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Saihba Ali v. State Of Maharashtra And Others

Supreme Court Of India

Jul 24, 2003

Judgment

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Factual and Procedural Background

The petitioner—natural mother of two minor children—invoked Article 32 of the Constitution seeking a writ of habeas corpus to compel Respondents 2 and 4 to produce the children, deliver their custody to her, and hand over their passports. Her husband is serving a prison sentence in the United States of America, and she holds a U.S. court order awarding her custody. Nevertheless, a Family Court at Nagpur had earlier granted permanent custody to Respondent 4 (the children’s paternal grandmother). The petitioner appealed that order to the Bombay High Court (Nagpur Bench) but subsequently withdrew the appeal, allowing the Family Court order to attain finality. She now attempts to regain custody by way of the present writ petition before the Supreme Court.

Legal Issues Presented

Whether the existing custody of the minor children with Respondent 4, pursuant to the Nagpur Family Court’s order, is “illegal,” thereby warranting issuance of a writ of habeas corpus by the Supreme Court.
If habeas corpus is declined, whether the Supreme Court should nonetheless modify or supplement the visitation arrangements in the best interests of the children.

Arguments of the Parties

Petitioner’s Arguments

As natural mother and de facto guardian, and holder of a U.S. custody order, she is entitled to immediate custody.
Her advanced education (post-graduate degree in English Literature) and training in Child Psychology make her better equipped for the children’s welfare.
She currently resides in Nagpur with supportive family members, including a brother who manages a school, ensuring a suitable environment.
Respondent 4 is over 80 years old and purportedly lacks adequate assistance to care for the minors.
Pending further legal steps to set aside or modify the Family Court decree, interim custody should be given to her.

Respondent 4’s Arguments

The Family Court’s custody order in her favour is final; the petitioner withdrew her appeal, so the custody cannot be termed illegal.
The Family Court duly considered and rejected the U.S. order as lacking jurisdiction and as not constituting a foreign decree recognizable under Section 13 of the Code of Civil Procedure.
The children have remained with her since the Family Court ruling without any complaint about their welfare.
The petitioner has remarried and has another child; she should not obtain interim custody through a habeas corpus petition.
The 15 September 1998 consent order already grants the mother ample visitation rights; no further orders are necessary.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Supreme Court agreed with Respondent 4 that custody granted by the competent Nagpur Family Court cannot be characterized as illegal. Until that decree is set aside through proper legal channels, a writ of habeas corpus is unavailable. Nonetheless, to “do complete justice” under Article 142, the Court considered the passage of time since the 15 September 1998 consent order and the children’s growth, deeming it appropriate to revise visitation arrangements. While respecting the Family Court’s primary jurisdiction, the Court crafted an interim visitation schedule that:

Allows the petitioner daily weekday access from 4:30 p.m. to 7:30 p.m.
Permits weekend access on Saturdays and Sundays from 12 noon to 7 p.m.
Places responsibility for the children’s tutoring with the petitioner during visitation hours and eliminates additional evening tuitions.
Provides for academic progress assessments after the November 2003 examinations.

The Court retained the petitioner’s passport with the Family Court and warned that deliberate or wilful disobedience could lead to revocation of the interim order. Both parties were granted liberty to seek modifications from the Family Court, which is free to issue further orders uninfluenced by the Supreme Court’s interim arrangement.

Holding and Implications

The writ petition was DISPOSED OF. The Supreme Court declined to issue habeas corpus because custody with Respondent 4 rests on an unchallenged Family Court decree. However, exercising its equitable powers, the Court issued an interim order enhancing the petitioner’s visitation rights until the Family Court decides otherwise. The decision preserves the authority of the Family Court to make final custody determinations and sets no new precedent, affecting only the immediate parties.

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Order

1. In this petition under Article 32 of the Constitution of India, the petitioner primarily seeks a writ in the nature of habeas corpus directing Respondents 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 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.

2. Respondent 4 who is the paternal grandmother 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 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 CPC.

3. We have heard the arguments of the learned counsel for the parties and are in agreement with the submissions made on behalf of Respondent 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.

4. 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 postgraduate 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 ever since 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.

5. 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 are 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.

6. 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 the learned counsel for Respondent 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 the 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 weekday 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 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 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 the 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 the petitioner's tuition on the children's education.

7. 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.

8. Any deliberate or wilful disobedience of the letter and spirit of this order would entail this order being revoked even by the Family Court.

9. 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.

10. 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.

11. Parties are at liberty to make such application as they think appropriate before the Family Court.

12. The writ petition is disposed of in the above terms.