Case BriefsHigh Courts

Rajasthan High Court: The Division Bench of Mohammad Rafiq and Goverdhan Bardhar, JJ. dismissed a habeas corpus Petition filed by the petitioner-husband praying for a direction to the respondent- wife to produce before the court the minor child who was a permanent resident of Canada and a citizen of US and cause his return along with the respondent-wife to the jurisdiction of the Court of Canada in compliance of the orders passed by the Superior Court of Justice, Family Court Hamilton, Ontario.

The facts of the case are that the petitioner-husband had alleged that the respondent-wife had wrongly removed their son from his custody. The wife had moved from Ontario, Canada, the place where the three of them were residing at that time, to New York. She then shifted to New Jersey and finally to India along with the son, who was 4 years old at that time. The petitioner challenged this and sought for his custody and his documents like passport, etc. A habeas corpus petition was filed by the husband petitioner, demanding that the wife be directed to produce before the court their son, who was a permanent resident of Canada and was a US citizen, in compliance with orders passed by the Superior Court of Justice, Family Court Hamilton, Ontario. The Canadian Court had also directed various law enforcement agencies including INTERPOL to enforce the custody order. A warrant was also issued against the wife, with imposition of cost of $30,000 upon her.

The High Court, upholding the previously settled law observed that the law has sufficiently developed to rule that despite a pre-existing order for return of a child by a foreign court, the High Court may decline relief for such return. The Court further asserted that the issue should be considered bearing in mind the welfare of the child.

The High Court dismissed the petition of the father stating that the child’s return would not be in his best interests. It observed that if he was forced to go back to Canada in the sole care of his father, it is likely to psychologically disturb him, particularly when he will be required to now adapt to an education system of that country. This would adversely affect his overall growth and grooming as in the absence of his mother.

The Court while dismissing the petition held that  the Court in India are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. The removal of the child from Ajmer, after he has stayed there for a few years now, would not be in his best interests, especially in view of the fact that he is suffering from chronic asthma and amblyopia. It further opined that it cannot hold the wife guilty of contempt as she cannot be solely held responsible for violation of the settlement terms. The Court gave directions allowing the father to maintain contact with his son. Till the time the child attains majority he shall be kept in the custody of his mother in India. [Naveen Sharma v. State of Rajasthan, 2019 SCC OnLine Raj 63, Order dated 11-01-2019]

Case BriefsHigh Courts

I appeal to all the Hindu people of both the Barak Valley as well as the Assam Valley to come together to find an amicable solution because our culture, traditions and religions are same. We should not hate each other just on the basis of language.”

-S.R. Sen, J.

Meghalaya High Court: While disposing of a writ petition concerning the difficulties faced by the residents to get Domicile Certificate (DC) and Permanent Residence Certificate (PRC), A Single Judge Bench comprising of S.R. Sen, J. opined that “National Register of  Citizens (NRC) process is defective as many foreigners became Indians and original Indians were left out.” The “horrific conditions” in Detention Camps where NRC non-qualifiers are sent also found mention in the judgment.

While dealing with the matter, the learned Judge laid focus on the plight of migrants in the State of Assam. He called out the history of formation of the State and the unfortunate partition and it’s after effects on the society. Detailing the change of territories after partition and reposing confidence in idea of India the Judge mentioned, “Pakistan declared themselves as an Islamic country and India since was divided on the basis of religion should have also been declared as a Hindu country but it remained as a secular country.” In later part of his judgment, the Judge further mentions, “I make it clear that nobody should try to make India as another Islamic country, otherwise it will be a dooms day for India and the world.”

He also requested the Prime Minister, Home Minister, Law Minister and the Members of Parliament to “bring a law to allow the Hindus, Sikhs, Jains, Buddhist, Christians, Parsis, Khasis, Jainitias and Garos who have come from Pakistan, Bangladesh and Afghanistan to live in this country peacefully and with full dignity without making any cut off year and be given citizenship without any question or production of any documents.”

In the same stroke the Judge made clear that, “However am not against my Muslim brothers and sisters who are residing in India for generations and abiding Indian laws, they should also be allowed to live peacefully.”

Highlighting the need of a uniform law, he said, “Anybody opposing the Indian Laws and constitution, they cannot be considered as citizens of the country. We must remember that first, we are Indians, then good human beings and thereafter comes the community we belong.”

In the instant case, the petitioner was a resident of Shillong for the last three generations and applied for domicile certificate, but it took ten months to get the domicile certificate only after the intervention of the High Court. Notifications issued by the Meghalaya Government were also brought to notice to the Court according to which for issuing of PRC, a person may be deemed to be a permanent resident if he continuously resides in the same place for not less than 12 years. This was in contravention of the guidelines passed by the Supreme Court and the High Court in earlier cases. Setting aside the notifications and following the case of Rabbe Alam v. State of Meghalaya, 2016 SCC OnLine Megh 301, the Court held that:

(i)a person residing in the State of Meghalaya permanently or at least for the last five years has got every right to apply for the domicile certificate; (ii) a person coming on transfer to serve the State can apply for DC prior to 5 years; (iii) a person residing permanently in the State of Meghalaya for the last 12 years and has an intention to reside permanently, he should be granted PRC without any further questions; (iv) DC or PRC is granted for all purposes.

The matter was disposed of with above observations and directions. [Amon Rana v. State of Meghalaya, 2018 SCC OnLine Megh 274, decided on 10-12-2018]