The twin boys, who are 15 years old, also told the Court that they wished to stay with their mother in India.
The High Court then said that the foreign court’s order will not act as a bar on statutory courts in India to adjudicate over the woman’s pleas.
Justice Subramaniam said that merely because a foreign court had taken a particular view on an aspect concerning the welfare of the minors, courts in India do not need to “shut out an independent consideration of the matter.”
“Objectivity and not abject surrender is the mantra in such cases. Judicial pronouncements on the subject are not on virgin ground. Since no system of private international law exists that can claim universal recognition on this issue, Indian courts have to decide the issue regarding the validity of the decree in accordance with the Indian law. Comity of courts simply demands consideration of any such order issued by foreign courts and not necessarily their enforcement,” the High Court said.
The Hindu Marriage Act and Domestic Violence Act are the welfare legislations for women, the Court underscored.
“The rights of the parties to get reliefs under the Special Enactments / Personnel Laws need not be denied by the Courts. The Hindu Marriage Act and Domestic Violence Act are the welfare legislations for women and therefore, the respondent / wife need not be deprived off from getting reliefs under the Acts, for which, she is entitled. In the present case, the respondent and the twin children aged about 15 years are residing at Chennai for more than two years and raising several allegations against the revision petitioner / husband and more so, the respondent alleges that they are being harassed by the revision petitioner, who is not maintaining the children as of now and further, economic abuse is also alleged. The nature and scope of Habeas Corpus Petition is incomparable with the proceedings under the Hindu Marriage Act and Domestic Violence Act. Thus, right to seek relief under the Special Enactments by the aggrieved woman shall not be taken away and in the event of preventing the woman, the same would result in infringement of her basic rights under the Constitution and the Special Enactments,” the HighCourt said.
The Court also said that its “conscience” could not permit it to forcibly send the two boys to America. Besides, the Court is bound by law to protect the interests of OCI card holders, it said.
Senior counsel G Rajagopalan appeared for the petitioner husband.
The woman appeared as a party in person.
Source: Barandbench
