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Judgment
S.C. Gupte, J
This interim application has been made in a disposed of writ petition filed under Article 227 of the Constitution of India, which petition had
challenged an interim order passed by the Family Court in a custody dispute concerning minor children of the parties.
The Applicant’s case in this Interim Application may be briefly stated thus:
The Applicant (a US resident at the relevant time) and the Respondent (a Thai citizen) were married as per Thai Law in 1997 in Thailand. After their
marriage, they lived in India. The Applicant forfeited his US citizenship to become an Indian citizen, whilst the Respondent continued to be a Thai
citizen. There are three children born out of the wedlock. The eldest son, Anav, is 20 years old, whilst the daughter, Arshiya, is about 16 and son,
Ahren, is about 12 years old. The parties have been living separately since 29 June 2012 due to a discord in their marital life. An incident, which
occurred sometime in June 2012, when the Applicant took his elder son on a vacation to his parents, led to the Respondent filing a habeas corpus
petition for producing the children. That petition came to be disposed of based on a compromise between the parties. Vide order dated 22 August
2012, passed by this Court in that petition, the parties were at liberty to file appropriate petitions before the Family Court for reliefs concerning custody
of their children, whilst, in the meantime, passports of all three minor children were ordered to be deposited in this Court so as to continue to be in the
custody of the Registry. A pro-tem arrangement was ordered by this Court about the custody of the children pending petitions before the Family
Court. The Applicant, thereafter, filed a petition for custody of his minor children, being Petition No.D-87 of 2012, and a separate petition for divorce,
being Petition No.A-2177 of 2012 before the Family Court, whilst the Respondent filed her own petition for custody, being Petition No.D-90 of 2012,
and for nullity of marriage, bearing Petition No.420 of 2015. During the pendency of these petitions, the parties had respective custodies of their
children in accordance with the pro-tem arrangement reflected in the consent order passed by this Court in the habeas corpus petition referred to
above. The Applicant made an application before the Family Court for permission for his son Anav (then aged 16) to travel to USA for higher studies.
The Family Court, by its order dated 30 April 2016, rejected that application. The Applicant then carried the matter before this Court in a writ petition
filed under Article 227 of the Constitution of India impugning the order of the Family Court. By a judgment and order passed on 24 April 2017, a
learned Single Judge of this Court disposed of that petition by setting aside the order of the Family Court and permitting Anav to travel to USA for his
studies. The Respondent wife challenged the order of the learned Single Judge before the Supreme Court by an SLP. When the matter was in the
Supreme Court, the parties mediated for a settlement and arrived at an understanding, agreeing to Anav’s travel to United States for further
studies with the blessings of both parents; the costs of his residence and education in US were to be borne by the Applicant father. In the meantime,
there were some criminal proceedings between the parties, which, inter alia, gave rise to a PIL filed by one India Women’s Organization before
the Supreme Court. On a miscellaneous application taken out in that petition, the Supreme Court, by its order dated 15 February 2019, recorded an
assurance on the part of both parties herein that they would extend full co-operation to the Family Court for early disposal of the custody cases and
not file any interim application in the meanwhile. The Supreme Court directed to the Family Court to complete the proceedings by the end of May
2019 and disposed of the miscellaneous application. The Supreme Court, thereafter, extended the time for the Family Court to conclude the
proceedings till 19 September 2020. The matters have thus been in active prosecution before the Family Court. On these facts, the present application
is made by the Applicant husband praying for permission to Arshiya to travel to USA for further studies and a direction to the Registry to release for
her passport and OCI card to enable her to do so. The application, as noted above, is in the disposed of petition challenging the original order of the
Family Court concerning the travel and education of the eldest son Anav referred to above.
The application is contested by the Respondent wife on various grounds, though what we are primarily concerned with and what has weighed with
this Court, as discussed below, is the very maintainability of the present interim application in the disposed of writ petition referred to above. Possibly
faced with the prospect of not being able to present any interim application before the Family Court, having regard to the Supreme Court order dated
15 February 2019 (noted above), the Applicant seeks relief in respect of his daughter’s studies from this Court in the disposed of petition.
(Incidentally, contemporaneously, an application has been moved by Respondent wife before a Division Bench of this Court seeking to modify its
original order passed in the habeas corpus petition, altering thereby the original pro-tem arrangement ordered by this Court therein during the pendency
of the custody petitions, particularly, seeking permission for the parties’ youngest son Ahren to travel to Thailand for further education. That
application is yet to come up before the Division Bench for hearing.)
Before I deal with the issue of maintainability of the present interim application, it is worthwhile to note that the Respondent wife was amenable to
the Applicant applying for reliefs claimed herein before the Division Bench whom she has approached for permission to allow Ahren to travel out of
the country for further studies. Mr. Cama, learned Counsel appearing for the Applicant husband, however, has objections to the maintainability of the
Respondent’s application before the Division Bench and is unwilling to take his application before it, for being heard simultaneously with the
Respondent’s application.
That leaves the matter to this Court to decide. The foremost contest, as noted above, is on the maintainability of the present interim application. As
the Supreme Court has observed (see, State of Uttar Pradesh vs. Brahm Datt Sharma (1987) 2 Supreme Court Cases 17 , Ajay Mohan vs. H.N. Rai
(2008) 2 Supreme Court Cases 507 and The State of Orissa vs. Madan Gopal Rungta 1952 SCR 28 : AIR 1952 SC 12 : (1951) 2 MLJ 645), no
substantive application can be entertained in a disposed of petition after the Court has lost seisin of the matter and become functus officio. Besides,
the controversy in the disposed of petition concerned the application of the Applicant father for permission for his son Anav to travel abroad for
education. The matter was hotly contested and finally a settlement was arrived at between the parties in the Supreme Court, as noted above. The
present application has nothing to do with that original application and the challenge therefrom before this Court and which resulted in the settlement
before the Supreme Court. The present application concerns an altogether different controversy, namely, the education of the parties’ daughter
Arshiya, for which permission of the Court is sought by the Applicant to allow her to travel abroad. Consideration of the present matter would partake
of assessment of an entirely new set of facts and circumstances; it would, in fact, call for an original order of the trial court. As we have noted above,
the Applicant is probably anticipating a road-block in so approaching the trial court by way of an original application, in view of the embargo on any
further interim applications in the matter, which the parties have themselves consented to and which has been recorded by the Supreme Court in its
order passed on the miscellaneous application noted above. But that does not mean that the embargo can be bypassed by approaching this Court
directly in the disposed of petition arising out of, as we have noted above, an earlier and altogether different application before the trial court. The
Applicant could well have approached the Supreme Court and sought a clarification or concession for having the interim application considered by the
trial court. Instead the Applicant has applied to this Court in a disposed of petition, the subject of which was clearly unrelated to the present
application. That obviously cannot be countenanced.
Mr. Cama, learned Counsel for the Applicant, relies on the Supreme Court judgments in the cases of Nil Ratan Kundu vs. Abhijit Kundu (2008) 9
SCC 413, and Yashita Sahu vs. The State of Rajasthan (2020) 3 SCC 67 and the decision of this Court in Munira Mohamed Sadique Bhiman vs.
Mohamed Yasin Mohamed Sadique 1984 SCC Online Bom 275 . Relying on these judgments, learned Counsel submits that whenever the Court is
considering a custody issue, it is the welfare of the minor child, which alone is paramount and no technicalities, including issues of maintainability, ought
to come in the way of this Court passing appropriate orders in the interest of the child. I am afraid, that will be turning the law of jurisdiction on its
head.
In each of the cases noted above, there was no serious contest as to the jurisdiction of the Court. In Nil Ratan Kundu (supra), the respondent
father’s application for custody of the parties’ minor son Antariksh was filed under the Guardians and Wards Act, 1890 before a competent
court; there was no contest as to the court’s jurisdiction. The trial court as well as the High Court in a challenge from the trial court granted
custody to the respondent father. The submissions of the appellant (father-in-law of the respondent) before the Supreme Court, which appear to have
weighed with the Court, were that the material before the trial court had indicated a serious charge of dowry death of the wife; both the appellant
father in law and the respondent’s own mother had filed an FIR against the respondent in respect of that death; the respondent was arrested by
the police; his mother thereafter absconded and Antariksh was found sick from the house of the respondent. The Supreme Court was of the view that
on these facts and in these circumstances, both courts below were duty-bound to consider the allegations against the respondent and pendency of the
criminal case for an offence punishable under Section 498-A of IPC, which seriously reflected on the character of the accused respondent. The court
was also of the view that Antariksh should have been interviewed by the courts with a view to ascertain his wishes, which was not done. The court
came to the conclusion, after interviewing the child in chamber, that in the facts and circumstances, it would not be proper to give custody of the child
to the respondent father. The observations that a court, while dealing with custody cases, is neither bound by statute nor by strict rules of evidence or
procedure or by precedent, which are relied upon by Mr. Cama, were in that context. The court reiterated that in selecting proper guardian of a minor,
the paramount consideration should be the welfare and well-being of the child; in doing so the court exercises parens patriae jurisdiction, giving due
weight not only to the child’s ordinary comfort, containment, health, education, etc., but also moral and ethical aspects. The law stated by the
Court in that case has no application to the case urged by Mr. Cama. Relying on these observations, Mr. Cama cannot get over the jurisdictional
constraints referred to above.
Even in Yashila Sahu (supra), which was a habeas corpus petition for custody of a minor child, whom its mother, the respondent, had carried from
USA, where the parties were living, to India in violation of an order passed by a local US court to whom both parties had approached for redressal of
their matrimonial disputes, the petition was rightly presented before the Rajasthan High Court. The technical objections, which were referred to by the
Supreme Court and which were said to be incapable of coming in the way of dictates of the child’s welfare, did not bear on jurisdiction or
maintainability. These had to do with inter se rights of parties and technical obstacles concerning inter alia the doctrine of comity of courts.
In Munira Mohamed Sadique Bhiman (supra), the point of maintainability raised by the respondent was that the petition was for a habeas corpus
writ, which could be issued if the respondent's custody of the child was illegal, and not where it was legal; and that in the case before the court, the
custody was legal, the parties having themselves agreed to handing over the custody to the respondent under a Khulanama. The Division Bench of our
Court, which decided the petition, was of the view that this objection was rather technical. The Division Bench observed that it was dealing with
human problems and would not allow technicalities to defeat the ends of justice; the only consideration guiding it would be of the welfare of the minor.
These observations bear on the court’s inclination to disregard legal rights of particular parties, whilst deciding questions of custody of minors. The
petition was maintainable before the court; what the court disregarded was the consideration of legality of the custody reflecting on inter se rights of
the parties; what it gave importance to was the welfare of the child. I am afraid, this judgment cannot allow Mr. Cama to get over the issue of patent
want of maintainability, which is what the case here is.
What these judgments imply is that whenever the Court is properly seized of a matter concerning custody of a minor, whilst assessing the merits of
the controversy and granting suitable reliefs, it ought not to be hampered by strict letter of a statute or by matters of procedure or technicalities for
doing justice in consonance with the welfare of the child. The maintainability of the very custody matter or related application, as in this case, cannot
be disregarded on this principle. All that this principle requires is that when it comes to deciding a properly maintainable application before it, the Court
is not concerned as much with inter se rights of the parties, which are matters of statute or, for that matter, technical considerations of procedure
relevant to such application as with the welfare of the child, which it considers to be of paramount importance, that is to say, over and above legal
rights of parents or guardians. I am afraid, this principle, supported by the judgments cited by Mr. Cama, cannot come to the rescue of his client when
there is a patent want of jurisdiction, which goes to the root of the matter.
Mr. Cama implores the Court to consider that what is at stake here is the very opportunity of education for the parties’ minor daughter, and
for which the Respondent wife cannot and does not have any serious objection on merits. I am afraid, in a serious contest of maintainability, and when
the Court is of the view that the application is not maintainable, this argument cannot carry Mr. Cama any far. It is very much open to his client to
approach the Supreme Court and seek a clarification in its order requiring the parties not to make any interim application pending hearing of the
custody petitions, and then approach the trial court for the relief prayed for herein. It is also no answer that the Respondent herself has made a
statement before the Court (without prejudice to her contentions) that she had no objection to Arshiya travelling to USA for education, provided the
youngest son Ahren was also permitted to travel for his education to Thailand. It was in that case open to the parties to come to the Court with an
agreed formula. The parties, as it turns out, have no agreement on the issue and this Court is called upon to consider the matter on merits and pass
order on an application, which, as we have noted above, is patently not maintainable. I am afraid, in these circumstances, this Court cannot exercise its
jurisdiction, even its parens patriae jurisdiction, for the welfare of the minor. Clearly, the parties will have to seek their remedy elsewhere.
There is, accordingly, no merit in the interim application. The interim application is dismissed. It is made clear that this dismissal is based simply on
want of maintainability; in passing this order, this Court has not considered the merits of the application.
This judgment will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally
signed copy of this judgment.