The Madras High Court dismissed a revision petition filed by a United States citizen against his wife who was residing in India temporarily.

The Court said that the Overseas Citizens of India i.e., the OCI cardholders are entitled to relief under the Domestic Violence Act.

A Single Bench of Justice S.M. Subramaniam held, “Section 27 unambiguously stipulates that aggrieved person temporarily residing or carrying out business or employed is also falling within the ambit of the Domestic Violence Act, 2005. Therefore, a person, who is temporarily residing in India or Overseas Citizen of India, if abused economically by the spouse, who is residing in other country, is entitled to seek relief under the Act. The cause of action arouses in India, since the aggrieved person is residing in India.”

The Bench said that the Domestic Violence Act provides various reliefs to the aggrieved woman under different circumstances and is a continuing cause of action.

“The allegations relating to custody of children and matrimonial disputes are continuing cause and, therefore would not preclude the respondent from seeking reliefs under the Domestic Violence Act and Hindu Marriage Act, which is independent and the nature of proceedings and the procedures contemplated are distinct and different. Thus, the order passed in the Habeas Corpus Petition by this Court cannot be a bar for seeking further or other reliefs contemplated under the Domestic Violence Act and the Hindu Marriage Act”, the Court further held.

The Court also observed that when the matured minors, aged about 15 years can take a clear decision about their future, forcible handing over of the boys to the petitioner presently residing in the USA would be detrimental to their interest and future life.

Senior Advocate G. Rajagopalan appeared on behalf of the petitioner while the respondent appeared in person.

Brief Facts –

The petitioner sought that the proceedings initiated by his estranged wife i.e., the respondent before a Mahila Court in Chennai be quashed. The respondent, an OCI card holder, and their twin sons had come to India last year on the pretext of a short visit to Chennai but then stayed back in India with an intention of never returning to the USA. An American Court granted an ex parte divorce decree and granted the petitioner the custody of the twin boys. The petitioner prayed that all connected proceedings that the respondent had initiated in India cannot be sustained.

The petitioner contended that a Single Judge cannot re-examine the boys. The woman, however, argued that she was a victim of physical and emotional abuse at the hands of her estranged husband and she had no intention of returning to America. The twin boys also told the Court that they wished to stay with their mother in India.

The High Court after hearing the arguments of both parties asserted, “Foreign judgment is not the conclusive one and it is a factor to be considered, while considering the best interest of the child along with the wishes, more specifically, expressed by the Child of Intelligence of Maturity. Considering those judgments of the Supreme Court and the spirit of the principles laid down, this Court is of the humble opinion that the directives issued in the Habeas Corpus Petition (HCP) proceedings are running counter to those principles laid down by the Hon'ble Supreme Court of India and the judgments of the Supreme Court are binding precedents as far as this Court is concerned.”

The Court noted that it cannot solely consider the order passed in the HCP and strike off the petitions filed by the respondent-wife in the Indian Courts for restitution of conjugal rights and under the Domestic Violence Act, for various reliefs including custody of children.

“… the directives in any other proceedings denuded to loose its status as binding orders, as far as the reliefs to be considered under the Domestic Violence Act and the Matrimonial Laws are concerned. … 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”, the Court further noted.

It was also observed by the Court that the nature and scope of the Habeas Corpus Petition is incomparable with the proceedings under the Hindu Marriage Act and Domestic Violence Act.

“… 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. … In the event of denying relief to an aggrieved woman under the Special Statutes enacted for the welfare of the women, it would result in miscarriage of justice and the basic right to life and liberty protected under the Indian Constitution and Special Enactments for women would be violated.”, the Court held.

The Court said that when Overseas Cardholders are entitled to live in India indefinitely for their lifetime, they cannot be forced to leave India along with their children, which is in violation of the Fundamental Rights guaranteed to them under the Constitution.

“… the Court cannot compel any Overseas Cardholder to leave India except by an Authority of Law. … As far as the ex parte orders of US Courts are concerned, though the foreign judgments are not conclusive and it is only a factor to be decided, the facts and circumstances would reveal that the respondent as well as the twin children have taken a decision to reside at Chennai peacefully and they are not interested to return back to United States as they are terribly afraid of going back, since they have no trust on the revision petitioner. In the event of sending them back to United States, forcibly, they will be practically on the streets in United States and the conscious of this Court does not permit to take such a decision, since the rights ensured under the Indian Constitution to the OCI Cardholders are to be protected”, the Court further said.

The Court, therefore, granted interim custody of the twin boys in favour of the respondent until the matrimonial disputes and domestic violence proceedings are disposed of on merits.

Accordingly, the Court dismissed the revision petition.

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