Corpus Would Be Treated As Illegal Migrant In India: Rajasthan HC Allows Habeas Corpus Plea Of Father Whose Son Was US Citizen

The Rajasthan High Court allowed the Habeas Corpus Petition filed by a father whose son was a U.S. Citizen and provided his custody to him.

The father sought for the release of his minor child from illegal custody of his wife and others and for directing his return to the country of his birth and citizenship i.e., United States of America.

A Division Bench comprising Justice Pankaj Bhandari and Justice Shubha Mehta observed, “We are of the considered view that petitioner is entitled to have the custody of his child and the welfare of the child is with the petitioner. In India, corpus would be treated as an illegal migrant and could be deported any time at the wish of the Authorities. He would not be having the status of a citizen of India and there would be many riders in his staying in India.”

Senior Advocate Shadan Farasat and Advocate Tarun Agarwal appeared for the Petitioner while Senior Advocate V.R. Bajwa and Advocate Snehdeep Khyaliya appeared for the Respondents.

Facts of the Case -

The Petitioner sought issuance of a Writ of Habeas Corpus for the custody of his son The prayer sought for in the Habeas Corpus Petition was for directing the release of the minor child from illegal custody of the Respondents and for directing his return to the country of his birth and citizenship, USA. Further, to hand over all the official documents of child, including his original passport, visa, etc. to the Petitioner. It was contended that the Petitioner’s son was born in 2018 in USA. He was a U.S. citizen, having a passport issued by the authorities. When the Petitioner’s son was aged less than three months, he came to India with her mother with a return ticket.

However, the mother instead of returning back to the U.S. with her son, filed a Petition before the Family Court under Sections 7, 10 & 11 of the Hindu Minority and Guardianship Act. It was further contended that when the wife did not return to U.S., the Petitioner moved a Petition before the Juvenile and Domestic Relations District Court of Fairfax County, Virginia, USA seeking custody of his son. The Application filed for custody before the U.S. Court was allowed and a final custody order was passed in favour of the Petitioner. The Petitioner then filed a habeas corpus petition before the Apex Court which was dismissed and hence, he filed a Petition before the High Court.

The High Court in view of the facts and circumstances of the case, said, “The judgments cited by counsel for the respondents are differing on facts. Rohan Rajesh Kothari Vs. State (supra), wherein it was held that custody issue should be resolved by Family Court will not apply as the child does not ordinarily reside at Jaipur and Courts in Jaipur/ India do not have jurisdiction to entertain his custody application. In the present case, Rudra is a U.S. citizen and there is a final custody order from the competent U.S. Court much prior to the order passed by the Family Court, Jaipur.”

The Court noted that in case, the custody is handed over to the parents of the Petitioner, parents of the Petitioner would take the corpus to the U.S. within four weeks of taking custody of the corpus.

Accordingly, the High Court allowed the Habeas Corpus Petition and provided custody of the corpus to the Petitioner.

Cause Title- ABC v. State of Rajasthan & Ors. (Neutral Citation: 2024:RJ-JP:47816-DB)

Appearance:

Petitioner: Senior Advocate Shadan Farasat, Advocates Tarun Agarwal, Bhaskar Agrawal, and Mitali Karwa.

Respondents: Senior Advocate V.R. Bajwa, Advocates Snehdeep Khyaliya, Sonal Singh, GA-cum-AAG Rajesh Choudhary, and AAAG Aman Kumar.

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