Chennai: Madras High Court has dismissed a petition by a man to declare as binding on his wife the judgement of a US court in a matter of him seeking permanent custody of his minor child, saying it was not conclusive and binding on her and also not enforceable within jurisdiction of Indian courts.
Justice Pushpa Sathyanarayana stated this recently while dismissing a civil suit and original petition by PK Srikumar seeking a declaration to the effect that the May 1, 2012, ex- parte order/judgement by the Superior Court of California, County of Orange, is conclusive and binding on his wife and enforceable within jurisdiction of Indian courts.
He also sought a consequential declaration that he is the natural guardian and legal custodian of his minor son.
The judge said that in view of the fact that the child was brought up by the wife right from 2011, she would be the proper person to have permanent custody of the child.
Therefore, the judgement of the foreign court is not conclusive and binding on the wife, the defendant, and also not enforceable against her within the jurisdiction of Indian courts, the judge said.
Srikumar and Harshita got married on August 31, 2007, and went to the USA. Their son was born on November 16, 2008.
Srikumar alleged that after the birth of their child, his wife behaved indifferently and was treated in many hospitals for depression. They then came to India and she stayed with her parents and refused to to go to the USA due to a delay in the stamping of her passport by the US Embassy.
So, he along with his parents and child left for the USA on November 19, 2009.
There was a one-and-a-half year gap and even his efforts to get her Permanent Resident Status in USA went in vain. So, he came to India on July 11, 2011 with his father while his mother and his minor came to India on August 13, 2011.
On his return home, he came to know that his wife was employed at a software firm in Chennai from April, 2010. On September 8, 2011, while on a break at Singapore en route to US with his mother and son, he was informed that his sister, her husband and her father-in-law were detained by police here on a demand to hand over the child to his wife whereupon he returned to India midway.
At the airport, his mother was detained by police for a complaint of cruelty. His child was taken away by police and later handed over to the woman "under threat and coercion" and his passport seized, he said.
The man said he initiated proceedings on October 7, 2011,
before the US court and got an ex-parte order for interim custody that day. A notice, copies and documents were served on his wife on January 25, 2012, to which she replied. Mediation efforts on April 20, 2012, over phone proved useless.
The judge noted that the plaintiff was a green card holder and his wife was on H1B1 visa and had to come back to India upon its expiry. The child was accorded US citizenship by birth. But on the date the mother took custody, the child was in India and, as such, only Indian laws were applicable.
The judge ruled that the boy shall remain with the mother and the father could visit him after due advance intimation.
"Though the father invoked the jurisdiction of the foreign court, he has not obtained any substantive order in his favour. It is only an interim order, which cannot be said to be valid because on the date of obtaining such order, the custody of the child was with the mother in India," the judge said.
The judge also found fault with the man, who managed to get green card and visa for his parents, but expressed inability to do so for his wife.