Jane Collins 
Vs. 
James Michael Collins & anr.  
Appearances : 
*Shri Anil Malhotra for the Petitioner.* 
*Sarvasri M.S. Usgaonkar, Sr. Advocate, with S.G. Bhobe for the Respondent
No.1.* *Shri S.N. Sardessai, Public Prosecutor, for the Respondent No.2.* * *
*Constitution of India, 1950 _ Article 226 _ Custody of child _ Minor child
_ Illegal detention or unlawful custody _ Habeas Corpus petition _
Maintainability of _ Alternate remedy.*
Petitioner-mother is a permanent resident of Ireland seeking custody of her minor daughter from respondent-husband _ Petition for writ of habeas corpus would lie only in cases of illegal or wrongful detention or custody _
Petition would also lie in the case of demand for custody of child provided
it is illegally and unlawfully denied to the parents or any one of them _ No
material to show that the child was residing with father due to some
forcible act on part of father or that it was without consent or knowledge
of her mother _ In interview the child appears healthy and seems to be happy to continue to reside with her father and the petitioner has been
occasionally visiting her _ Disturbance of status quo would not be in the
interest of child. (See para 17, 18, 19, 20, 21)  
Held : a) “All the decisions relied upon lay down the law that the petition
for writ of habeas corpus would lie only in cases of illegal or wrongful
detention or custody. Undoubtedly, it would also lie in the case of demand
for custody of child provided it is illegally and unlawfully denied to the
parents or any one of them.” (Para 17).  
b) “Apart from mere allegation that proper education will be available at
Ireland as compared to the one which is being imparted at Goa, no factual data in that regard is placed on record. The materials do not disclose any obstruction to the petitioner from visiting Ella or even taking her for few days or during holidays at the place of residence of the petitioner in Goa.
The question of permitting Ella to be taken to Ireland, without adjudicating upon the rival contentions sought to be raised in the matter which essentially would require analysis of the disputed questions of fact, would not be possible in exercise of writ jurisdiction.” (Para 18).  
c) “Besides, the educational year is also from June to April of the
succeeding year. We are already in the month of March. At this stage, any
change in the residential place of the child would also disturb the
educational process for the child. Taking into consideration the decision of the Apex Court in Dr. Mrs. Veena Kapoor’s case (supra) and further that the matter involves disputed questions of fact which are required to be
established by evidence, it would be in the interest of the child to relegate the parties to normal civil proceedings for the decision on the point of custody of the child, without disturbing the prevailing situation.”(Para 19).
d) “We had interviewed the child in the chamber, firstly in the presence of
her parents and their Advocates and thereafter in their absence. The child
appears healthy and she seems to be happy to continue to reside with her
father and she enjoys all the necessary amenities, care and protection from
her father and at the same time she has lot of respect and love for both the
parents. It is also revealed from the interview that the mother i.e., the
petitioner has been occasionally visiting the child at her residence at
Anjuna.” (Para 20).
e) “In the facts and circumstances of the case, there being no satisfactory
material placed before us to arrive at the conclusion of illegal detention
or unlawful custody of the child by the respondent in respect of Ella and
there being no sufficient material placed before us to justify disturbance
of the status quo, bearing in mind the best interest of the child, it would
be appropriate not to disturb the present situation in relation to the minor
child and, therefore, in our considered opinion, leaving the parties to
pursue civil remedy if they so desire, the petition deserves to be
dismissed.” (Para 21).
Result : Petition dismissed.
Case Law Referred :

 

1. Eugenia Archetti Abdullah v. State of Kerala 2005 (1) HLR 34 (Para11).

 

2. Paul Mohinder Gahun v. State of NCT of Delhi & Ors. 2005 (1) HLR
428 (Para 10).

 

3. Smt. Radha @ Parimala v. N. Rangappa 2004 (2) HLR 416 (Para 16).

 

4. Kumar V. Jahgirdar v. Chethana Ramatheertha 2004 (1) HLR 468 (Para15).

 

5. Miss Atya Shamim v. Deputy Commissioner/Collector, Delhi
(Prescribed Authority under Citizenship Act) and others AIR 1999 Jammu &
Kashmir 140 (Para 8).

 

6. Dhanwanti Joshi v. Madhav Unde 1998 (1) SCC 112 (Para 9).

 

7. Smt. Manju Tiwari v. Dr. Rajendra Tiwari and another AIR 1990 SC
1156 (Para 14).

 

8. Poonam Datta v. Krishanlal Datta and others AIR 1989 SC 401 (Para13).

 

9. Mrs. Kuldeep Sidhu v. Chanan Singh and others AIR 1989 Punjab and
Haryana 103 (Para 7).

 

10. Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and another AIR 1987 SC
3 (Para 6).

 

11. Surinder Kaur v. Harbax Singh Sandhu and another 1984 HLR 780 (Para5).

 

12. Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor AIR 1982 SC 792 (Para12).
JUDGMENT

 

R.M.S. Khandeparkar, J.
Heard. By the present petition, the petitioner is seeking issuance
of writ in the nature of habeas corpus for production, release and return of
her minor daughter by name Ella Karina Collins from the respondent No.1, in
order to enable the petitioner to take her to Ireland.
2. It is the case of the petitioner that the petitioner is a permanent
resident of Ireland and a British citizen holding a permanent passport of
the United Kingdom. She arrived in India on 18-9-2005 specifically to seek
the custody, care and control of her minor daughter Ella, who is aged about
8 years and who is presently at House No.1784, Mazalvaddo, Anjuna, Bardez,
Goa, with her father. The petitioner was married to the respondent No.1 on
6-6-1998 and Ella was born on 5-7-1997 in England and she is also a British
national. The respondent No.1 is from the United States of America. It is
her further case that Ella started her preliminary education at Coars
National School in Ireland. The petitioner is employed as an English teacher
and is a permanent resident of Ireland. The respondent No.1 owned a house in
Washington State where he used to reside and had his business in Seattle,
U.S.A. However, as of now he is not pursuing any business activity and
presently is living in Goa in the said house referred to above. It is her
further case that consequent to the marriage they stayed for different
period of times in the U.S.A. and the U.K., besides spending some time in
India and other countries for holidays. However, due to irreconcilable
differences, they parted company of each other in November, 2000, but have
not yet obtained any divorce decree to dissolve their marriage. After Ella
attended her school in Ireland in June, 2004, there were vacations in the
months of July and August and during those holidays, the respondent
No.1took Ella to
Switzerland and from there to India in September, 2004. Initially, the
respondent No.1 took Ella to a Dharmashala in Himachal Pradesh and then in
November, 2004 the respondent No.1 brought Ella to Goa.
Towards the end of November, 2004 he got Ella admitted to Mater
Dei Educational Institution at Saligao, Goa, in IInd standard and after the
break in April-June, 2005, Ella was detained in the same standard. It is her
grievance that inspite of persistent efforts on her part, the respondent
No.1 refused to return Ella to Ireland. The petitioner has been aiming and
working to see all along that Ella should continue her education in Ireland.
Presently, the child has lost considerable weight and does not enjoy some of
the medical facilities which would be available to her in Ireland. She does
not have the emotional and mental support of her mother which is necessary
for upbringing an eight year old child. Besides that, Ella is not in her
natural surrounding. All the efforts to negotiate with the respondent No.1,
even with the intervention of strangers and friends, have failed. It is her
case that the climate, environment, surrounding, family support, mother’s
love, affection, schooling and all the other necessary ingredients are
available only in Ireland and the respondent No.1 has U.S. Passport of Ella
on which he brought her to India and which is also in his custody. The
petitioner is the best person to look after and maintain the child of 8
years in Ireland and the welfare of the minor being of paramount
consideration, the child’s custody should be given to the petitioner. The
petitioner is also a well-qualified teacher and leads a stable life in
Ireland. The respondent No.1 is over 62 years of age and living alone and
cannot provide the necessary care for an 8 year old girl. In the interest of
justice, therefore, the custody of the minor girl should be ordered to be
given to the petitioner, along with her passport which is in the custody of
the respondent No.1.
3. On the other hand, while raising preliminary issue regarding the
non-maintainability of the writ petition in the nature of habeas corpus for
seeking the custody of the minor child on account of alternative and
efficacious remedy for such relief being available in the Civil Court in
Goa, it is the case of the respondent No.1 that the petitioner has
suppressed material facts while approaching the Court and on that count also
the petition deserves to be dismissed. It is his further case that the
petitioner and the respondent No.1 came for the first time in Goa after
their marriage in the month of December, 1996 and stayed at Anjuna till
March, 1997. The petitioner and the respondent were staying, after their
marriage, in the U.S.A. and the petitioner even became eligible for a
Green-card as a permanent American resident status, in or about November,
1999. The petitioner and the respondent together returned to India in
October, 2000 and toured various places in North India and thereafter along
with the child came to Goa in November, 2000, when the petitioner decided to
separate from the respondent and informed the said fact to the petitioner on
or about 11-11-2000 while they were in New Delhi. Consequently, the
petitioner and the respondent commenced residing separately at Anjuna from
November, 2000 onwards till March, 2001. At the same time, Ella also used to
stay occasionally with her mother. The petitioner was staying in a single
room while the respondent No.1 has hired a house for residence. Their child
Ella was staying on a week-to-week basis at both the places. Ella proceeded
along with the petitioner in March, 2001 to the U.K. while the respondent
proceeded to the U.S.A..
In or about June, 2001, the petitioner came to the United
Stateswith Ella and contacted the respondent with whom Ella was
residing till
September, 2001, when the petitioner took her back to the United Kingdom,
with the consent of the respondent, while the petitioner completed a degree
in the English language teaching at Seattle University. In terms of the
agreement between the parties, both came to Goa in November, 2001 since by
that time the respondent desired to make Goa as a permanent home. The
petitioner and the respondent shared the company of their minor child from
November, 2001 till May, 2002 and during the said period the child was
residing with the respondent and even undertook long holidays to Himachal
Pradesh and the other parts of North India. Some time in June, 2002, with
the consent of the respondent, the petitioner took Ella to the United
Kingdom and visited Ireland till August, 2002 on condition that Ella would
return to Goa in September, 2002. At that time, the petitioner was seen
residing in the company of one person by name Dave. In September, 2002 the
petitioner informed her inability to come to Goa and again in October, 2002
informed that she would come to Goa in November, 2002, when she actually
came to Goa. Ella then began to reside with the respondent No.1. The
petitioner used to visit Ella on and off while residing in a room at Anjuna.
During the said period, a common friend by name Barbara attempted to mediate
about the custody of Ella between the petitioner and the respondent and it
was agreed that the child should commence school in Goa from November, 2002
since she would have by then completed 6 years of age and accordingly Ella
commenced her education at Rainbow CLCC Co-operative Centre for Children at
Anjuna since November, 2002.
The petitioner, as agreed, took Ella to Ireland in March, 2003 and
the respondent No.1 collected his child Ella from the petitioner in July,
2003 and after visiting the child’s maternal grandparents, uncle, aunt and
cousins in the United Kingdom and after a stay of two months in the United
Kingdom, at the house of the respondent’s elder daughter, returned to India
in September, 2003. In or about November, 2003, the petitioner returned to
Goa and commenced staying at Palolem Beach, Canacona, Salcete-Goa, at a
distance of over 80 kms. from the respondent’s residence. She stayed there
upto March, 2004 and occasionally used to visit Ella as well as used to take
Ella out to Palolem Beach to spend some time with her. In March, 2004 the
parties agreed that the petitioner shall take Ella with her for holiday to
the United Kingdom and Ireland since Ella had holidays from school. Ella
stayed with the petitioner till August, 2004 when the respondent
No.1collected Ella from the United Kingdom and after visiting
relations in the
United Kingdom returned to Goa in October, 2004 along with Ella who was then
by 7 years of age. She was then admitted to Mater Dei Education Institution
at Saligao in November, 2004. This fact was informed in advance to the
petitioner. The said school is an ICSE school (Delhi Board) with very high
standard of education and founded since 1909. It is a reputed school in North
Goa.
Since October, 2004 the child Ella has been permanently residing
at the respondent’s residence in House No.1784, Mazalvaddo, Anjuna, Bardez,
Goa and had never been in the custody of the petitioner throughout this
period. The petitioner came back to India in late November, 2004 and stayed
in Palolem upto March, 2005. The petitioner left Goa for the United
Kingdomsome time in March, 2005 and again returned to
Goa on 18-9-2005 along with her friend Stuart. The petitioner had been
visiting the child at the respondent’s residence and even taking her out for
meals or to stay at her room at Anjuna. Even after filing of the petition,
she had been visiting the child in the residence of the respondent, without
difficulty. There had been exchanges of messages in October, 2005 which
would reveal the above facts. The child is growing in a most conducive
atmosphere. She attends her regular routine of going to school by school
bus, returns home at lunch hours and after completing her homework, she
regularly plays and spends time with the respondent as well as the friends
of her age in the locality of the respondent’s house. The reply filed by the
respondent refers to details of the arrangement made by the respondent for
the welfare of the child and for her upbringing.
4. Before we deal with the rival contentions which are sought to be
raised in the matter, it is necessary to consider the preliminary issue
which is sought to be raised in the matter regarding non-maintainability of
habeas corpus writ petition to claim the custody of the child in view of
availability of alternative efficacious remedy for that purpose. Various
decisions are sought to be relied upon in that regard by the learned
Advocates appearing for the parties.
5. In Surinder Kaur v. Harbax Singh Sandhu and another, reported in
1984 HLR 780, the Apex Court was dealing with a case wherein the wife, while
she was away on account of being employed and without her knowledge, the
husband took away the boy from England and brought him to India on 31-1-1983
and on the same day the wife obtained an order under Section 41 of the
Supreme Court Act, 1981 under which the boy became the Ward of the Court
with effect from that day. That order was confirmed on 22-7-1983 by Mrs.
Justice Booth of the High Court of Justice (Family Division) and by the said
order the husband was directed to handover the custody of the minor boy to
the wife or her agent forthwith. The wife came to India in April, 1983 and
in May she filed petition before the learned Judicial Magistrate, First
Class, Jagraon for the custody of her son contending that he was in the
illegal custody of the husband. The Apex Court has also observed that, from
the records it was disclosed that the father was a man without a character
who had planned to kill wife and even though the wife had obtained an order
of probation for him, he abused her magnanimity by running away with the boy
soon after the probation period was over. In fact, the husband was trapped
by the Police who got the scent that he was negotiating with a hitman to
have his wife run over by a car. The husband was convicted and sentenced to
term for three years for that offence. Ironically, it was the wife who
intervened and succeeded in obtaining a probation order for her husband who
had attempted to procure her murder. In those circumstances, the directions
were issued for delivery of custody of the child to the mother.
6. In Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and another,
reported in AIR 1987 SC 3, it was a case wherein on 23-12-1980, the
petitioner along with her son took up separate residence in a women’s
shelter and filed a petition for divorce in January, 1981. By decree dated
23-4-1982, the marriage was declared dissolved and the petitioner was held
to be entitled for custody and control of the minor child until she reaches
the age of 18 years or until further order by the Court, while giving
visitation right to the father. Taking advantage of the visitation right,
the father picked up the child from the school on 10-1-1986 and
surreptitiously left the United States of America for India on 11-1-1986,
without intimating the Court about the taking away of the child out of its
jurisdiction and out of the country, nor giving slightest indication to the
petitioner about his intention to leave the United States permanently for
India. The mother filed writ petition for habeas corpus for production of
the child. In response to the notice of the Court, only explanation which
the father had was that, his father was seriously ill and he wanted his
father to see the child and further that the child himself had expressed
willingness to prefer to stay with him in Pune and that therefore he was
admitted to a school at Pune. After considering the materials on record, the
Apex Court held that the mother is full of genuine love and affection for
the child and she can be safely trusted to look after him, educate him and
attend in every possible way to his proper up-bringing and the child had not
taken root in this country and he was still accustomed and acclimatized to
the conditions and environments prevailing in the place of his origin in the
United States of America and the child’s presence in India was the result of
an illegal act of abduction by the father who cannot claim any advantage by
stating that he has already put the child in some school at Pune.
7. In Mrs. Kuldeep Sidhu v. Chanan Singh and others, reported in AIR
1989 Punjab and Haryana 103, the High Court of Punjab and Haryana was
dealing with a case wherein after the marriage between the parties in the
year 1975 they were living in Canada and they got two issues, namely,
Navreet and Preeti in 1978 and 1981 respectively. Navreet was brought by his
father in India in 1984 and was left with his grandfather in Punjab and the
father of Navreet left India for Canada. About a year-and-half thereafter,
he also brought his daughter to India and left her with his father. Towards
the end of 1986 he came to India and took away both the children to Canada.
Meanwhile, the relationship between the husband and the wife were strained
and they were living apart. On 21-11-1986 the mother obtained an order from
the Supreme Court of Ontario granting her interim custody of the children
and by that order the father was restrained from removing the children from
the Province of Ontario. On getting to know of the said order, the husband
left Canada on the very day with the children and brought them to his
father’s place in Punjab. Observing that there is an order of the competent
Court granting custody of the children to the mother and restraining the
father from taking them out of the jurisdiction of the Court, and yet the
children, in violation of the said order were brought in India and were not
allowed to be in the custody of their mother, therefore, in those
circumstances, the mother was held entitled for the custody of the children.
8. In Miss Atya Shamim v. Deputy Commissioner/Collector, Delhi
(Prescribed Authority under Citizenship Act) and others, reported in AIR
1999 Jammu & Kashmir 140, after taking into consideration various decisions
on the point of maintainability of habeas corpus petition for the custody of
a child, it was held that in any proceeding before any Court concerning the
custody or upbringing of an infant, the Court must have regard to the
welfare of the infant as the first and paramount consideration and must
treat any rights, priorities or preferences of the parents or of either of
them or of other person as subordinate thereto; that comfort, health and the
moral intellectual and spiritual welfare of the infant are the true matters
for consideration in such cases and not rights of the parties. It was held
that the true principle deducible from the authorities by which the Court
should be guided in such cases, was that the Court is to judge upon the
circumstances of each particular case and that the welfare of the infant,
irrespective of its age is the main factor to be regarded. On the point of
custody of the child, it was also observed that the personal law of the
parties permit the mother to keep the custody of the female child till the
age of 15 years and that there was no case made out for entrusting the
custody of the minor to the father.
9. In Dhanwanti Joshi v. Madhav Unde, reported in 1998 (1) SCC 112,
the respondent Unde had married the appellant Dhanwanti and after marriage
left for the United States of America where he obtained an ex parte divorce
against his first wife Bhagyawanti. The said Bhagyawanti filed a petition in
the District Court at Nagpur claiming that the decree obtained by Unde to
have been obtained on misrepresentation of the facts and claimed for divorce
and maintenance and succeeded in getting a favourable decree. Dhanwanti
meanwhile delivered a child in the United States of America on 15-3-1983 and
due to certain compelling circumstances, she left the respondent Unde along
with her child on 20-4-1983 and thereafter the husband had no occasion to
live with his wife and the child. It was followed by litigation, civil and
criminal, both in the United States of America and India for over a period
of 14 years. The respondent Unde continued to live in the United
Stateswhile the appellant Dhanwanti and her son had been living in
India while the boy was studying at Pune. The respondent filed a divorce
case in the United States of America against Dhanwanti and also asked for
custody of the child. Initially, the U.S. Courts gave custody of the child
to the mother Dhanwanti. Divorce was decreed on 23-9-1983. On
20-2-1984Dhanwanti along with the child came to
India. The husband obtained an ex parte order on 11-4-1984 for visitation
rights, which was further modified as temporary custody on 30-4-1984, which
was made a permanent custody by ex parte order dated 28-4-1986. Dhanwanti
filed petition in the Civil Court at Bombay for declaration that her
marriage with the respondent was null and void on account of prior
subsisting marriage with Bhagyawanti.
Meanwhile, the respondent-husband filed a habeas corpus petition
in this High Court which came to be dismissed on 15-4-1986. The litigation
in the Family Court continued and ultimately it passed order allowing the
father to take custody of the child while dismissing the petition filed by
Dhanwanti. The appeal carried to the High Court failed and that is how the
matter was brought before the Apex Court. Taking note of the fact that the
Family Court and the High Court had based their decisions solely on the
circumstances regarding the financial capacity of the father to give better
education to the boy in the United States of America and after interviewing
the boy, the Apex Court found that he was quite intelligent and was able to
understand the facts and circumstances in which he was placed and he
informed the Hon’ble Judges of the Apex Court who had interviewed him that
he was not inclined to go with his father to the United States and wanted to
complete his study in India till he completes 10+2 or he finishes his
graduation. The Apex Court held that the orders passed by the High Court and
the Family Court to be erroneous and the custody of the child was retained
with his mother.
10. In Paul Mohinder Gahun v. State of NCT of Delhi & Ors., reported in
2005 (1) HLR 428, while holding that a girl child of tender age is bound to
shape better in the care of her mother, especially when it is not the case
of the petitioner that the environment in which the respondent is living in
India is not conducive for the upbringing or that the child will not have
proper schooling necessary for any career that she may choose for herself
and even though the father is financially better off than the mother with
whom the child is presently living but then the superior financial position
of the husband is no ground for change of the custody. It was also observed
that the prospects of immediate Canadian education which the father may be
ready to provide also cannot be a sufficient ground for shifting the custody
of the child to the father ignoring the fact that the child had never stayed
away from her mother and is in her custody. The fact that the child is a
Canadian citizen by birth is also hardly of significance at this stage.
11. In Eugenia Archetti Abdullah v. State of Kerala, reported in 2005
(1) HLR 34, it was held that writ of habeas corpus will be issued only when
there is illegal detention or wrongful custody. It was a case of a child of
three years held to be in illegal custody of the father.
12. In Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor, reported in AIR
1982 SC 792, it was held that in a habeas corpus petition it is difficult to
take evidence without which the question as to what is in the interest of
the child cannot satisfactorily be decided.
13. In Poonam Datta v. Krishanlal Datta and others, reported in AIR 1989
SC 401, the Court ordered for continuation of workable arrangement till
either of the parties go for appropriate guardianship proceedings and gets a
declaration. Therein, upon the orders of the Court, the husband had shifted
over to Modi Nagar and was prepared to stay at Modi Nagar in view of the
fact that the boy was admitted to the local school at Modi Nagar where the
mother was a teacher. In those circumstances, the Apex Court directed that
the boy should continue to study in the said school and neither party would
be permitted to withdraw him therefrom without permission of the Court.
14. In Smt. Manju Tiwari v. Dr. Rajendra Tiwari and another, reported in
AIR 1990 SC 1156, it was an order passed on satisfaction of the Apex Court
having arrived in the peculiar facts and circumstances of the case and
taking into consideration the past history, which is not narrated in the
order.
15. In Kumar V. Jahgirdar v. Chethana Ramatheertha, reported in 2004 (1)
HLR 468, the Apex Court held that, in the facts and circumstances revealed
therein, the judgment of the High Court giving exclusive custody of the
child to the mother with visitation rights to the natural father, could not
be found fault with except directing certain modifications for the reasons
which were enumerated in the said judgment. One of the reasons disclosed for
giving the custody of the child was that the father of the child was living
alone with his father and there was no female member living in the house and
the father was carrying on business which required him to attend to his
office and business engagements outside his residence.
16. In Smt. Radha @ Parimala v. N. Rangappa, reported in 2004 (2) HLR
416, it was held by the Karnataka High Court that the question as to where
the welfare of the minor lies should be answered after weighing and
balancing all factors germane to the decision-making, such as relationships,
claims and wishes of parents, risks, choices and all other relevant
circumstances and the answer lies in the balancing of these factors and
circumstances and determining what is best for the minor’s total well-being.
17. All the decisions relied upon lay down the law that the petition for
writ of habeas corpus would lie only in cases of illegal or wrongful
detention or custody. Undoubtedly, it would also lie in the case of demand
for custody of child provided it is illegally and unlawfully denied to the
parents or any one of them.
18. The pleadings and the materials placed on record prima facie
disclose that since November, 2002 Ella has been residing at Anjuna along
with the respondent without any sort of difficulty and with all the
facilities to the petitioner not only to visit Ella but even being allowed
to take the child for dinner or for shopping. It was only in the year 2004
the petitioner thought of taking Ella to Ireland for education. Apart from
mere allegation that proper education will be available at Ireland as
compared to the one which is being imparted at Goa, no factual data in that
regard is placed on record. The materials do not disclose any obstruction to
the petitioner from visiting Ella or even taking her for few days or during
holidays at the place of residence of the petitioner in Goa. The question of
permitting Ella to be taken to Ireland, without adjudicating upon the rival
contentions sought to be raised in the matter which essentially would
require analysis of the disputed questions of fact, would not be possible in
exercise of writ jurisdiction.
19. Perusal of the facts narrated in the petition coupled with the
statements of facts brought on record in-reply and revealed from the
documentary evidence on record, it is prima facie clear that there is
nothing to suggest that the child Ella is residing with her father on
account of some forcible act on the part of the respondent or that it was
even without the consent or knowledge of the petitioner. Even Ella’s joining
of school in Goa prima facie appears to be with the knowledge and tacit
consent of the petitioner. Prima facie it appears that certain circumstances
which created rift between the spouses have led for the controversy in the
matter and it being used not in the interest of the child but rather
ignoring her best interest. Taking into consideration various facts brought
on record and as they stand today, it would be difficult to accept the
contention of the petitioner that there is a case for disturbing the
residence of the child with the respondent. Besides, the educational year is
also from June to April of the succeeding year. We are already in the month
of March. At this stage, any change in the residential place of the child
would also disturb the educational process for the child. Taking into
consideration the decision of the Apex Court in Dr. Mrs. Veena Kapoor’s case
(supra) and further that the matter involves disputed questions of fact
which are required to be established by evidence, it would be in the
interest of the child to relegate the parties to normal civil proceedings
for the decision on the point of custody of the child, without disturbing
the prevailing situation.
20. We had interviewed the child in the chamber, firstly in the presence
of her parents and their Advocates and thereafter in their absence. The
child appears healthy and she seems to be happy to continue to reside with
her father and she enjoys all the necessary amenities, care and protection
from her father and at the same time she has lot of respect and love for
both the parents. It is also revealed from the interview that the mother i.e.,
the petitioner has been occasionally visiting the child at her residence at
Anjuna.
21. In the facts and circumstances of the case, there being no
satisfactory material placed before us to arrive at the conclusion of
illegal detention or unlawful custody of the child by the respondent in
respect of Ella and there being no sufficient material placed before us to
justify disturbance of the status quo, bearing in mind the best interest of
the child, it would be appropriate not to disturb the present situation in
relation to the minor child and, therefore, in our considered opinion,
leaving the parties to pursue civil remedy if they so desire, the petition
deserves to be dismissed and is accordingly dismissed, with no order as to
costs.
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