Criminal Appeal No. 934-936 of 2013 (Arising out of SLP (Crl.) Nos. 10606-10608 of 2010) and Criminal Appeal No. 937 of 2013 (Arising out of SLP (Crl.) No. 3335 of 2012). Case: 1. Arathi Bandi, 2. Bandi Jagadrakshaka Rao and Ors. Vs 1. Bandi Jagadrakshaka Rao and Ors., 2. The State of Andhra Pradesh and Anr.. Supreme Court (India)
| Case Number | Criminal Appeal No. 934-936 of 2013 (Arising out of SLP (Crl.) Nos. 10606-10608 of 2010) and Criminal Appeal No. 937 of 2013 (Arising out of SLP (Crl.) No. 3335 of 2012) |
| Judges | Surinder Singh Nijjar and Pinaki Chandra Ghose, JJ. |
| Issue | Dowry Prohibition Act, 1961 - Sections 4, 6; Guardian and Wards Act, 1890 - Sections 9, 12; Code of Civil Procedure (CPC), 1908 - Sections 13, 151; Indian Penal Code (IPC) - Sections 498A, 506; Code of Criminal Procedure (CrPC) - Section 482; Constitution of India - Articles 32, 226, 227 |
| Judgement Date | July 16, 2013 |
| Court | Supreme Court (India) |
Judgment:
Surinder Singh Nijjar, J.
1. Leave granted.
2. These appeals arising out of Special Leave Petition (Crl.) No. 10606-10608 of 2010 are directed against the judgment and final order dated 24th September, 2010 passed by the High Court of Judicature of Andhra Pradesh, Hyderabad in Writ Petition No. 25479 of 2009 issuing a writ in the nature of Habeas Corpus directing the Petitioner to submit to the jurisdiction of U.S. Courts. The Petitioner also assails the orders dated 3rd December, 2010 and 14th December, 2010 passed by the Andhra Pradesh High Court in W.P.M.P. No. 31378 of 2010 in W.P. No. 25479 of 2010, directing the Petitioner to produce the child along with necessary documents to give effect to the main judgment and order dated 24th September, 2010. The Appellant has framed three questions of law for the consideration of this Court in the Special Leave Petition giving rise to these appeals. They are as under:
(A) Has not the Hon'ble High Court failed to exercise jurisdiction vested in it under law in not considering the welfare and well being of the minor child before issuing the impugned directions?
(B) Has not the Hon'ble High Court erred in holding that when there is an order passed by foreign court, it is not necessary to go into the facts of the case?
(C) Is not the judgment of US Court "not conclusive" as between the parties and hence unenforceable in India for being in violation of Section 13(c) and (d) of the Code of Civil Procedure, 1908?
3. The relevant facts giving rise to the aforesaid questions of law as narrated by the parties are as under:
(a) Respondent No. 1 (hereinafter referred to as the "husband") invoked the Habeas Corpus jurisdiction of the Andhra Pradesh High Court under Article 226 of the Constitution of India for production of the minor child, i.e., Master Anand Saisuday Bandi before the Court and permit him to take custody of the minor child in compliance of the orders passed in Case No. 06-3-08145-9-KNT by the Superior Court of Washington, County of King (hereinafter referred to as "the U.S. Court"). Upon consideration of the entire facts and circumstances, the High Court issued the following directions:
i) The Petitioner shall obtain necessary travel tickets for the 7th Respondent and the child for their visit to the place where U.S. Court is situated;
ii) On obtaining travel tickets, the Petitioner shall intimate the same to the 7th Respondent three weeks in advance of the date of departure to enable her to make necessary arrangements;
iii) The Petitioner shall deposit a sum of $5000 (Five thousand American dollars) in the name of the 7th Respondent for enabling her to engage an advocate in US and to submit to the jurisdiction of the US Court;
iv) The Petitioner shall make necessary arrangements for the stay of the 7th Respondent and the child for a period of fifteen (15) [sic] on their landing in USA.
v) On Petitioner providing travel tickets, depositing the amount as ordered above, and intimating the date of departure, if 7th Respondent fails to submit to the jurisdiction of the US Court along with the child, Master Anand Saisuday Bandi, in obedience to the orders passed in writ of Habeas Corpus by the US Court, she shall handover the custody of the child to the Petitioner, who in turn shall produce the child before the US Court and custody of the child will abide by the decision of the US Court since the child is a citizen of USA.
(b) The Petitioner (hereinafter referred to either as "the Petitioner", "the wife" or "the mother"), aggrieved by the aforesaid directions, filed the special leave petitions giving rise to the present appeals.
Events/Legal Proceedings in the U.S.A.:
(c) The marriage between the parties was solemnized according to Hindu rights on 9th November, 2003 in Atlanta, USA. They were both divorcees. After marriage, they had settled down in Seattle, USA. Anand (hereinafter referred to either as "the child", "the minor child," or "Anand") was born on 5th June, 2005 in USA and, therefore, is a US citizen by birth. On 30th October, 2006, Respondent No. 1 (hereinafter referred to as "Respondent No. 1", "the husband" or "the father") filed a petition for dissolution of marriage in Superior Court of Washington, County of King at Seattle. In these proceedings, an ex parte order was issued restraining the wife from leaving the State of Washington. The husband was authorised to hold on to the passport and Person of Indian Origin Card (PIO Card) of Anand. Within days of the husband petitioning for dissolution of marriage, the wife on 13th November, 2006 submitted a complaint of domestic violence in which the Superior Court of Washington, Kent directed the husband to move out of the matrimonial home. Anand was to remain in the custody of wife with limited visitation rights were granted to the husband. The wife was, however, directed to pay US $ 1500 for the husband's expenses until the regular hearing. On 4th December, 2006, further orders were issued stipulating that the wife/mother would occupy the family home with the child. Furthermore, the father was to bear half of the mortgage on family home, child's day care expenses and insurance costs for the child and the mother. The unsupervised visitation rights of the father were increased from 9 hours to 12 hours per week. Father's attorney was required to hold Anand's U.S.A. Passport. On 1st March, 2007, Ms. Jennifer Keilin was appointed by the Superior Court of Washington, Kent as Guardian ad litem to make recommendations regarding the marriage and child custody. On 22nd June, 2007, Parenting Evaluation Report was submitted to the U.S. Court. The wife/mother was found suitable for custody in view of the problems of the husband/father at the work place, alcohol dependency and smoking addiction. It was also noted that the child Anand has very serious food allergies. On 9th July, 2007, the wife filed a motion before the Superior Court of Washington, Seattle for an emergency hearing on her petition requesting travel to India for two weeks. This was denied by the aforesaid court on 10th July, 2007. On the same day, the wife moved the Superior Court of Washington, Kent seeking an emergency hearing. This too was denied by the Court. However, regular hearing was set for 24th July, 2007. On 25th July, 2007, at the regular hearing, the Superior Court of Washington, Kent passed an order permitting the wife to travel to India with the child. However, at the request of the husband, the said order was stayed, until his motion of reconsideration could be adjudicated. On 17th August, 2007, the wife filed motion for continuance of trial, permanent relocation to India with the child and requesting the court to order the father to undergo domestic violence assessment. On 4th September, 2007, Superior Court of Washington, Kent passed orders granting request of the wife for continuance of trial, appointing Ms. Keilin to conduct another evaluation to make recommendations regarding relocation. However, the request of the wife to order the husband to go through a further domestic violence assessment was denied. On the same day, i.e. 4th September, 2007, the appeal of the father against the order dated 25th July, 2007, permitting the wife to travel to India with the child, was allowed.
(d) The trial in the main petition for dissolution of marriage on the ground of irretrievable breakdown of marriage commenced on 18th March, 2008 in the Superior Court of Washington, Kent. On 19th March, 2008, parenting plan was approved with primary custody of Anand given to the mother and limited visitation rights granted to the father. During summer vacations of two weeks, each parent was granted five consecutive days of residential time, at a time. Out of State or International travel was permitted to both the parties during the residential time. The attorney of the husband was ordered by the Superior Court of Washington to prepare final orders.
4. On 20th March, 2008, the motion of the wife for relocation to India was denied. On 7th July, 2008, the wife filed a motion petition before the Superior Court of Washington, Kent requesting a clarification on final parenting plan to permit 13 consecutive days of vacation with the child for traveling to India. On 16th July, 2008, Superior Court of Washington denied her motion. In violation of the aforesaid orders, the wife travelled to India with Anand on 17th July, 2008. On 22nd August, 2008, final orders were passed in the petition filed by the husband for dissolution of marriage. The order includes findings of fact and law entered by the Superior Court of Washington. The Court specifically recorded the reasons that led to the denial of the motion filed by the wife for relocation on 20th March, 2008. On 23rd August, 2008, divorce decree entered by the Superior Court of Washington as part of final orders.
5. On the same day, i.e., 23rd August, 2008, the wife sent an e-mail to the husband informing him that she will return on 16th September, 2008 alongwith the child. This E-mail also contained the confirmed itinerary. Since the wife did not return with the child, the husband moved an application in September, 2008 seeking modification of the final parenting plan on the grounds of violation of earlier parenting plan (19th March, 2008) and interference with his visitation rights. On 9th December, 2008, Superior Court of Washington, Kent modified the parenting plan. The husband was made custodial parent and the wife was granted visitation rights. On 12th December, 2008, Superior Court of Washington, Seattle also issued a Writ of Habeas Corpus, directing the State and its officers to locate and take Anand into immediate custody and deliver him to the Presiding Judge of the Superior Court of Washington, County of King. On 11th January, 2009, abduction notices were issued against the wife. This was followed by a Red Corner Notice. In the meantime, the services of the husband were terminated by...
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