Aleyamma Kuruvilla vs Pennamma Thomas and Another

M. Jagannadha Rao, C.J.—This is a Habeas Corpus Application filed under Article 226 of the Constitution of India by the mother of three children. The Petitioner, who is the mother, is a citizen of the United States of America with effect from 24th June 1987. All the three children wene born in America, and they are having American passports. The children were brought to India in very peculiar circumstances.

In America, there were certain differences between the Petitioner, and her husband, who is also an Indian from Kerala. During the course of these differences, the husband filed a case against his wife, the Petitioner in this O.P., that she tried to poison him and the children. A criminal case was filed against the Petitioner. But the Petitioner was discharged as per Ext. P-4 order of the American Court dated 25th February 1987. It was during the period before the discharge of the Petitioner that the husband brought the children to India on 7th September 1985.

Subsequently, there was an order, Ext. P-5 dated 9th July 1987 by the Supreme Court of the State of New York. In that order (page 53 of the paper book) the Supreme Court held that matrimonial issue between the parties has to be referred to a Family Court, but that in the meantime, it was inappropriate for the husband to remove the children from the jurisdiction without affording the mother the due process rights afforded to her under the law of the State of New York. Accordingly, the husband was ordered under penalty of either criminal or civil contempt to forthwith take immediate steps to have the aforesaid three children returned to the court jurisdiction. The husband was also ordered to deliver forthwith to the clerk of that Court his passport. The court further ordered pursuant to Section 651 of the Family Court Act that the matter be referred to the Family Court of the City of New York. The Court felt that it would be for the Family Court to appoint a law guardian to represent the interests of these three children.

Subsequently, Ext. P-6 order was passed by the New York State Supreme Court on 5th July 1988. That was a divorce case filed by the petitioner against her husband seeking absolute divorce by reason of alleged cruel and inhuman treatment towards the Petitioner by her husband. The court, while granting divorce in favour of the Petitioner, passed an order regarding the custody of the children. The custody was granted to the mother (Petitioner herein). The order reads as follows:

Adjudged that the marriage between Plaintiff Aleyamma Thomas and Defendant Samual Thomas is dissolved by reason of the cruel and inhuman treatment of the Plaintiff by the Defendant.

Adjudged that Plaintiff, Aleyamma Thomas, shall have exclusive custody of the children of the marriage specifically: Benjamin born July 26, 1978, Blessy born August 28, 1980 and Justus born May 19, 1983; and it is further ordered and adjudged that;

Thereafter there was a criminal case filed against the husband for conspiracy of second degree and attempted murder of his wife, the Petitioner. Upon the confession of the husband on 6th December 1989, the husband was sentenced to a maximum of nine years and a minimum of three years in State Prison. The husband is undergoing the said sentence.

It is at that juncture that the present Habeas Corpus Petition is filed in this Court on 20th March 1992. Notice was ordered, and some time was taken to serve notice on the Respondents. The first Respondent in the S.P. is the mother-in-law of the Petitioner. The children who had been brought to India as stated earlier in 1985 have been staying with the first Respondent, who is their paternal grand-mother. She is staying in Mylapra Town in Pathanamthitta Taluk. The children have been put in a residentiial school known as Mount Zion English Medium School, Kadammanitta. The eldest of the children, who is a boy, is studying in the 10th standard, the next issue, the daughter is studying in 8th standard and the third child a son is studying in the 5th standard. The second Respondent in the O.P. is the husband of the Petitioner, who is in U.S.A. in prison, and he has been served. The first Respondent, namely, the mother-in-law of the Petitioner, is represented by counsel, and the second Respondent, even though served, does not appear through counsel and did not file any reply statement. Therefore we set him ex parte and decide the case.

The question before us is as to the custody of the three children above mentioned. Admittedly, the Petitioner, who is their mother, has an order for their custody from the Supreme Court of the State of New York in Ext. P-6 dated 5th July 1988. If we have to act upon the said order for custody, as ordered by the American Court, there can be no denial of the mother''s right to have custody of the children,-subject of course to this Court considering the matter in the light of Article 226 of the Constitution of India. The Supreme Court had occasion in at least three cases in Smt. Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and Another, , and Elizabafh Dinshaw v. Arvand M. Dinshaw AIR 1987 S.C. 3 and Chandrakala Menon (Mrs) and Another Vs. Vipin Menon (Capt.) and Another, to deal with situations wherein one of the parties has an order from a foreign court for custody of the children. The Supreme Court felt that the courts in India should try to see that the orders of the foreign court are complied with.

Learned Counsel for the first Respondent, however, raised a question that the order of custody is not admissible in evidence in view of Section 86 of the Indian Evidence Act. Section 86 reads as follows:

Presumption as to certified copies of foreign judicial records. The Court may presume that any documents purporting to be a certified copy of any judicial record of any country not forming part of India or of Her Majesty''s Dominion is genuine and accurate, if the documents purport to be certified in any manner which is certified by any representative of the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records.

An Officer who with respect to any territory or place not forming part of India or Her Majesty''s dominions, is a political agent therefor, as defined in Section 3, Clause (43) of the General Clauses Act, 1897, shall for the purposes of this section, be deemed to be a representative of the Central Government in and for the country comprising that territory or place.

It is contended that the order does not contain the certificate of the Indian Consulate in U.S.A. as required by Section 86 of the Indian Evidence Act. Learned Counsel also points out that in a similar matter in Y. Narasimha Rao and Others Vs. Y. Venkata Lakshmi and Another, , the Supreme. Court treated the orders of a foreign court as inadmissible.

It is true that in the above said decision of the Supreme Court, the relevant orders of the American Court were considered inadmissible for want of certificate of the Indian Consulate as required u/s 86 of the Indian Evidence Act.

In order to get over the above said difficulty, the Petitioner has now filed fax copy of Ext. P-6 duly attested by the Indian Consulate, New York, along with a copy of proceedings directed against the second Respondent. This is filed into this Court on 8th July 1993. The fax copy does show that the certificate as required by Section 86 of the Indian Evidence Act is put upon the order of the American Court produced before the Consulate. Learned Counsel for the first Respondent has raised an objection that what is now filed in this Court is a fax copy i.e., a document which is only a photocopy of the certificate issued by the Indian Consulate, and is again inadmissible.

In our view, this contention of the learned Counsel for the first Respondent cannot be accepted in view of the principle laid down in the very same decision in Y. Narasimha Rao and Others Vs. Y. Venkata Lakshmi and Another, . In that case, the Supreme Court referred to Section 86 as also Sections 63(1) and (2), 65(e) and (f) and 74(1)(iii) and 77 of the Indian Evidence Act, and pointed out that copies obtained by ''Mechanical process'' are admissible as secondary evidence under the Indian Evidence Act. Relevant passages in the said decision read as follows:

The High Court, as stated earlier, set aside the order of the learned Magistrate only on the ground that the photostat copy of decree was not admissible in evidence. The High Court is not correct in its reasoning. u/s 74(1)(iii) of the Indian Evidence Act (hereinafter referred to as the ''Act'') documents forming the acts or records of the acts of public judicial officers of a foreign country are; public documents. u/s 76 read with Section 77 of the Act, certified copies of such documents may be produced in proof of their contents. However, u/s 86 of the Act there is a presumption with regard to the genuineness and accuracy of such certified copy only if it is also certified by the representative of our Central Government in or for that country that the manner in which it has been certified is commonly in use in that country for such certification.

Section 63(1) and (2) read with Section 65(e) and (f) of the Act permits certified copies and copies made from the original by mechanical process to be tendered as secondary evidence. A photostat copy is prepared by a mechanical process which in itself ensures the accuracy of the original. The present photostat copies of the judicial record of the Court of St. Louis is certified for the Circuit Clerk by the Deputy Clerk who is a public officer having the custody of the document within the meaning of Section 76 of the Act and also in the manner required by the provisions of the said section. Hence the photostat copy per as is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States-as required by Section 86 of the Act. The expression �certified copy'' of a foreign judgment in Section 14 of the Code has to be read consistent with the requirements of Section 86 of the Act.

The only difference between the case before the Supreme Court and the case before us is that there the photocopy was ultimately found inadmissible as secondary evidence, on Anr. ground, namely, that it did not contain the certificate of the Indian Consulate, whereas in the case before us the photocopy, namely, the fax copy contains the photo of the certificate of the Consulate. The photographic reproduction of the endorsement of the Indian Consulate upon the certified copy produced before the Indian Consulate is, in our opinion, obtained by a ''mechanical process'', and is admissible as secondary evidence. If the Petitioner had sufficient time, she would have brought up the certified copy containing the original certificate of the Indian Consulate from America for production in this Court as primary evidence. But now she is having to go back to USA in a few days. It is only after the counter was filed in this Court on 1st July 1993, taking the objection regarding the inadmissibility of the document in this Court, that the Petitioner moved her attorney in America arid requested him to file a certified copy of the court order before the Indian Consulate and got their certificate endorsed on the said certified copy and had it faxed to India. We find that the circumstances of the case require the receipt of this document as secondary evidence, inasmuch as there has not been much time to gel the original from U.S.A.

Before we go into the merits of the case, we have to refer to the earlier proceedings in this matter. At an earlier, stage, the Petitioner filed O.P. No. 6970 of 1988 for the issue of a writ of habeas corpus, and impleaded the first Respondent, the present first Respondent, her mother-in-law, but she did not implead her husband as Respondent When the matter came up before a Division Bench of this Court on 5th September 1988, the point argued before the learned Judges related to the question whether the children were under unlawful detention of their paternal grand-mother. The court came to the conclusion that the children having been brought into India by their father in 1985, and having been left in the custody of their paternal grand-mother, it could not be said that the custody of the paternal grand-mother, Was unlawful and illegal. As we read the judgment of the learned Judges, we do not find any contention before them that the mother was seeking to claim the custody of the children on the basis of court orders obtained by that date by her from the U.S.A. or that she had requested the court to consider what was in the paramount interests and welfare of the children. We are satisfied, on a reading of the judgment of this Court in O.P. No. 6970 of 1988 dated 6th September 1988, that the only question raised before this Court there related to the nature of detention of paternal grand-mother. The O.P. was dismissed also on the ground that the Petitioner''s husband was not impleaded as a party to the Writ Petition. Even otherwise, we are clearly of the view that aggrieved parties can always apprpach this Court under Article 226 of the Constitution of India and file yet Anr. habeas corpus application, even though a similar application had been rejected at an anterior stage. Now, the O.P. for habeas corpus is filed impleading the husband as a party. The present Writ Petition is also maintainable because the Petitioner has now squarely raised the question relating to the custody of the children based upon the order passed by the American Court. The Petitioner has also raised the question as to what would be in the paramount welfare of the children. Further, there is the subsequent event of the order of conviction of the husband dated 6th December 1989. This order is subsequent to the dismissal of the earlier Writ Petition. Having regard to the entire circumstances of the case, and the subsequent events, we are of the view that the Petitioner is entitled to approach this Court once again for the custody of the children. The earlier judgment does not operate as res judicata.

Here we may also advert to Anr. point raised by the learned Counsel for the first Respondent. He points out that the dismissal of the earlier O.P. No. 6970 of 1988 on 6th September 1988 was carried by way of Special Leave before the Supreme Court. The Special Leave was dismissed on 19th September 1989, as per Ext. P-8 and that operates as res judicata. The Supreme Court observed in Ext.- P-8 as follows:

The SLP is dismissed. It is open to the Petitioner to move, the competent civil court under the Guardians and Wards Act for appropriate relief.

It will be noticed that the Supreme Court while observing that the Petitioner could move the competent civil court, under the Guardians and Wards Act, did not fore close the right of the Petitioner, to approach this Court by filing habeas corpus petition on new grounds or on basis of subsequent events. Surely, if there are fresh facts or fresh grounds, the Petitioner cannot be precluded from filing the present petition. As stated above there are new grounds for the habeas corpus petition, and there are also, new facts in the sense that the conviction of the husband is subsequent to the earlier judgment of this Court. Further, the observations of Chandrachud, C.J in Smt. Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and Another, , clearly showthat if the writ Petitioner is settled down in a foreign country, and comes to India and files an application under Article 226 of the Constitution of India, it may in certain circumstances be futile to ask her to seek remedies under the Guardians and Wards Act, which may lead to protracted litigation. Their lordships pointed out that such a person could be given, relief in the habeas corpus petition under Article 226 of the Constitution of India, for in most of the cases, the Petitioner may have to return to the country of her residence on account of restrictions in the visa or on account of compulsions such as leave; etc.

For all the aforesaid reasons, we hold that the present petition is maintainable notwithstanding the dismissal of the earlier O.P. No. 6970 of 1988.

At one stage, we had granted the mother the custody of the children for two week ends. This was done by our order dated 23rd June 1993. We again passed an order on 7th July 1993, granting custody of the children to the Petitioner for one more day. Pursuant to that order, the Petitioner brought the children to court on 8th July 1993. On that day, we had a discussion with the three children elaborately for about an hour in the presence of their counsel. The eldest body, Benjamin, who is in the 10th standard, broke down before us several times, but expressed his desire to remain in India rather than go with his mother to U.S.A. The second child, Blessy Mary, who is the daughter of the Petitioner, and who is in the 8th standard, and the third child, a boy, Justus, who is in the 5th standard, appeared to us to be wavering or at, any rate temporarily under the influence of their eldest brother, Benjamin. We then thought it fit to give further custody of the three children to the Petitioner-mother for three more days, that is rest of 8th, 9th, 10th and 11th, and asked them to reassemble in our chambers today, i.e., 12th July 1993.

The position today is that the daughter, Blessy Mary, and the second son, Justus, who are respectively studying in the 8th standard and 5th standard, have agreed to go with the mother. So far as the eldest boy, Benjamin, is concerned, he is not willing to go with the mother.

Having ascertained the wishes of the children, we now proceed to consider what could be in the welfare of the children. The position is that the father is in prison in U.S.A. The children are left in the custody of the paternal grandmother in 1985 in India. The paternal grand-mother is 74 years old, and she had put the children in a Boarding School in a different place. The children have neither the company of their mother, nor their father, nor of the paternal grandmother. It is stated that an unmarried daughter of the first Respondent (i.e., paternal aunt of the children) is staying with her mother, namely, the paternal grand-mother of the children. It is also stated that there is a step son of the paternal grand-mother, a son born to her first husband, who is residing in a separate house but at the same place. This is so far as the position in India is concerned. So far as the mother is concerned, she is employed as a nurse in a hospital in the United States of America. She has an order for custody of the children from American Court, namely, Ext. P-6. She is employed and she is confident that she will be able to support her children. We are satisfied that she has sufficient means to maintain and educate the children. In addition, she stated before us that an old retired teacher who is an American is residing with her and is being looked after by her, and that that lady is affectionate to children and she has agreed to take care of the children as and when they are brought to U.S.A. According to us the said arrangement will be in the best interests of the children. They will have the affection of their mother and they will have the better education and career prospects in U.S.A. That in our view will be in the paramount interests and welfare of the children.

The eldest boy, Benjamin, is studying in the 10th standard, and on his passing the 10th standard, he will necessarily have to be separated from the other two children, for he may have to go for his pre-degree elsewhere, and therefore there would not be any objection for separating the eldest boy from the other two children and allowing the two children, namely, Blessy Mary and Justus to go with the mother to U.S.A.

Having regard to the above facts, we are of the view that the second child, Blessy Mary, and the third child, Justus who are willing to go with the mother should be allowed to go with her to U.S.A. So far as the eldest boy, Benjamin, is concerned, as he is not willing, we are not passing any order for his being taken to America notwithstanding the fact that the order passed by the American Court permits the mother to have the custody of that boy also.

The Petitioner has now assured us that in the event of the two children, namely, Blessy Mary and Justus, not adjusting themselves to the environment there, she is prepared to send them back to India after one year. This statement is also recorded.

The passports of the three children we''re placed before us by the Respondent''s counsel. We hereby direct that the passport of the second and third children, namely, Blessy Mary and Justus, shall be handed over to the Petitioner. The other passport of the eldest boy, Benjamin, will be returned to first Respondent''s counsel to be handed over to the first Respondent.

In the result, the habeas corpus petition is allowed The Petitioner is granted custody of two children, namely, Blessy Mary and Justus, and she will be entitled to take these two children either along with her or otherwise to U.S.A. according to her convenience. These two children are therefore permitted to be with the mother, namely, the Petitioner herein, to enable her to take them to U.S.A., as stated above. The School authprities of Mount Zion English Medium School, Kadammanitta, are hereby directed to give T.Cs. and Conduct Certificates in respect of the two children, namely, Blessy Mary, studying 8th standard, and Justus, studying 5th standard, to the Petitioner so as to enable the Petitioner to seek admission for these two children in Schools in America. The school authorities shall also not object to the Petitioner having custody of these two children with the Petitioner with effect from today.

The Superintendent of Police, Pathanamthitta is hereby directed to expedite issuance of clearance certificate to the Petitioner to enable her to take these two children out of India, to U.S.A.

The O.P. is allowed in the above terms.

Learned Counsel for the first Respondent has made an oral application for certificate under Article 134-A(b) of the Constitution of India. We are of the view that there is no substantial question of law of general importance which in cur opinion needs to be decided by the Supreme Court arises in this case. The oral application is accordingly rejected.