The Bombay High Court recently directed the Union of India to nominate nodal officers in the Ministry of Home Affairs and the Ministry of Law and Justice who will be responsible for ascertaining progress made in terms of service of notices and orders sent to foreign countries by courts in India. The court has sought that the names of the nodal officers be communicated to the registrars of all high courts by early next month.
The directions were given when a division bench of Justice A S Oka and Justice Anuja Prabhudesai was hearing an appeal filed by a man against a family court order in his application for granting permanent custody of his son that was rejected by the court. The man’s estranged wife and son live in the USA.
“We find that in large number of matters, notices are sent by court to foreign countries either through the Ministry of Home Affairs or through the Ministry of Law and Justice. However, there is no arrangement made by the ministries to communicate to the respective registrars of the high courts about the progress made in service of notices or orders. We, therefore, direct both ministries to appoint nodal officers so that the registrars or courts can contact the officer to get requisite information about the service of such notices,” said the court.
The man got married in London in 1999 and in 2002, the couple had a son in North Carolina in the United States of America. Since there were constant fights between them, the couple decided to stay separately.
While hearing the matter, the court directed for a temporary custody of the child to be given to the father from August 10 to 19 this year and sought that the boy be brought to India by the mother for implementation of the orders.
The court pointed to the Hague Convention of 1965 in civil and criminal matters stating that the Central Authority in the United States of America has authorised an agency by the name Process Forward International and according to communication by the government, all summons and orders are to be sent directly by the courts to the said agency, Process Forward International.
“The order, along with that of civil application, shall now be forwarded by the registrar (judicial) to the agency of the Central Authority, USA,” ordered the court.
Moreover, it has directed the department of Law and Justice of the Government of India to take up the matter with the Central Authority of the North Carolina State, USA, in terms of Article 5 of the treaty signed between the two governments on October 17, 2001, on mutual legal assistance in criminal matter. “Article 5 in the treaty applies to the execution of requests. The Central Authority be requested to execute this order,” added the bench. While disposing of the matter, the court has asked for copy of the orders to be served on the wife also.
The woman then filed an application for custody in USA court. Her husband alleged that an ex-parte order of the custody of the minor was passed by the said court. Subsequently, in 2002, the father brought the child to India for performing religious ceremony. Meanwhile, the woman filed a petition for divorce in which ex-parte decree was passed. The applicant could not go back to USA as criminal proceedings had been initiated by his wife.
In June 2007, the wife came to India and filed a petition for Habeas Corpus seeking custody of the child and by the order of the Gujarat High Court, the husband handed over the custody of his son to the wife.
However, he was permitted to file a petition for custody that was filed by him at Navsari, Gujarat, which was dismissed. Thereafter, an application was filed by him in the Family Court at Pune that did not grant him custody of the child but laid down certain other conditions in terms of custody. But the same order could not be implemented.