Full Text
HIGH COURT OF DELHI
Date of Decision: 26th September, 2024
YASIR AYAZ .....Petitioner
Through: Mr. Khalid Akhtar, Mr. Abdullah Akhtar, Mr. Maaz Akhtar & Mr. Mohd. Shadan Advs. (M:
9199659368)
Through: Mr. Sanjay Lao, Standing Counsel (Criminal)
& Mr. Abinav Kumar Arya, Advs.
Mohd Javed & Mohd Faiz Ansari, Advs. for R-2. (M: 8810244342)
Prathiba M. Singh, J. (Oral)
JUDGMENT
1. This hearing has been done through hybrid mode. CRL.M.A. 29111/2024 (for exemption)
2. Allowed, subject to all just exceptions. Application is disposed of.
3. The Petitioner – Mr. Yasir Ayaz has filed the present petition under Article 226 of the Constitution of India read with Section 528 of B.N.S.S. seeking issuance of a writ in the nature of habeas corpus for production of his two minor sons, who are stated to be British nationals and are currently in the custody of his wife, Respondent No.2 - Ms. Shazia. 19:45
4. The case of the Petitioner is that he and Respondent No. 2 had met in the U.K. in 2006, and had got married in 2011 as per Islamic Law in Saudi Arabia. The marriage was also registered in the U.K. in March 2012. The Petitioner was granted British Citizenship in 2016 and subsequently Respondent No. 2 was also granted British residence. They have two sons from the wedlock and according to the Petitioner, they had never travelled to India after their marriage.
5. It is stated that in August, 2023 with the consent of the Petitioner, Respondent No. 2 and the children travelled to India to meet the family of Respondent No.2, who are residents of Delhi. Thereafter, however, Respondent No. 2 has refused to go back with her children to the U.K.
6. Respondent No. 2 has also filed a custody petition in the Karkardooma Courts being Guardianship Petition No. 47/2023. As per ld. counsel for the Petitioner, the Petitioner made repeated efforts to call back Respondent No. 2 and the children. However, she has refused to go back. Currently, it is stated that the Respondent No. 2 is residing with her sister in Delhi along with both children.
7. The Petitioner thereafter moved before the High Court of Justice, Family Division (hereinafter ‘U.K. High Court’) seeking return of the children. On 14th August, 2024, the U.K. High Court, passed a detailed order declaring that the children, who are British Passport holders, shall remain wards of the U.K. High Court. The U.K. High Court has observed as under: “DECLARATIONS
7. The children, and remain Wards of this Honourable court.
8. The children 19:45 and are British nationals and hold British passports.
9. The children and were, on the date that they were removed from this jurisdiction, habitually residence in the jurisdiction of England and Wales.
10. The High Court of England and Wales has the sole and substantive welfare jurisdiction over and in respect of the children, and.
11. The courts of England and Wales have such jurisdiction, pursuant to Article 5 of the Hague Convention 1996 and the Family Law Act 1986 to deal with all matters relating to the children’s welfare. The courts of England and Wales are also the appropriate forum for determining all matters relating to the children’s welfare.
12. The children and have been wrongfully retained in India by the mother.
RESPECTFUL REQUESTS
13. A respectful request is made to the Indian Courts to stay all proceedings initiated by the mother which concern the children.
14. A respectful request is made to the British Embassy in India to assist in ensuring the return of the children to this jurisdiction, in accordance with the terms of the below return order.
15. A respectful request is made to the Indian courts and other authorities (including police and social services) 19:45 to assist in ensuring the return of the children to this jurisdiction, in accordance with the terms of the below return order. XXX Interim contact
19. The mother must make the children available for video contact with the father on at least two occasions each week, on Wednesday and Saturday, at 5pm local time (local to the children).”
8. Issue notice. Notice is accepted by Mohd. Javed, ld. counsel on behalf of the Respondent No.2.
9. It is directed that the wife – Respondent No.2 and the two children shall appear before the Court on the next date of hearing along with their respective original passports.
10. In the meantime, since the Petitioner is stated to have not spoken to his children for some time, and considering the directions contained in paragraph 19 of the UK High Court order dated 14th August, 2024, extracted above, it is directed that the Respondent No.2 shall adhere to the directions given in paragraph 19 of the said order.
11. In addition, it is also directed that the Respondent No.2 shall make the children speak on video call to the Petitioner/father today as per convenience.
12. List on 3rd October, 2024.
PRATHIBA M. SINGH JUDGE AMIT SHARMA JUDGE SEPTEMBER 26, 2024/dk/ms/pr 19:45