The Madras High Court has said that the custody of minor children can be decided only by courts in their country of habitat.
Disposing of a dispute between an Indian origin doctor-couple over the custody of their Australia-born children, the Bench, comprising Justices V.Dhanapalan and C.T.Selvam, said it would be appropriate to allow the courts of the country, to which they belonged, decide upon custody and related issues.
Rejecting a claim of the father, the Bench directed him to hand over the children to the mother
Originally, Elizabeth Packiam, maternal grandmother, filed a habeas corpus petition seeking a direction to the police authorities to produce her minor grandchildren - a three-year-old girl and 11-month-old boy- to her. She alleged that her son-in-law, Suthanthira Kumar, had abducted the children from Australia and taken them out of care and custody of her daughter, Prarthana Packiam.
Suthanthira Kumar and Prarthana Packiam are doctors and permanent residents of Australia.
The petitioner said that after the birth of children, her daughter Prarthana lived separately with children and underwent General Practitioner Training in Wollongong, Australia, while her husband Suthanthira Kumar stayed in Sydney. He used to frequently visit her on weekends. On one occasion, he took away the children under the pretext of taking them to a theme park. Later, he informed her over phone that she could follow him if she wanted the children. Prarthana was in a state of shock and unable to feed her second child, Ms Elizabeth submitted.
The court also summoned the children’s mother – Prarthana - from Australia to hear her side.
However, Suthanthira Kumar, denied all allegations. He also sought to justify his action of bringing the children to India, stating that as a lone man residing in a foreign country, he was unable to take care of them at all times and that too under unpleasant situations. His counsel sought to dismiss the habeas corpus petition filed by his mother-in-law and contended that a Family Court seized the matter on the custody of children.
Rejecting the contention, the Bench pointed out that as the children were ordinarily residents of Australia, no elaborate enquiry into the merits of the rival contentions was called for and it would be appropriate to allow the courts of the country of the minors’ natural habitat to decide upon custody.
However, the judges said the disposal of the petition would not preclude the father of the children from his taking recourse to such proceedings as available in law. They also pointed out that he could not have recourse to proceedings under section 17 of the Guardians and Wards Act, 1890, as the minors were not ordinarily resident in India.
The court also directed him to handover the passports of children to the mother.
