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Ruchika Abbi Petitioner v. State Of National Capital Territory Of Delhi And Anr. S

Delhi High Court

Nov 7, 2014

Judgment

CaseIQ

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Factual and Procedural Background

The petitioner sought production of her minor daughter, Roshni, and a direction that the contesting respondent produce Roshni's passport so the child could be handed over to the petitioner. The petitioner additionally sought a direction that the minor be permitted to travel to Virginia, USA, in accordance with directions of a Virginia court dated 12.08.2014.

On 05.09.2014 this Court ordered temporary custody of Roshni to be handed over to the petitioner, subject to conditions: respondents were given time to file counter-affidavits; respondent No. 2 (the father) would be entitled to meet the child once every two days for 1–2 hours; the child was not to be taken outside Delhi or India without the Court's permission; and the child's school attendance was not to be hindered. The matter was listed before the Roster Bench on 15.10.2014.

Thereafter the second respondent (the petitioner's husband) sought modification of the 05.09.2014 order via Crl.M.A. 14048/2014; that application was dismissed as withdrawn. Another application by the petitioner, Crl.M.A. 14049/2014, was permitted to be withdrawn. As a result, the order of 05.09.2014 stands and custody of the minor currently rests with the petitioner.

Custody and guardianship proceedings are pending before the Family Court as G.P.115/2014 (Family Court, Tis Hazari Courts).

Opinion authored by S. Ravindra Bhat, J.

Legal Issues Presented

Whether the Court should order production of the minor daughter Roshni and direct the respondent to hand over Roshni's passport to enable transfer of custody to the petitioner.
Whether the Court should give effect to the Virginia court's directions dated 12.08.2014 permitting the child to go to Virginia, USA.
Whether the earlier order dated 05.09.2014 (awarding temporary custody to the petitioner) should be vacated or modified.
Whether habeas corpus proceedings are appropriate in light of pending custody and guardianship proceedings (G.P.115/2014) before the Family Court.

Arguments of the Parties

Petitioner's Arguments

The petitioner relied on the Virginia Court's direction dated 12.08.2014 that custody of Roshni ought to be handed over to her and asked this Court to give that order appropriate weight and ensure custody is vested in the petitioner.
The petitioner contended that the prior arrangement recorded on 15.10.2014 (reflecting certain agreed withdrawals of proceedings) was no longer workable and should not prevent enforcement of custody in her favour.

Respondents' Arguments

Counsel for the respondents contended that respondent's custody of Roshni is lawful and asked that the 05.09.2014 order be vacated.
It was submitted that custody and guardianship proceedings are pending before the Family Court (G.P.115/2014), and therefore habeas corpus is not an appropriate forum; the competent Family Court should be left free to decide the matter on merits without being influenced by this Court's observations.
Counsel contested the petitioner's submission that earlier agreed arrangements had been frustrated by the second respondent.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court noted that custody of Roshni had been handed to the petitioner pursuant to this Court's order dated 05.09.2014. Given that guardianship and custody proceedings have since been initiated before the Family Court (G.P.115/2014), the Court characterised the existing custody arrangement under its order as a temporary arrangement.

The Court held that the temporary arrangement should continue until the Family Court Judge in G.P.115/2014 either modifies it by an interim application moved by either party or disposes of the main proceedings finally. The Court expressly clarified that observations in any prior order or in the present order are not to be construed as expressions on the merits of the underlying dispute. The parties' rights to urge whatever pleas are available in law before the competent court were preserved.

Holding and Implications

DISPOSED OF

Holding (direct): The writ petition is disposed of on the terms recorded by the Court — namely, that the temporary custody arrangement (custody presently with the petitioner pursuant to the 05.09.2014 order) is to continue until the Family Court in G.P.115/2014 modifies or finally disposes of the custody/guardianship proceedings.

Implications:

Direct effect: Custody of the minor Roshni remains with the petitioner on a temporary basis under this Court's order until the Family Court passes interim or final orders in G.P.115/2014.
The observations in this and earlier orders are not to be treated as determinations on the merits; the parties retain the right to press all legal pleas and contentions in the Family Court.
The opinion does not discuss any broader legal precedent or announce a new legal principle; it confines its decision to the interim custodial arrangement and preservation of parties' substantive rights.

Show all summary ...

1. The petitioner has sought for production of her minor daughter Roshni and a further direction to the contesting respondent to produce her passport which was to be handed over to her. The petitioner further seeks a direction that the minor daughter ought to be permitted to go to Virginia, USA in accordance with the directions of the Court at Virginia, dated 12.08.2014

2. This Court had on 5.9.2014 made the following order with regard to the custody of the minor daughter Roshni:-

“Counter affidavits/replies have not been filed by the respondents. The learned counsel for the respondents seek some more time to file his counter affidavit. Let the same be filed within a period of four weeks with an advance copy to the learned counsel for the petitioner. The latter may file a rejoinder thereto within a period of two weeks' thereafter, if so instructed.

We have been informed by the learned counsel for the petitioner that the custody of the petitioner's minor daughter is with respondent No. 2 from 15.04.2014 That as a natural mother she has been deprived of all access to the said child, who is aged about 6 years; that the child has been brought to India by the father-respondent No. 2 without the mother's “consent. We are of the view that the girl child of such tender age needs “the constant care and affection of her mother. She cannot be deprived of” her natural right to maternal affection and vice-verse. It would be in “the child's interest that the mother have immediate access to and care” over her. Therefore, pending consideration of the present writ petition, “we direct respondent No. 2 to handover the temporary custody of the child” to the petitioner today itself. However, during this period of the “custody, respondent No. 2 shall be entitled to meet the child at least” once in two days for about 1-2 hours. We are informed that the child's “parents reside in the same neighbourhood.”

We also direct that the child shall not be taken outside Delhi or “outside the country without permission of the Court. We further direct” that the child's attendance to school shall not hindered by either of her “parents.”

“List this matter before the Roster Bench on 15.10.2014

Dasti.””

3. The second respondent - petitioner's husband had sought for modification of that order vide Crl.M.A 14048/2014. The application was dismissed as withdrawn. Likewise another application preferred by the petitioner for direction - Crl.M.A 14049/2014 was also permitted to be withdrawn. In the light of these directions, the order of 5.9.2014 stands and currently the custody of the minor daughter Roshni is with the petitioner wife.

4. It is contended on behalf of the petitioner that having regard to the order of the concerned Competent Court which directed - on 12.8.2014, that the custody of Roshni ought to be handed over to the petitioner, this court should give that order appropriate weight and ensure that custody is vested in her. It is also contended that the previous order of the Court - dated 15.10.2014, recording some kind of arrangement in terms of which parties had initially agreed to withdraw certain proceedings initiated by the each party, is no longer workable.

5. Counsel for the respondents resisted the proceedings and contended that the respondent's custody of minor Roshni is lawful and that the Court should vacate the order dated 5.9.2014 It is also submitted that now that the custody and guardianship proceedings are pending before the proper Court being G.P.115/2014 (before the Family Court, Tis Hazari Courts), habeas corpus would not be appropriate proceedings, and that the competent Court should be left free to consider and make the suitable orders on the merits of the dispute uninfluenced by the observations of this Court. Learned counsel seriously contested the submissions of the petitioner that the arrangements which had been agreed to were sought to be throttled by the second respondent.

6. It is apparent from the above discussion that the custody of minor daughter Roshni was handed over pursuant to the order of this Court on 5.9.2014 In the light of guardianship and custody proceedings now having been initiated, such custody - under orders of this Court - can at best to be viewed as a temporary arrangement. This temporary arrangement is directed to continue till such time the Family Court Judge in G.P 115/2014 modifies it, either appropriately in an interim application moved on behalf of either of the parties, or finally as the case may be, while disposing of the main proceedings. It is also clarified that the observations made in any previous order or the present order of this Court shall not be construed as an expression on the merits of the case, and the rights and contentions of the parties to urge whatever pleas are available in law, is preserved.

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

8. S. Ravindra Bhat, J