Jharkhand High Court
Shahnawaz Alam vs State Of Jharkhand Through … on 29 July, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Ambuj Nath
2025: JHHC:20818-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (Cr.) (DB) No. 691 of 2024
SHAHNAWAZ ALAM, age about 41 years, S/O Late Md. Manzoor Alam
Ansari, currently residing at 201 Qamar 8, Madinat Badr, Muhaisnah 1, Dubai,
United Arab Emirates, being the permanent resident of 321 Sanjibani,
Sunderban Phase 2, Iqra Colony, Mango, Jamshedpur 832110, P.O. and P.S.-
Mango, District: - East Singhbhum, through his Power of Attorney holder
namely Darukhshan Anjum, age about 39 years, D/O Late Md. Manzoor Alam
Ansari, resident of 325 Sanjibani, Sunderban Phase 2, Iqra Colony, Mango,
Jamshedpur 832110, P.O. and P.S.- Mango, District:- East Singhbhum.
--- --- Petitioner
Versus
1. State Of Jharkhand through Commissioner of Police, Jharkhand Police,
having its office at Jharkhand Police headquarter, Dhurwa, P.O. and P.S.-
Ranchi. Dhurwa, District-Ranchi
2. AABSHAR UMMUL KHAIR IMAM, age about 39 years, D/O Late
Mohammad Zafar Imam, currently residing at House No 1, Main Road,
Barinagar, Near Telco Masjid, Jamshedpur 831004, P.O. and P.S.- Telco,
District: - East Singhbhum.
3. FATMA WARIS ZAFAR, age about 75 years, W/O Late Mohammad Zafar
Imam, currently residing at House No 1, Main Road, Barinagar, Near Telco
Masjid, Jamshedpur 831004, P.O. and P.S.- Telco, District: - East
Singhbhum
4. WARIS SARWAR IMAM, age about 51 years, S/O Late Mohammad Zafar
Imam, currently residing at Principal, Al Kabir Polytechnic, Kabirnagar,
Kopali, via P.S. & P.O.- Mango, Jamshedpur 831012, being the permanent
resident of House No 1, Main Road, Barinagar, Near Telco Masjid,
Jamshedpur 831004, P.O. and P.S.- Telco, District: - East Singhbhum
--- --- Respondents
---
For the Petitioner: M/s Geeta Luthra, Sr. Advocate,
Amrita Sinha, Shweta Suman, Saurabh Raj, Advocates
For the Resp.-State: Mr. Lov Tiwary, A.C to A.A.G-V
For the Resp. No. 2: Dr. (Mr.) H. Waris, Advocate
Ms. Reshma Kumari, Advocate
---
Present
Hon'ble Mr. Justice Rongon Mukhopadhyay
Hon'ble Mr. Justice Ambuj Nath
---
Reserved on 01.07.2025 Pronounced on:29.07.2025
---
The writ petitioner Shahnawaz Alam has filed this writ application under
Article 226 of the Constitution of India seeking issuance of writ of Habeas
Corpus with a direction to the Respondent No. 2 – Aabshar Ummul Khair Imam
to restore the custody of his minor daughter to him and to facilitate her
repatriation to Dubai, United Arab Emirates, her ordinary and habitual place of
residence in light of the judgment dated 26.12.2024 passed by the competent
Dubai Court.
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2. The case of the writ petitioner is that he was married to the Respondent
No. 2 on 25.05.2016, according to the Muslim rites and customs in Jamshedpur,
India. After their marriage, they mutually agreed to establish their matrimonial
home at Dubai, where they are living since 12.06.2016. On 06.01.2019, the
petitioner and the Respondent No. 2 were blessed with a daughter, who
presently is about 5-6 years old. The petitioner had provided the Respondent
No. 2 and his daughter with luxurious life style and took care of all their needs.
The petitioner got his daughter enrolled in kindergarten at Uptown International
School, Mirdif, Dubai with academic sessions scheduled to commence on
28.08.2023. His minor daughter benefits significantly by virtue of being a
permanent resident of United Arab Emirates which includes high valued health
insurance with multi geographic coverage. She also has access to top tier
international school with choice of diverse curriculum. On 07.07.2023, the
petitioner along with the Respondent No. 2 and their minor daughter came to
Kolkata. It was mutually agreed that the Respondent No. 2 and their minor
daughter would stay in Jamshedpur for a brief period of about two months
during the summer vacation of the minor child. On 10.07.2023, the petitioner
returned to Dubai. A day prior to his return, the Respondent No. 2 disclosed her
unilateral decision out of her own volition not to return to Dubai, but to
continue to remain in Jamshedpur, India. On 05.08.2023, the petitioner came to
India intending to bring the Respondent No. 2 and their minor daughter back to
Dubai. He requested the Respondent No. 2 to return to Dubai as their
daughter’s school was scheduled to start on 28.08.2023. However, she refused
to do so. It is the further case of the petitioner that his minor daughter wants to
return to Dubai, but she has been wrongfully restrained by the Respondent No.
2. In view of the aforesaid circumstances, on 30.07.2024, the petitioner was
constrained to initiate legal proceedings before the competent court at Dubai
seeking both restitution of conjugal right and custody and return of his minor
daughter to her place of habitual residence i.e. at Dubai, United Arab Emirates.
3. The petitioner has also stated that both the Respondent No. 2 and their
minor daughter are UAE Golden Visa holders, conferring residency and
affirming their settled intention to reside in Dubai as their principal and
permanent domicile. According to the petitioner, the Respondent No. 2 was
gainfully employed as a Professor at Amity University, Dubai, while the writ
petitioner is a Senior Banking Professional working in National Bank of Dubai.
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4. The petitioner filed an application for restitution of his conjugal rights
and for custody of his daughter before Dubai Primary Court vide Case No.
2773 of 2024. The Respondent No. 2, appeared online to participate in the legal
proceeding. She has mentioned that the petitioner was having extra marital
affairs, that is the reason, she has withdrawn from the society of the petitioner
along with her daughter. From perusal of the judgement of Dubai Primary
Court, it appears that the Respondent No. 2, later did not take any steps to
contest the case and as such, at the instance of the petitioner, Dubai Primary
Court directed the Respondent No. 2 to submit to the authority of her husband
and to return with her minor daughter to United Arab Emirates at their marital
home located in Dubai, Al Moha Ilisha, Qamar Building, Apartment No. 2.
5. The Respondent No. 2 along with other Respondents appeared on notice
and has filed contesting show-cause. She has admitted her marriage with the
petitioner. She has also admitted that her daughter was born out of their
wedlock on 06.01.2019 in Dubai. According to her, she came to know in 2018
that the petitioner was having extra marital affairs. She decided to take divorce
from the petitioner, but the petitioner promised her to break all such extra
marital affairs and to live with her with full respect and dignity and promised
not to harm her. Unfortunately, the petitioner did not fulfill the above promise
and his behaviour never changed, rather it deteriorated from bad to worse. The
petitioner himself told the Respondent No. 2 that it will be better if she returns
to India and find a suitable job. The Respondent No. 2 along with her daughter
came to Kolkata from Dubai on 06.03.2023 and thereafter, came to Jamshedpur
on 07.07.2023 and is residing there since then. Due to mental, psychological
and physical torture meted out to her, she has severed all ties with the petitioner
and has decided not to resume their matrimonial relationship with him. She has
decided to settle in Jamshedpur.
The Respondent No. 2 has assailed the prayer for restoration of the
custody of the minor daughter to the petitioner on the ground that the judgment
of Dubai Primary Court was contrary to the Muslim Personal Law that gives
right of custody of minor female child to the mother till she attains the age of
puberty, as per section 352 of Mulla Principles of Mahomedan Law, 23rd
Edition. She has also taken recourse to section 17 of the Guardians and Wards
Act, 1890. According to her, the welfare of her minor daughter, who is
presently less than six years old, is well secured in her able and affectionate
custody and guardianship. It is further case of the Respondent No. 2 that she is
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now employed at N.I.T., Jamshedpur and has got her daughter admitted in Hill
Top School, Jamshedpur which is one of the best schools in Jamshedpur. She
has also stated that the petitioner at times wanted to make love with her while
their daughter was awake. He also inappropriately touched his daughter
including touching her private parts and had attempted to kiss her around her
lips. She has filed a complaint case before the POCSO Court at Jamshedpur.
However, the same was dismissed on technical grounds. Against the order of
dismissal of POCSO case, she has filed a Criminal Revision petition before this
Court which is still sub-judice. On these facts, it was prayed not to allow the
prayer of the petitioner and dismiss the writ application in the ends of justice.
6. Mrs. Geeta Luthra, learned senior counsel appearing on behalf of the
writ petitioner, submitted that the minor daughter of the petitioner was habitual
and ordinary resident of Dubai. Both the petitioner and the Respondent No. 2
along with their daughter resided continuously at their matrimonial home in
Dubai since 2016. The minor daughter was enrolled in school in Dubai. She has
attended Emirates British Nursery school, which is one of the best pre-
kindergarten schools in Dubai and thereafter admitted her to Up-town
International School, a premier institution in Dubai for the academic sessions
commencing from August 2023. It was submitted that both the parties had
wanted their child to be raised in Dubai, United Arab Emirates, keeping in view
the facility of education, social security, etc. It was further submitted that the
principles of comity of courts must be respected and the judgment of foreign
court where the child is an ordinary and habitual resident, must be given due
weightage. It was also pointed out that Dubai Primary Court had directed the
Respondent No. 2 to return with her minor daughter to their matrimonial home
in Dubai. It was also submitted that no material has been brought on the record
to show that the Respondent No. 2 was psychologically or physically harmed or
any harm will be caused to the minor child if she returns to Dubai. She has also
pointed out that the Respondent No. 2 never made allegations of domestic
violence or physical abuse against the petitioner. She has also never made any
allegation that the petitioner had inappropriately touched his minor daughter. It
was only after receiving intimation regarding the custody proceeding initiated
by the petitioner, the Respondent No. 2 filed a frivolous case which was
subsequently dismissed by the POCSO Court, Jamshedpur. The timing, nature
and outcome of this complaint clearly indicates that it was an afterthought and
a retaliatory measure lacking credibility and evidentiary basis. Attention was
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also drawn towards several photographs showing that the minor daughter of the
parties was very much attached to the petitioner. On these grounds, it was
prayed that in the light of the judgment of Dubai Court, the Respondent No. 2
be directed to handover the custody of her minor daughter to the writ petitioner.
7. Dr. Hasnain Waris, learned counsel appearing on behalf of the
Respondent No. 2, has challenged the maintainability of this application. It was
submitted that the child was in the custody of one of her natural guardians and
as such, it cannot be said that the Respondent No. 2 had illegally detained her.
He has assailed the judgement of Dubai Primary Court, Dubai in light of the
provisions of section 13(c) and 13(f) of the Code of Civil Procedure. It was
submitted that the Respondent No. 2 did not get sufficient opportunity to
contest the case in Dubai and the order was passed ex-parte, which is against
the principles of natural justice. It was also submitted that the Respondent No.
2 has graduated from I.I.T., Kharagpur and is working in N.I.T., Jamshedpur
and she can take good care of her child. She has got her daughter admitted in
Hill Top School, Jamshedpur which is one of the best schools in Jamshedpur. It
was also submitted that judgment of Dubai Primary Court was against the
provisions of Muslim Personal Law (Shariat) Application Act, 1937 which
provides that Muslim personal Law will be applicable in case of guardianship
of the minor female child. According to him, mother shall be natural guardian
of a female child till she attains the age of puberty. According to Dr. Waris,
direction of Dubai Primary Court directing the Respondent No. 2 to handover
the custody of her minor daughter was contrary to the law of India and as such,
was hit by section 13(c) of the Code of Civil Procedure. It was also submitted
that the claim of the petitioner was founded on breach of Muslim Personal Law
of India and as such, it was also violative of section 13(f) of Code of Civil
Procedure. Dr. Hasnain Waris, learned counsel has painstakingly pointed out
that the petitioner has an evil intention towards the child. It was imperative
upon the Respondent No. 2 to withdraw herself and her child from the company
of the petitioner, in view of her welfare and also considering the fact that no
physical harm is caused to her minor child. It was also submitted that the
Respondent No. 2 is taking good care of her child and as such, it cannot be said
that the child is not being given proper attention and the welfare of the child
will be met only if her custody is handed over to the writ petitioner.
8. Mrs. Geeta Luthra, learned senior counsel appearing on behalf of the
writ petitioner, in reply, has submitted that the conflict between the Indian and
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Dubai Laws is both irrelevant and legally untenable. According to her, United
Arab Emirates including Dubai applies a hybrid system of sharia law and civil
law principles which are comparable in structure and substance to the Indian
legal system in matters of custody and guardianship. It was also submitted that
it is very easy to make sexual innuendos against the father in case of custodial
legal battle and unless there are cogent materials to prove the same, the court
cannot come to the conclusion that the petitioner was having evil intention
against her daughter.
Reliance has been placed mainly upon the decision rendered in the case
of Yashita Sahu versus State of Rajasthan and others reported in [(2020) 3
SCC 67; Suhara versus Muhammed Jaleel reported in [2019 SCC OnLine
Ker 1237; Abdul Kalam versus Akhtari Bibi reported in [1987 SCC OnLine
Ori 42] and in the case of Rafiq versus Smt. Bashiran [1962 SCC OnLine
Raj 40[.
9. It appears that the State has also been made party in this case. The State
of Jharkhand has filed counter affidavit and stated that it will be in the interest
of welfare of the minor child that she may be permitted to remain in the custody
of her mother. It was also submitted that the child was in the custody of one of
her natural guardians and as such, it cannot be said that the Respondent No. 2
was illegally detaining her child. It was further submitted that though it is
settled principle of law that in case of child custody matters, writ of habeas
corpus is maintainable, but the court should not take a pedantic view. It was
submitted that parties right cannot be allowed to override child’s welfare and
the High court has the discretion not to exercise writ jurisdiction depending
upon the facts of the case. Reliance has been placed upon the decision of the
Hon’ble Apex Court rendered in the case of Somprabha Rana and others
versus State of Madhya Pradesh and others reported in [(2024) 7 supreme
81].
10. In view of the pleadings of the parties and submissions made above, the
following issues arise for consideration of this court.
i. Whether a Writ of Habeas Corpus will lie in the present case where a minor
child is in the custody of her mother?
ii. Whether the decision of Dubai Court is hit by the provisions of Section 13 of
Code of Civil Procedure?
iii. Considering the age of the minor child vis-à-vis her welfare, what will be in
best interest of the child?
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iv. Whether the superior financial capacity of the father vis-à-vis that of the
mother can be the sole factor for handing over the custody of the child to the
writ petitioner?
11. For the sake of the brevity and for just and final decision of this case,
and also to avoid repetition of facts and law, this writ application will be
discussed issue wise.
(i) Whether this writ application is maintainable in its present form
where the minor child is in the custody of her mother?
12. Mrs. Geeta Luthera, learned senior counsel appearing on behalf of the
writ petitioner, has relied upon the ratio laid down by the Hon’ble Supreme
Court in the case of Yashita Sahu versus State of Rajasthan and others
reported in [(2020) 3 SCC 67], wherein the Hon’ble Supreme Court at para-10
held as under:
“Whether a writ of habeas corpus is maintainable?
10. It is too late in the day to urge that a writ of habeas corpus is
not maintainable if the child is in the custody of another parent.
The law in this regard has developed a lot over a period of time but
now it is a settled position that the court can invoke its
extraordinary writ jurisdiction for the best interest of the child. This
has been done in Elizabeth Dinshaw v. Arvand M. Dinshaw, Nithya
Anand Raghavan v. State (NCT of Delhi) and Lahari Sakhamuri v.
Sobhan Kodali among others. In all these cases, the writ petitions
were entertained. Therefore, we reject the contention of the
appellant wife that the writ petition before the High Court of
Rajasthan was not maintainable.
13. The Hon’ble Supreme Court in the case of Dhanwanti Joshi versus
Madhav Unde reported in [(1998) 1 SCC 112] at para-32 and 33 has discussed
the provisions of Hague Convention of 1980 “Civil Aspects of International
Child Abduction” and has held as under:
“32. In this connection, it is necessary to refer to the Hague
Convention of 1980 on “Civil Aspects of International Child
Abduction”. As of today, about 45 countries are parties to this
Convention. India is not yet a signatory. Under the Convention,
any child below 16 years who had been “wrongfully” removed or
retained in another contracting State, could be returned back to the
country from which the child had been removed, by application to
a central authority. Under Article 16 of the Convention, if in the
process, the issue goes before a court, the Convention prohibits the
court from going into the merits of the welfare of the child. Article
12 requires the child to be sent back, but if a period of more than
one year has lapsed from the date of removal to the date of
commencement of the proceedings before the court, the child
would still be returned unless it is demonstrated that the child is
now settled in its new environment. Article 12 is subject to Article
13 and a return could be refused if it would expose the child to
physical or psychological harm or otherwise place the child in an
intolerable position or if the child is quite mature and objects to its7
return. In England, these aspects are covered by the Child
Abduction and Custody Act, 1985.
33. So far as non-Convention countries are concerned, or where the
removal related to a period before adopting the Convention, the
law is that the court in the country to which the child is removed
will consider the question on merits bearing the welfare of the
child as of paramount importance and consider the order of the
foreign court as only a factor to be taken into consideration as
stated in McKee v. McKee unless the Court thinks it fit to exercise
summary jurisdiction in the interests of the child and its prompt
return is for its welfare, as explained in L., Re. As recently as 1996-
1997, it has been held in P (A minor) (Child Abduction: Non-
Convention Country), Re: by Ward, L.J. [1996 Current Law Year
Book, pp. 165-166] that in deciding whether to order the return of
a child who has been abducted from his or her country of habitual
residence — which was not a party to the Hague Convention,
1980, — the courts’ overriding consideration must be the child’s
welfare. There is no need for the Judge to attempt to apply the
provisions of Article 13 of the Convention by ordering the child’s
return unless a grave risk of harm was established. See also A (A
minor) (Abduction: Non-Convention Country) [Re, The Times 3-7-
97 by Ward, L.J. (CA) (quoted in Current Law, August 1997, p.
13]. This answers the contention relating to removal of the child
from USA.”
14. Hague Convention of 1980 “Civil Aspects of International Child
Abduction” is a multilateral treaty that provides an expeditious method to
return a child who was wrongfully taken by one of the parents from one country
to another. In order to apply the methods of convention, both countries from
where: –
(i) the child was removed and
(ii) the Child has been brought to, must be the contracting state i.e. both must
have adopted the convention.
The aims and objects of the Convention has been set out in Article-1
which provides that to secure the prompt return of the children wrongfully
removed or to retain in contracting State and to ensure that the rights of custody
and of access under law of contracting State are effectively respected in other
country State. This contention seeks to protect the best interest of the child.
15. As far as Hague Convention of 1980 on Civil Aspects of International
Child Abduction is concerned, India is not the signatory. Therefore, as per the
law, the Court in the country to which the child is removed will consider the
question on merits bearing the welfare of the child as of paramount importance
and consider the judgment of the foreign court as one of the factors to be taken
into consideration.
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16. Though this writ application is maintainable but this court will also
examine the welfare of the child as a factor to be taken into consideration in
order to come to the final conclusion.
17. Issues no. ii, iii, and iv: – All these issues are inter related to the same
questions of facts and law, as such they are being discussed together.
18. Dr. H. Waris, learned counsel appearing for the Respondent No. 2, has
assailed the decision of Dubai Primary Court on the ground that the judgment
of Dubai Primary Court was contrary to the Muslim Personal Law that gives
right of custody of a minor female child to the mother, who is the primary care
provider till she attains the age of puberty. It was also submitted that in light of
the provisions of Muslim Personal Law (Shariat) Application Act, 1937,
Muslim Personal Law will be applicable in the case of guardianship of a minor
female child. Reliance has been placed upon the provisions of section 2 of
Muslim Personal Law (Shariat) Application Act, 1937, which reads as under:
“2. Application of personal law to Muslims.–Notwithstanding
any custom or usage to the contrary, in all questions regarding
intestate succession, special property of females including personal
property inherited or obtained under contract or gift or any other
provision of personal laws, marriage, dissolution of marriage,
including talaq, ila, zihar, lian, khula and mubaraat, maintenance,
dower, guardianship, gifts, trusts and trust properties and wakfs
(other than charities and charitable institutions and charitable and
religious endowments), the rules of decision in cases where the
parties are Muslims, shall be the Muslim Personal Law (Shariat).”
It is evident that the aforesaid provision provides that in case of dispute
relating to guardianship of a minor Muslim girl where the parties are Muslim,
provisions of Muslim Personal Law (Shariat) Application Act, 1937 shall be the
sole factor for deciding the dispute of guardianship.
Section 352 of Mulla Principles of Mahomedan Law, 23 rd Edition reads
as under:
“352: Right of mother to custody of infant children- The mother
is entitled to the custody (hizanat) of her male child until he has
completed the age of seven years and of her female child until she
has attained puberty. The right continues though she is divorced by
the father of the child, unless she marries a second husband in
which case the custody belongs to the father.”
18. So according to the Muslim Personal Law, mother of the female child
shall be entitled to her custody till she attains the age of puberty, unless she
marries a second husband, in which case, the custody belongs to the father.
However, this provision shall be read along with the provisions of section 17 of
the Guardians and Wards Act, 1890 which reads as under:
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“17. Matters to be considered by the Court in appointing
guardian. — (1) In appointing or declaring the guardian of a
minor, the Court shall, subject to the provisions of this section, be
guided by what, consistently with the law to which the minor is
subject, appears in the circumstances to be for the welfare of the
minor.
(2) In considering what will be for the welfare of the minor, the
Court shall have regard to the age, sex and religion of the minor,
the character and capacity of the proposed guardian and his
nearness of kin to the minor, the wishes, if any, of a deceased
parent, and any existing or previous relations of the proposed
guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the
Court may consider that preference.
(4) [* * * * *]
(5) The Court shall not appoint or declare any person to be a
guardian against his will.”
Section 17 of the Guardians and Wards Act, 1890 clearly depicts that
while declaring the guardianship of a minor, the court shall be guided by the
law to which the minor is subject and also taking into consideration the age, sex
and religion of the minor, character and capacity of the proposed guardian and
his nearness to the minor and if the minor is old enough to form an intelligent
preference, the court may consider that preference.
The parties are practicing Muslims and as such Muslim personal law will
be applicable to them
19. It is the case of the parties that the minor child was born on 06.01.2019.
Thus, as of today, she is aged about six and half years. She is residing at
Jamshedpur with her mother since last two years. That is to say, that she is
residing at Jamshedpur since she was four and half years old. This being the
case, she probably requires her mother more than her father. This is one of the
important factor to be taken into consideration while deciding this writ
application.
It was submitted by Mrs. Geeta Luthera, learned senior counsel
appearing on behalf of the writ petitioner, that the writ petitioner has superior
financial capacity. He also got his daughter admitted in kindergarten at Uptown
International School, Mirdif, Dubai. She has also submitted that the minor child
has better access to the top tier international school, choice of diverse
curriculum, high valued health insurance with multi geographic coverage.
It is the case of the Respondent No. 2 that she has obtained B. Tech
Degree from I.I.T., Kharagpur and presently employed in N.I.T, Jamshedpur.
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She has got the minor child admitted in Hill Top School, Jamshedpur which is
one of the best schools of the city.
20. The Hon’ble Supreme Court in the case of Dhanwanti Joshi (Supra),
while relying upon the judgment of Satya versus Teja Singh reported in
[(1975) 1 SCC 190], has held that the superior financial capacity of the
husband cannot be the sole ground for disturbing the child from his mother’s
custody. When the child, while in mother’s custody was getting education and
was doing well in his studies, the proposal of an immediate American education
which the father was prepared to finance cannot be a sufficient ground for
shifting the child to the father’s custody, ignoring the fact that for the last more
than 12 years, the child had been in the mother’s custody.
21. From the aforesaid facts, it is evident that though, the petitioner has
better financial capacity and the minor shall be provided with better health care
and better education at Dubai, but the fact that the Respondent No. 2 is also
financially very sound and she is providing quality education to, cannot be lost
sight of.
22. Dubai Primary Court vide its judgment had directed the Respondent No.
2 to return with her child to the company of the writ petitioner so that her
custody is restored to the writ petitioner.
23. Dr. H. Waris, learned counsel appearing on behalf of the Respondent No.
2, has also assailed the judgment of Dubai Primary Court, Dubai on the ground
that the judgment was passed ex-parte and was against the principle of Indian
Law.
Section 13 of Code of Civil Procedure provides as under:
“13. When foreign judgment not conclusive– A foreign
judgment shall be conclusive as to any matter thereby directly
adjudicated upon between the same parties or between parties
under whom they or any of them claim litigating under the same
title except–
(a) where it has not been pronounced by a Court of competent
jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded
on an incorrect view of international law or a refusal to recognise
the law of [India] in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are
opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in
force in India.”
24. Section 13 (c) and (f) of the Code of Civil Procedure provides that the
foreign judgment shall be conclusive as to any matter directly adjudicated upon
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between the same parties, except where it appears on the face of the
proceedings to be founded on incorrect view of international law or a refusal to
recognize the law of India in cases in which such law is applicable.
We have discussed the provisions of Muslim Personal Law along with the
provisions of section 17 of the Guardians and Wards Act, 1890. The Muslim
Personal (Shariat) Application Act, 1937 specifically provides that the mother
of a female child shall be entitled to (His / Her) custody till she attains the age
of puberty, unless the mother marries again, in that case, the custody belongs to
the father. This provision has to be construed, considering the fact relating to
the age and welfare of the minor. This fact has to be taken into consideration
while considering the age, sex and welfare of the minor child namely.
As discussed above, the Muslim Personal Law provides that the mother
shall have the custody of a minor female child till she attains the age of
puberty and till the time she does not remarry. We have also discussed that the
welfare of the child in light of section 17 of Guardians and Wards Act, 1890
also lies in the company of the Respondent No. 2, her mother and as such, the
judgment of Dubai Primary Court cannot be said to be conclusive and is
barred by the provisions of section 13(c) and 13(f) of the Code of Civil
Procedure.
This court had directed the Respondent No. 2 to remain physically
present during course of hearing on one date to explore the possibility of
conciliation between the parties. The Respondent No. 2 had appeared and has
categorically stated that the writ petitioner used to torture her and her daughter,
due to which, she was forced to leave his company and come to India.
The Respondent No. 2 has made out a case that the writ petitioner used
to touch the private parts of her minor daughter and used to kiss her on lips.
However, this fact was not stated by her when she had appeared online before
Dubai Primary Court and thus, this assertion will not have any bearing on the
merit of the case.
25. Mrs. Geeta Luthera, learned senior counsel appearing on behalf of the
writ petitioner, has also taken a plea that restoration of the minor child to the
custody of one of the parents to the place where she was habitually residing is
not against the public policy.
According to her, though India is not the signatory to the Hague
Convention of 1980 “Civil Aspects of International Child Abduction”, the
Law Commission of India in its Report No. 218 of March 2009 has
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recommended that India should keep pace and change according to the
changing needs of the society. On the basis of this fact, it recommended that
the Government may consider that India should become a signatory to the
Hague Convention which will in turn bring the prospects of achieving the
return to India of children who have their homes in India.
This report of the Law Commission has not been acted upon and India
has still not signed the treaty.
26. Learned lawyer appearing on behalf of the Respondent No, 2 submitted
that India has not ratified the Hague Convention, despite of the
recommendation by Law Commission. According to him, there are very few
cases, where one of the parents had taken the child outside India. It was
submitted that the majority of women fleeing to India had abusive and violent
homes and as such, return of a mother with her child from abroad while
leaving the society of her husband cannot be termed as an abduction, rather it
was flight to safety.
As India has not ratified or signed the Hague Treaty on Child
Abduction, it cannot be said that it is the public policy of India to enforce the
judgment of a foreign court in custody matters, without considering the
welfare of the child.
27. As already discussed above, the minor was aged four years when she
came to India with the Respondent No. 2 who is the primary care provider.
She has lived with the Respondent No. 2 for about two years. She has settled
in her new environment. Accordingly, we come to a finding that the
Respondent No. 2, the primary care provider, who is the mother of the
female child, as per Muslim Personal Law, is entitled to her custody. She is
financially well placed, being a teaching faculty at N.I.T. Jamshedpur and is
providing quality education to the minor child. The welfare of the child who
is aged about six and half years and is residing with the Respondent No. 2
since last two years, lies in the company of her mother. If the minor is
directed to be handed over to the petitioner, it will have a calamitous effect
on her mental health. Her welfare lies in the care and protection of her
mother, who is the primary care provider. The judgment of the primary court
Dubai is not in consonance with the provisions of the section 13 (c) and (f)
of C.P.C. As such, it will be in the best interest of the minor, if she is allowed
to remain with the Respondent No. 2 who is the primary care provider.
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28. In view of the discussions made above, we are not inclined to direct
the Respondent No. 2 to handover the custody of the minor child to the
petitioner for her repatriation to Dubai which was her ordinary and habitual
place of residence, in light of the judgment dated 26.12.2024 passed by the
competent Dubai Court. This criminal writ application is dismissed.
Pending I.A., if any, stands disposed of.
(Rongon Mukhopadhyay, J)
(Ambuj Nath, J)
Ranjeet/ N.A.F.R
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