PRINCE RICHARD KOFI ATIGBOR v. THE STATE OF KARNATAKA

(BY SRI. B.A. BELLIAPPA, SPP A/W. SRI. M.V. ANOOP KUMAR, HCGP FOR R1 TO R5; SMT. SONIA RAJESH, ADVOCATE FOR R6) …RESPONDENTS THIS WP(HC) IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, BY THE PETITIONER, WHEREIN HE PRAYS THAT THE HON'BLE COURT MAY BE PLEASED TO ISSUE A WRIT OF HABEAS CORPUS AND DIRECT THE RESPONDENTS No.1 TO 5 TO INVESTIGATE AND TRACE GABRIEL ELIJAH ATIGBOR, SON OF THE PETITIONER HEREIN, AND PRODUCE BEFORE THIS HON'BLE COURT AND HANDOVER THE CUSTODY OF GABRIEL ELIJAH ETIGBOR TO THE PETITIONER AND ETC. THIS WP(HC) HAVING BEEN HEARD AND RESERVED FOR FOR JUDGMENT ON PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN J., PRONOUNCED THE FOLLOWING: AND COMING ON

25.11.2024 - 3 CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN HON'BLE MR. JUSTICE UMESH M ADIGA CAV JUDGMENT (PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN) Heard Shri. K. Ravishankar, learned Counsel appearing for the writ petitioner, Shri. B.A. Belliappa, learned SPP along with Shri. M.V. Anoop Kumar, learned High Court Government Pleader appearing for respondents No.1 to 5 and Smt. Sonia Rajesh, learned Counsel appearing for respondent No.6.

2. This writ petition is filed seeking for issuance of Habeas Corpus and direct respondents No.1 to 5 to investigate and trace Gabriel Elijah Atigbor, son of the petitioner and produce before this Court and handover custody of the minor child to the petitioner.

3. It is submitted that the petitioner, a citizen of Ghana residing in Dubai, UAE, married the sixth respondent, an Indian citizen from Bengaluru, on 19.04.2018, under the Foreign Marriage Act, 1969. The marriage was solemnized and registered at the Consulate General of India in Dubai. A - 4 male child by name Gabriel Elijah Atigbor was born on

24.01.2019, to the couple, who is presently aged about 3.9 years. The petitioner, sixth respondent and their child lived together in Dubai until 14.03.2021, while the sixth respondent took custody of the child without consent and absconded. On 02.04.2021, she fled from Dubai, UAE to Qatar and later Qatar to Muscat, the sultanate of Oman and ultimately returned to Bengaluru on 13.11.2021, despite a summons Muscat Court Case No.2021/1109/330, where the petitioner sought the return of his wife and son.

4. It is submitted that following her return to India, the sixth respondent ceased communication with the petitioner, depriving him of access to his child. Allegedly, the sixth respondent lacks financial resources to ensure the welfare of the child. This led the petitioner to file a divorce petition in Dubai Court, First Instance (for short 'Dubai Court'), in Case No.399/2021. A decree of divorce was granted on 28.04.2022, declaring the petitioner was entitled to the custody of the child. Despite receiving summons and - 5 participating in virtual hearings, the sixth respondent did not challenge the decision. The sixth respondent failed to comply with Court orders. The petitioner also alleges the possibility of illegal confinement by the sixth respondent or her relatives.

5. It is also submitted that a complaint regarding Gabriel’s disappearance was lodged with Indian authorities on 03.10.2022. Despite acknowledgments of receipt, no investigative progress has been reported. The petitioner contends that the sixth respondent’s actions contravene decrees by Courts in Muscat and Dubai, violating principles of comity of Courts and undermining the child’s welfare. Relying on precedents, including the Apex Court judgment in Yashita Sahu v. State of Rajasthan and others reported in AIR 2020 SC 577, the petitioner asserts that the sixth respondent cannot seek refuge under Indian law to violate foreign judgments. The writ of habeas corpus is filed seeking Gabriel’s custody, highlighting the irreparable harm caused by son's separation from the petitioner and the risk of illegal detention. - 6

6. The learned counsel appearing for the petitioner has relied on the following decisions:- • Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu and Others, reported in 2022 SCC OnLine SC 885; • Dr. Rajeev Giri v. State of Karnataka and others, by Order dated 07.06.2023 passed in W.P.H.C. No.30 of 2023; • Y. Narasimha Rao and Others v. Y. Venkata Lakshmi and Another, reported in (1991) 3 SCC 451; • Shilpa Aggarwal v. Aviral Mittal and another, reported in 2009 (8) SC 430; • Arathi Bandi v. Bandi Jagadrakshaka Rao and others, reported in AIR 2014 SC 918; • Surya Vadanan v. State of Tamil Nadu and Others, reported in (2015) 5 SCC 450; • Yashita Sahu v. State of Rajastan and others, reported in AIR 2020 SC 577; and • Rohith Thammana Gowda v. State of Karnataka and others, by Order dated 29.07.2022 passed in Civil Appeal No.4987/2022.

7. It is contended by the learned counsel appearing for respondent No.6 that her departure from Dubai with the child, Gabriel Elijah Atigbor, on 02.04.2021, was with the - 7 knowledge and consent of the petitioner. The sixth respondent denies allegations of absconding or evading Court orders. She asserts that her travel to Muscat and later to India was necessitated by the physical, emotional and psychological abuse inflicted by the petitioner, which also adversely impacted the child. The petitioner imposed an unlawful travel ban on Gabriel which is contrary to UAE law and restricts such bans to Emirati fathers under Article 29 of the UAE Constitution. It is also contended that the petitioner coerced her into withdrawing her own divorce case (Case No.215/2021) in Dubai, in exchange for removing the travel ban. The petitioner subsequently filed a divorce case in Dubai Court (Case No.399/2021) to alienate her from the child.

8. It is contended that the judgment of the Dubai Court, granting custody to the petitioner is based on Shariah law, which is inapplicable to the parties, who are Christians married under the Foreign Marriage Act, 1969. Further, she was not informed about the decree until October 2022, and she filed a custody case (G&WC 224/2022) in V Additional - 8 Family Court, Bangalore, on 25.07.2022. Referring to the principle of “welfare of the child,” the sixth respondent placed a reliance on Nithya Anand Raghavan v. State (NCT of Delhi) and another, reported in (2017) 8 SCC 454, Kanika Goel v. The State of Delhi through, Station House officer and another, reported in (2018) 9 SCC 578, and Prateek Gupta v. Shilpi Gupta and others, reported in (2018) 2 SCC 309.

9. The said judgments affirm that Foreign Court decrees do not override the paramount consideration of a child’s welfare. The sixth respondent emphasizes that Gabriel’s welfare lies in her custody, as she has consistently provided care, education and therapy for him over the past two years without support from the petitioner. She further emphasizes that as per Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the mother is the natural guardian of a minor, below the age of five. The said principle is upheld in the case of Roxann Sharma v. Arun Sharma reported in AIR 2015 SC 2925. - 9

10. Reliance is also placed on the judgments in Ruchi Majoo v. Sanjeev Majoo, reported in (2011) 6 SCC 479 and Sarita Sharma v. Sushil Sharma, reported in (2003) 3 SCC 14, which highlights that technicalities of foreign judgments must yield to the welfare of the minor child. She asserts that despite the petitioner’s claims, Indian Courts hold jurisdiction in determining custody matters, regardless of the child’s Nationality and residence or previous decrees passed by the Dubai Court.

11. The learned counsel for respondent No.6 has also placed reliance on the Apex Court judgment in Sarita Sharma v. Sushil Sharma reported in (2003) 3 SCC 14, wherein it was held that even a decree passed by a Foreign Court could not override the consideration relating to the welfare of the minor child. The sixth respondent highlights precedents from Chandima Janaka Wijesinghe v. Union of India and Ors., CRWP No. 547/2021 and Mansi v. State of Punjab, CRWP 7332 of 2022. These judgments prioritize the custody rights of the mother, particularly for children below the age of five, unless proven unfit. She - 10 contends that the petitioner has failed to establish any valid grounds disqualifying her as the primary caregiver.

12. It is contended that the sixth respondent highlights instances of domestic violence during her pregnancy and after Gabriel's birth, alleging that the petitioner neglected and mistreated her and the child. She claims that the petitioner forced her to leave the marital home and later used the judgment of the Dubai Court to alienate her from Gabriel. The sixth respondent has filed a custody case (G & WC No.224/2022) in V Additional Family Court, Bengaluru, on 25.07.2022. She asserts that this matter should be resolved under Indian jurisdiction, as prescribed in Nithya Anand Raghavan's case (supra) and other cases, where the welfare of the minor child takes precedence over technicalities like comity of Courts or foreign decrees.

13. Addressing the petitioner’s claims of ignorance about the sixth respondent’s whereabouts, the sixth respondent contends that the petitioner knowingly provided her detailed address in this writ petition, contradicting his - 11 assertions. Furthermore, police officials at the Koramangala Police Station are aware of her residence. The sixth respondent contends that the petitioner has made no genuine efforts to contact the child, revealing his ulterior motive to harass her.

14. Having considered the contentions advanced and in the peculiar facts and circumstances of the instant case, we are of the opinion that the pending child custody case in the Bangalore Family Court must proceed to determine the child’s best interest. It is clear that the petitioner - father is perfectly well aware that the child is in the custody of the mother. The child is aged less than five years and there is no concern raised as to the safety of the child in the hands of the mother. It is also clear that the matter is pending consideration before the Family Court. Though, petitioner contends that he is a foreign citizen and is employed in Dubai, there is no reason why he cannot participate in the custody proceedings Online since such an option appears to be available in Family Court matters on an appropriate request being made in that regard. We are of - 12 the opinion that it is for the petitioner to raise all his contentions before the Family Court, where the Guardian and Wards Case is pending. His contention with regard to applicability and violation of the foreign judgments are also matters which can be considered by the Family Court and orders passed taking note of the best interest of the child as well.

15. In the above circumstances, we are of the opinion that this is not a fit case for exercise of the extra-ordinary jurisdiction of this Court for issuance of habeas corpus to produce the child from the custody of its mother. Leaving open all the contentions of the petitioner to be agitated in appropriate proceedings, this Writ Petition stands dismissed. Pending IAs, if any, stand disposed of. Sd/- (ANU SIVARAMAN) JUDGE Sd/- (UMESH M ADIGA) JUDGE cp*