W.P.(CRL)--374/2017. Case: K G Vs. STATE OF DELHI & ANR.. High Court of Delhi (India)
| Case Number | W.P.(CRL)--374/2017 |
| Citation | NA |
| Judgement Date | November 16, 2017 |
| Court | High Court of Delhi (India) |
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 18.04.2017 % Judgment delivered on: 16
+ W.P.(CRL) 374/2017 and Crl. M.A. No.2007/2017
K G ..... Petitioner
Through: Mr. Prabhjit Jauhar & Ms.
Gupta, Advocates.
versus
STATE OF DELHI & ANR ..... Respondents Through: Mr. Rahul Mehra, Standing
(Crl.) and Mr. Tushar Advocate along with SI Kumar, PS-Vasant Kunj (South),
the State.
Ms. Malavika Rajkotia, Ms.
Rai, Mr. Ranjay N. & Ms. Maheshwari, Advocates for and along with respondent No.2 in person.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT
VIPIN SANGHI, J.
1. The petitioner herein has preferred the present writ petition issuance of a writ of Habeas Corpus for production of his minor daughter, G, who is presently three years eight months of age and is a resident and natural born citizen of USA. He is also seeking a direction return of M to the jurisdiction of the competent Courts in the United
America in compliance with the order dated 13.01.2017 passed by the
Court of Cook County, Illinois, USA. The child is presently under the custody of her mother, Respondent No. 2.
und
Petitioner is an Indian born citizen of USA since 2005. He is working CEO of a company called GetSet Learning. Respondent No. 2 is the of the petitioner and mother of M. She has the status of a US
Resident and is a ‘Green Card’ holder, who has also applied for izenship on 2.12.2016. She is a certified teacher in the State of , and was employed as a Special Education Classroom Assistant in Chicago Public Schools. The petitioner and respondent No. 2 got married on
.2010 as per Sikh rites, i.e. Anand Karaj ceremony, and Hindu vedic in New Delhi, India.
The petitioner submits that it was understood between both the parties the respondent no. 2 would come and live with the petitioner in the
Respondent No.2 applied for and obtained a Fiancée Visa from the embassy, showing herself as “Single (Never Married)” and her name as ” with her address as that of parents, in the DS-230 Form.
After obtaining the Fiancée Visa on 03.03.2011, the respondent no. 2 to the USA and got married with the petitioner again on
19.03.2011 at Cook County Court in Chicago, Illinois. A reception was also for the couple in Ohio, USA by the family of the petitioner. Before
marriage, the parties entered into a Prenuptial Agreement dated
20.10.2010, enforceable in accordance with the laws of the State of USA.
5. Respondent no. 2 adapted herself in her new home by changing surname; applying for a State of Illinois Teaching certificate, and;
for gain as a teacher in Chicago Public Schools. She also secured Permanent Citizen Green card.
6. Respondent no. 2 became pregnant with M towards end of July and M was born on 15.02.2014. The petitioner submits that both the wanted M to be born in USA and attain US citizenship. He submits that a natural born US citizen and has been domiciled in the State of USA since her birth. He relies upon M’s US birth certificate
28.03.2014, and her passport issued by the US Department of State
21.05.2014 as evidence of the same.
7. Until December 2016, M remained in Chicago with her parents. was being taken care of by not just her parents, but her paternal grandparents as well when respondent no. 2 was working. M started pre-school from July 2016 onwards, and was scheduled to join a three year olds’ classroom w.e.f.
09.01.2017.
8. On 25.12.2016, petitioner along with the respondent no. 2 and for New Delhi, India for a short trip. They stayed with respondent parents. They were scheduled to head back to Chicago on 07.01.2017. petitioner submits that 11 hours before their departure on 07.01.2017, respondent no. 2 with their daughter went missing. He submits that he looking for the two of them everywhere but could not find them. He
in-laws about their whereabouts and even tried calling respondent no. 2 on her cell phone but got no response. Because he had already pre-booked his flight to Chicago, he left.
Respondent no. 2 filed a petition under section 13(1) of Hindu
Act, HMA No. 27/17 seeking dissolution of marriage on the of cruelty, along with an application under section 26 of HMA on seeking a restraint order against the petitioner from taking away he jurisdiction of Indian Courts. Notice was issued to the petitioner returnable on 11.01.2017 in the application under section 26 of HMA.
Subsequently, the petitioner moved an emergency petition for sole allocation of parental responsibilities and parenting time in
favour, or in the alternative, an emergency order of protection for of his minor daughter M G before the Circuit Court of Cook
County Illinois, USA on 09.01.2017. He submits that a notice of emergency motion was served by e-mail upon the respondent no. 2, informing her of the proposed hearing on 13.01.2017 in this matter.
On 11.01.2017, the Patiala House Family Court issued fresh notice to the petitioner. At the same time, it passed ex-parte orders on the application by respondent no. 2 under Section 151 CPC seeking an ad interim restraining the petitioner from removing the minor child from the of the court, and restrained the petitioner ex-parte from M from the jurisdiction of the court pending the return of on 06.02.2017. However, during pendency of the present the said application was dismissed upon contest on 25.03.2017. A
copy of the said order has been tendered in Court by learned counsel for the petitioner during the course of hearing. Consequently, there is no against the petitioner from taking M – his daughter, to the USA.
12. On 13.01.2017, the petitioner caused a missing persons complaint be filed before the SHO, Vasant Kunj (South) PS, New Delhi
14.01.2017, the complaint was acknowledged and registered by the Vasant Kunj (South) vide DDR NO. 208.
13. On the same date, i.e. 13.01.2017, the Circuit Court of Cook ordered the following, while fixing the next date of hearing on 16.03.2017
“1)The child M G born on Feb 15, 2014, in Chicago, Illinois and having resided in Chicago solely for her entire life (specifically at 360 East Randolph Street, Chicago, IL 60601) is also a US citizen.
2) The child is a habitual resident of the state of Illinois, United States of America having never resided anywhere else. Illinois is the home state of the child pursuant to the Uniform Child Custody Jurisdiction Enforcement Act.
3) K G is the natural father of the minor child and granted interim sole custody of the minor child. Child is to be immediately returned to the residence located in Cook County, Illinois, USA by Respondent .
4) The Cook County, Illinois Court having personal and subject matter jurisdiction over the parties and matter.
5) All further issues regarding visitation, child support are reserved until further Order of Court.” (emphasis supplied)
14. Because the respondent no. 2 did not comply with the said order the Circuit Court, Cook County, the petitioner has preferred this petition
of his daughter M, and her return to the USA in view of the said The petitioner has been able to communicate with the child through in the past few months. He flew to India to file the subject petition has, vide orders dates 09.02.2017, 14.02.2017 and 28.03.2017, been to see and spend time with the child in the presence of the respondent no. 2 and her parents. The passport of the child is presently in the possession of the petitioner.
Petitioner’s submissions
Learned counsel for the petitioner, Mr. Prabhjit Jauhar submits that the petitioner as well as his wife, respondent no. 2 – from even before came into this world, had full intentions of their child being a US by birth. This is evident from the fact that both the parties are and permanently residing in the State of Illinois, USA since their in 2011, and M was delivered in USA, though the parents of
No.2 reside in India. He submits that the respondent no. 2 also clear intentions of staying in the USA, since she applied for citizenship
USA. He relies upon the e-mail communication of respondent No.2 dated 07.11.2016 sent to one Nancy Vizer, inter alia, stating “I wanted to let know that I have decided to take up US citizenship” a Form I-797C
07.12.2016 received from the Department of Homeland Security, U.S. and Immigration Services, wherein the said department had
respondent no. 2 that her application for Naturalization was on 02.12.2016, and was being processed. He submits that the no. 2 had taken this step with a clear desire to renounce her citizenship, as India does not permit dual citizenship. She was
employed and was having separate bank accounts, health membership in trade union, and pension/retirement accounts as well USA. Learned counsel has referred to the reply filed by respondent before the Family Court to the petitioner’s application under Order 7
11 CPC, wherein she has stated:
“a. … … … It is not denied that the petitioner is a permanent resident of USA as a Green Card Holder. It is submitted that the Petitioner applied for citizenship of USA under duress, … … …
x x x x x x x x x x
x x x x x x x x x x
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The contents of paragraph no.3(d) are false and denied, and admitted only to the extent that the parties left for USA after their marriage, and their matrimonial home is located in Chicago, Illinois. It is not denied that the parties resided at their matrimonial home, first at 512 N McClurg Court, Unit 2812, Chicago, IL-60611, USA, then at 512 N McClurg Court, Unit 1410, Chicago, IL-60611, USA, and since 31.01.2014 at 360, East Randolph Street, Unit 2805, Chicago, Illinois-60611, USA. The first two apartments were rented by the Parties, and the third was a condo bought by the parties but legally registered in the name of the Respondent and his father. It is not denied that the petitioner was employed full-time in USA as a Special Education Classroom Assistant with Chicago Public Schools. However, the Petitioner was employed full-time only from November 2012 to August, 2014 at James Otis Elementary School, and then from September...
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