# RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF TAMIL NADU & ORS

- **Citation:** [2022] 5 S.C.R. 232
- **Court:** Supreme Court of India
- **Decided:** 2022-07-14
- **Bench:** A. M. Khanwilkar, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajeswari-chandrasekar-ganesh-v-the-state-of-tamil-nadu-ors-36417
- **Pages:** 59

## Headnote

Constitution of India - Art.32 - Writ of Habeas Corpus -
Object and scope of - Custody of minor children - Parties having
two minor children have been residing in the USA - As per the
petitioner-mother, the respondent no.2-father picked up the minor
children and left for Michigan, USA, from Cleveland, Ohio, without
informing her - A shared parenting plan was arrived at between
the parties by the order passed by the Court at Ohio - Case of the
petitioner is that the respondent no.2 clandestinely and with a view
to remove the children from the USA and from the joint custody of
the petitioner, left for India with the two minor children - Present
petition filed by her seeking a Writ of Habeas Corpus - Held: The
employment of the writ of Habeas Corpus in child custody cases is
not pursuant to, but independent of any statute - Jurisdiction
exercised by the court rests in such cases on its inherent equitable
powers and exerts the force of the State, as parens patriae, for the
protection of its minor ward, and the very nature and scope of the
inquiry and the result sought to be accomplished call for the exercise
of the jurisdiction of a court of equity - Primary object of a Habeas
Corpus petition, as applied to minor children, is to determine in
whose custody the best interests of the child will probably be
advanced - In the present case, the petitioner is a resident of the
USA and has acquired H1B visa via sponsorship and has a good
job in USA - She is earning handsome salary and has the resources
to provide for a comfortable life to her children in the USA - She is
comfortably settled in the USA and is accustomed to different kind
of lifestyle, culture, society, etc. - She is a hard working woman
and would be in a position to take good care of her minor children
in accordance with the shared parenting plan - Allegations levelled
by the respondent no.2 that the petitioner suffers from mental illness
appear to be wild and reckless - Even otherwise this is a highly
disputed question of fact - Further, both the minor children are
[2022] 5 S.C.R. 232
232
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residents of the USA - They have been brought up in the social and
cultural milieu of the USA and are accustomed to the lifestyle,
language, customs etc. of that country - Also, both the minor children
have already been enrolled in school in the USA, a special school
meant for children with remarkably high IQ - They have better
prospects of getting refined education that may ultimately enhance
their potential they already possess and are already accustomed to
and comfortable with - It will be in the interest and welfare of both
the children to go back to the USA for the purpose of their education,
etc. - Respondent no.2 directed to go back to the USA with both the
minor children and abide by the shared parenting plan as ordered
by the Court at Ohio which though, stood terminated at the instance
of the petitioner, but can be revived once again by the authorities
by going before the concerned court at Ohio - Further directions
issued - Guardians and Wards Act, 1890 - Hindu Minority and
Guardianship Act, 1956.
Doctrines/Principles - Doctrine of Parental Alienation
Syndrome - Discussed.
Child Custody - Welfare of the child - Factors to be considered
- Discussed.
Allowing the writ petition, the Court
HELD: 1. A mere reading of the provisions of the Guardians
and Wards Act, 1890 and Hindu Minority and Guardianship Act,
1956 makes it obvious that the welfare of the minor predominates
to such an extent that the legal rights of the persons claiming to
be the guardians or claiming to be entitled to the custody will
play a very insignificant role in the determination by the court.
[Para 73][258-C]
2.1 In a petition seeking a writ of Habeas Corpus in a matter
relating to a claim for custody of a child, the principal issue which
should be taken into consideration is as to whether from the facts
of the case, it can be stated that the custody of the child is illegal.
The writ of Ha

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[2022] 5 S.C.R.
RAJESWARI CHANDRASEKAR GANESH
v.
THE STATE OF TAMIL NADU & ORS.
(Writ Petition (Criminal) No. 402 of 2021)
JULY 14, 2022
[A. M. KHANWILKAR AND J. B. PARDIWALA, JJ.]
Constitution of India - Art.32 - Writ of Habeas Corpus -
Object and scope of - Custody of minor children - Parties having
two minor children have been residing in the USA - As per the
petitioner-mother, the respondent no.2-father picked up the minor
children and left for Michigan, USA, from Cleveland, Ohio, without
informing her - A shared parenting plan was arrived at between
the parties by the order passed by the Court at Ohio - Case of the
petitioner is that the respondent no.2 clandestinely and with a view
to remove the children from the USA and from the joint custody of
the petitioner, left for India with the two minor children - Present
petition filed by her seeking a Writ of Habeas Corpus - Held: The
employment of the writ of Habeas Corpus in child custody cases is
not pursuant to, but independent of any statute - Jurisdiction
exercised by the court rests in such cases on its inherent equitable
powers and exerts the force of the State, as parens patriae, for the
protection of its minor ward, and the very nature and scope of the
inquiry and the result sought to be accomplished call for the exercise
of the jurisdiction of a court of equity - Primary object of a Habeas
Corpus petition, as applied to minor children, is to determine in
whose custody the best interests of the child will probably be
advanced - In the present case, the petitioner is a resident of the
USA and has acquired H1B visa via sponsorship and has a good
job in USA - She is earning handsome salary and has the resources
to provide for a comfortable life to her children in the USA - She is
comfortably settled in the USA and is accustomed to different kind
of lifestyle, culture, society, etc. - She is a hard working woman
and would be in a position to take good care of her minor children
in accordance with the shared parenting plan - Allegations levelled
by the respondent no.2 that the petitioner suffers from mental illness
appear to be wild and reckless - Even otherwise this is a highly
disputed question of fact - Further, both the minor children are
[2022] 5 S.C.R. 232
232
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residents of the USA - They have been brought up in the social and
cultural milieu of the USA and are accustomed to the lifestyle,
language, customs etc. of that country - Also, both the minor children
have already been enrolled in school in the USA, a special school
meant for children with remarkably high IQ - They have better
prospects of getting refined education that may ultimately enhance
their potential they already possess and are already accustomed to
and comfortable with - It will be in the interest and welfare of both
the children to go back to the USA for the purpose of their education,
etc. - Respondent no.2 directed to go back to the USA with both the
minor children and abide by the shared parenting plan as ordered
by the Court at Ohio which though, stood terminated at the instance
of the petitioner, but can be revived once again by the authorities
by going before the concerned court at Ohio - Further directions
issued - Guardians and Wards Act, 1890 - Hindu Minority and
Guardianship Act, 1956.
Doctrines/Principles - Doctrine of Parental Alienation
Syndrome - Discussed.
Child Custody - Welfare of the child - Factors to be considered
- Discussed.
Allowing the writ petition, the Court
HELD: 1. A mere reading of the provisions of the Guardians
and Wards Act, 1890 and Hindu Minority and Guardianship Act,
1956 makes it obvious that the welfare of the minor predominates
to such an extent that the legal rights of the persons claiming to
be the guardians or claiming to be entitled to the custody will
play a very insignificant role in the determination by the court.
[Para 73][258-C]
2.1 In a petition seeking a writ of Habeas Corpus in a matter
relating to a claim for custody of a child, the principal issue which
should be taken into consideration is as to whether from the facts
of the case, it can be stated that the custody of the child is illegal.
The writ of Habeas Corpus is a prerogative writ and an
extraordinary remedy. It is a writ of right and not a writ of course
and may be granted only on reasonable ground or probable cause
being shown. The exercise of the extraordinary jurisdiction for
issuance of a writ of Habeas Corpus would, therefore, be seen to
be dependent on the jurisdictional fact where the applicant
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF
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establishes a prima facie case that the detention is unlawful. It is
only where the aforementioned jurisdictional fact is established
that the applicant becomes entitled to the writ as of right. The
principal duty of the court in such matters should be to ascertain
whether the custody of the child is unlawful and illegal and whether
the welfare of the child requires that his present custody should
be changed and the child be handed over to the care and custody
of any other person. Thus, it is well established that in issuing
the writ of Habeas Corpus in the case of minors, the jurisdiction
which the Court exercises is an inherent jurisdiction as distinct
from a statutory jurisdiction conferred by any particular provision
in any special statute. In other words, the employment of the writ
of Habeas Corpus in child custody cases is not pursuant to, but
independent of any statute. The jurisdiction exercised by the court
rests in such cases on its inherent equitable powers and exerts
the force of the State, as parens patriae, for the protection of its
minor ward, and the very nature and scope of the inquiry and the
result sought to be accomplished call for the exercise of the
jurisdiction of a court of equity. The primary object of a Habeas
Corpus petition, as applied to minor children, is to determine in
whose custody the best interests of the child will probably be
advanced. In a Habeas Corpus proceeding brought by one parent
against the other for the custody of their child, the court has before
it the question of the rights of the parties as between themselves,
and also has before it, if presented by the pleadings and the
evidence, the question of the interest which the State, as parens
patriae, has in promoting the best interests of the child. [Paras
75, 78-80 and 91][258-F; 260-C-E; 265-C-E]
Mohd. Ikram Hussain v. State of Uttar Pradesh and
Others AIR 1964 SC 1625 : [1964] SCR 86; Kanu
Sanyal v. District Magistrate, Darjeeling (1973) 2 SCC
674 : [1974] 1 SCR 621; Nithya Anand Raghavan v.
State (NCT of Delhi) and Another (2017) 8 SCC 454 :
[2017] 7 SCR 281; Syed Saleemuddin v. Dr. Rukhsana
and Others (2001) 5 SCC 247 : 2001 (1) Suppl. JT 1;
Tejaswini Gaud and Others v. Shekhar Jagdish Prasad
Tewari and Others (2019) 7 SCC 42 : [2019] 7 SCR
335; Anjali Kapoor v. Rajiv Baijal (2009) 7 SCC 322 :
[2009] 6 SCR 560; Rosy Jacob v. Jacob A.
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Chakramakkal (1973) 1 SCC 840 : [1973] 3 SCR 918
- relied on.
2.2 The following circumstances emerge from the materials
on record so far as the two minor children are concerned : (1)
Both the minor children are residents of the USA. (2) The son is
a natural citizen and the daughter is a permanent resident of the
USA. (3) Both the children have been brought up in the social
and cultural milieu of the USA. They are accustomed to the
lifestyle, language, customs, rules and regulations, etc. of that
country. (4) The children are residents of the USA. One of whom
is a natural citizen and will have better future prospects if goes
back to the USA.
The minor daughter has a remarkable high IQ. She has
been identified to be a gifted child. In such circumstances, both
the minor children were admitted in a special school meant for
children with such remarkably high IQ in the USA. Such schools
in the USA are specialized in providing education to the gifted
children which, ultimately, helps in the overall development of
such children. The special education ultimately enhances the
potential of such children. Both the children in the present case
have better prospects of getting refined education that may
ultimately enhance their potential they already possess and are
already accustomed to and comfortable with. Both the minor
children, in the case on hand, have already been enrolled in the
school in the USA. Therefore, if the minor children are repatriated
to the USA, they will not be subjected entirely to any foreign
system of education. It is the fundamental right of the petitionermother to have the company of her children and not to be deprived
of the same without a reasonable cause. [Paras 108, 109, 110][278G-H; 286-F-H; 287-A]
2.3 Facts Supporting The Stay Of The Petitioner In The
USA: The petitioner is a resident of the USA and has acquired
H1B visa via sponsorship and has a good job at Ranstad, USA.
The petitioner is earning handsome salary and has the resources
to provide for a comfortable life to her children in the USA. The
petitioner is comfortably settled in the USA and is accustomed to
different kind of lifestyle, culture, society, etc. Petitioner worked
very hard to secure admission in the Cleveland State University
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and completed her studies with the GPA of more than 3, while
taking care of her children. This is indicative of the fact that she
is a hard working woman and would be in a position to take good
care of her minor children in accordance with the shared parenting
plan. It would be too much for this Court to tell the petitioner
that she may periodically visit India to meet her children but the
children should not be asked to go back to the USA with their
father, i.e. the respondent no.2. [Paras 111-113][287-B-E]
2.4 In the overall view of the matter, the respondent no.2,
at the earliest, should be directed to go back to the USA with
both the minor children and abide by the shared parenting plan
as ordered by the Court at Ohio. Although, the shared parenting
plan as ordered by the Court at Ohio stood terminated at the
instance of the petitionermother, yet the same can be revived
once again by the authorities by going before the concerned court
at Ohio. It is for the parties to take the necessary steps in this
regard. The respondent no.2 shall immediately apply for the visa
on the strength of this order. If the respondent no.2 is in a position
to obtain a job in the USA on the strength of a work permit or any
other document, then it is well and good. However, this Court is
sure of one thing that it will be in the interest and welfare of both
the children to go back to the USA for the purpose of their
education, etc. The allegations levelled by the respondent no.2
that the petitioner suffers from some mental illness appears to
be absolutely wild and reckless. Even otherwise this issue is a
highly disputed question of fact. In the case at bar the dominant
consideration to which all other considerations must remain
subordinate must be the welfare of the child. This is not to say
that the question of custody will be determined by weighing the
economic circumstances of the contending parties. The matter
will not be determined solely on the basis of the physical comfort
and material advantages that may be available in the home of one
contender or the other. The welfare of the child must be decided
on a consideration of these and all other relevant factors, including
the general psychological, spiritual and emotional welfare of the
child. It must be the aim of the Court, when resolving disputes
between the rival claimants for the custody of a child, to choose
the course which will best provide for the healthy growth,
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development and education of the child so that he or she will be
equipped to face the problems of life as a mature adult. Further
directions issued. [Paras 114, 115][287-E-H; 288-A-C]
Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC
42 : [1987] 1 SCR 175; V. Ravi Chandran v. Union of
India and Others (2010) 1 SCC 174 : [2009] 15 SCR
960; Surya Vadanan v. State of Tamil Nadu (2015) 5
SCC 450 : [2015] 4 SCR 903; Vivek Singh v. Romani
Singh (2017) 3 SCC 231 : [2017] 2 SCR 312; Vasudha
Sethi and Others v. Kiran V. Bhaskar and Another (2022)
SCC OnLine SC 43 107 - relied on.
Sumedha Nagpal v. State of Delhi (2000) 9 SCC 745 :
2000 (7) JT 450; Muthuswami Chettiar v. K.M. Chinna
Muthuswami Moopanar AIR 1935 Mad 195; Shilpa
Aggarwal v. Aviral Mittal (2010) 1 SCC 591 : [2009]
16 SCR 287; Lahari Sakhamuri v. Sobhan Kodali
(2019) 7 SCC 311 : [2019] 5 SCR 240; Surinder Kaur
Sandhu v. Harbax Singh Sandhu (1984) 3 SCC 698 :
[1984] 3 SCR 422; Dhanwanti Joshi v. Madhav Unde
(1998) 1 SCC 112 : [1997] 5 Suppl. SCR 30 - referred
to.
K. G. v. State of Delhi and Another dated 16.11.2017 in
Writ Petition (Criminal) No. 374/2017 - approved.
Secretary of State for Home Affairs v. O'Brien (1923)
AC 603 (609); Mckee v. McKee 1951 AC 352 101;
InRe: McGrath (Infants) [1893] 1 Ch. 143; Inre "O"
(An Infant) [1965] 1 Ch. 23; Walker v. Walker &
Harrison 1981 New Ze Recent Law 257 - referred
to.
Halsbury's Laws of England, Fourth Edition, Vol. 24,
Article 511; American Jurisprudence, Vol. 39, Second
Edition, Para 148 at pages 280-281 - referred to.
Case Law Reference
[1987] 1 SCR 175
relied on
Para 61
[2009] 15 SCR 960
relied on
Para 61
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[2009] 16 SCR 287
referred to
Para 61
[2019] 5 SCR 240
referred to
Para 61
[1984] 3 SCR 422
referred to
Para 61
[2017] 7 SCR 281
relied on
Para 67
[1964] SCR 86
relied on
Para 78
[1974] 1 SCR 621
relied on
Para 78
[2019] 7 SCR 335
relied on
Para 82
[2009] 6 SCR 560
relied on
Para 83
[1973] 3 SCR 918
relied on
Para 83
[2015] 4 SCR 903
relied on
Para 98
[1997] 5 Suppl. SCR 30
referred to
Para 101
[2017] 2 SCR 312
relied on
Para 106
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 402 of 2021.
Under Article 32 of The Constitution of India
Prabhjit Jauhar, Ms. Tulika Bhatnagar, S. S. Jauhar, Advs. for the
Petitioner.
Ms. Meenakshi Arora, Sr. Adv., Sushila Ram, Anurag Pandey,
Ms. Suchitra Upadhyay, Varnim Gupta, Ms. Anuradha K., Ms. Reena
Pandey, Dr. Joseph Aristotle S., Ms. Nupur Sharma, Shobhit Bhardwaj,
Sanjeev Kumar Mahara, Advs. for the Respondents.
The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
1. This writ petition under Article 32 of the Constitution of India
involves a contest over the custody of children born out of the wedlock
between the petitioner-mother and the respondent no.2-father. The
respondents nos.4 and 5 respectively are the brother and father of the
respondent no.2.
2. The petitioner-mother has prayed for the following reliefs :
"(a) Issue an appropriate writ, order or direction in the nature
Habeas Corpus to the Respondent No.1 to immediately trace
and produce the minor children Lakshaya Ganesh and Bhavin
Sai Ganesh before this Hon'ble Court and deliver their
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custody to the Petitioner Mother so as to repatriated them to
the U.S. in compliance with the Order passed by the U.S. Court
dated 30.07.2021.
(b) issue a direction to the Respondent No.3/Director of CBI
to trace the minor children Lakshaya Ganesh and Bhavin Sai
Ganesh and to produce them before this Hon'ble Court, since
the Respondent No.2 is not traceable.
(c) issue an appropriate writ, order or direction in the nature
Habeas Corpus to Respondent No.2 to cooperate with anyone
appointed by the Petitioner Ex-Wife to transport the minor
children - Lakshaya Ganesh and Bhavin Sai Ganesh to the
United States within a time frame;
(d) Pass such other order or further orders and directions as
this Hon'ble Court may deem fit and proper in the facts and
circumstances of the case and in the interest of justice."
3. The case put up by the petitioner-mother may be summarised
as under :
4. The marriage between the petitioner and the respondent no.2
was solemnized on 31st October 2008 as per the Hindu rites and rituals
at Chennai, India. Within one month from the date of the marriage, the
parties migrated to the Bear, Delaware, USA.
5. The respondent no.2, at the relevant point of time, was working
with the Satyam Computers. Sometime in May 2009, the parties were
constrained to return to Chennai, India, as the project that the respondent
no.2 had been working on with the Satyam Computers got terminated
on account of some internal issues in the company.
6. On 7th October 2009, the parties were blessed with a daughter
named Lakshaya Ganesh. It appears from the materials on record that
sometime in January 2012, the respondent no.2 was able to secure a job
in Kansas, USA. Since 2012, the parties have been residing in the USA.
7. It further appears that between April 2012 and November 2012,
the respondent no.2 lost several jobs, and in such circumstances, the
parties had to shift from Kansas, USA, to Boston, Massachusetts, USA.
Sometime later, they shifted to Findlay, Ohio, USA. In January 2012, the
minor daughter Lakshaya Ganesh started her preschool at the Owen's
Day Care, Findlay, Ohio, and thereafter, was admitted to a kindergarten
at the Lincoln Elementary School, Findlay, Ohio. While the minor daughter
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF
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Lakshaya was studying in the kindergarten, the teachers over there
noticed that Lakshaya was a gifted child, i.e. a child with a remarkable
IQ level. The parties were blessed thereafter with a son named Bhavin
Sai Ganesh on 20th July 2013 at the Blanchard Valley Hospital, Findlay,
Ohio. The minor son Bhavin Sai Ganesh is a U.S. citizen by naturalization
and holds an American passport.
8. In March 2016, the petitioner cleared her GRE and TOEFL
and secured admission in the Cleveland State University Ohio, USA.
The respondent no.2, on the other hand, lost yet another job.
9. It is the case of the petitioner that she started living in a room
with eight other girls and her minor children. She attended the university
and had to take up two jobs to feed and take care of herself and her
minor children.
10. By December 2016, both the children started going to school.
It is her case that she used to take care of her children in all respects.
Sometime in August 2016, the respondent no.2 moved for yet another
job to Milwaukee, Wisconsin, and in such circumstances, the petitioner
had to stay all alone with the minor children and take care of them.
11. In May 2018, the petitioner completed her Master's in
Computer and Information Science and also obtained a Graduate
Certificate in Data Analytics with the GPA of 3.64. She started working
with the G&S Metal Products. On the other hand, in April 2019, the
respondent no.2-father managed to find a full time job in Michigan, USA.
12. It is the case of the petitioner that once the respondent no.2
was able to procure a full time job in Michigan, USA, he started conceiving
ideas of taking away the minor children.
13. It is the case of the petitioner that on 1st June 2019, the
respondent no.2 picked up the minor children and left for Michigan, USA,
from Cleveland, Ohio, without informing the petitioner-mother.
14. It is alleged that the respondent no.2 also took away all the
legal documents of the petitioner including her passport, State ID, home
keys, car keys along with the documents of the minor children.
15. It is alleged that the petitioner was locked in her own house. It
is also alleged that with a view to ensure that the petitioner had no
recourse/redressal, the respondent no.2, before leaving for Michigan,
USA, lodged a false complaint with the local police that the petitioner
was mentally ill and that she had run away from a mental ward.
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16. In such circumstances referred to above, the petitioner was
constrained to immediately file an Emergency Motion for Temporary
Custody of the minor children along with a complaint for divorce before
the Court of Common Pleas, Division of Domestic Relations, Cuyahoga
County, Ohio. The court concerned, vide order dated 17th June 2019,
granted temporary custody of the minor children to the petitioner.
17. It is alleged that despite such order being passed by the court
of Common Pleas referred to above, the respondent no.2 paid no heed
to such order and continued to keep the children away without allowing
them to talk with their mother.
18. It appears that the petitioner also filed for an Emergency Motion
restraining the removal of the minor children from the jurisdiction of the
Ohio Court. The court concerned passed a restraint order in favour of
the petitioner on the same date, i.e. 17th June 2019.
19. Sometime in July 2019, one Ms. Megan was appointed by the
US Court as the guardian-ad-litem. However, the order granting the
custody of the minor children to the petitioner was not acted upon by the
respondent no.2.
20. In August 2019, the US Court directed supervised visitation
and referred the parties to mental evaluation experts.
21. It is the case of the petitioner that despite the custody order
dated 17th June 2019 passed in favour of her, the respondent no.2, without
seeking permission of the US Court and without informing the petitioner,
removed the minor children from the specialized school in Ohio to
Allegan, Michigan. While doing so, the respondent no.2 did not even
furnish the details of the petitioner-mother including her contact number,
etc. so as to completely alienate the petitioner from her children.
22. It is the case of the petitioner that thereafter the respondent
no.2 started administering threats that he would take away the children
to India. As a result of such threats, the petitioner was constrained to
bring the necessary facts to the notice of the Court concerned. The
Court concerned directed that the passport of both the minor children be
put in the Court's custody.
23. As the respondent no.2 was not able to remove the minor
children from the USA, he decided to alienate the children from the
petitioner-mother by refusing her unsupervised visitation. It is alleged
that the respondent no.2 prevented the children from reaching out to
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their mother and it was only with the intervention of the expert evaluator,
namely Dr.Mark Lovinger, that the petitioner was allowed to spend time
with the minor children.
24. In November 2019, both the expert evaluators, submitted their
opinion, stating that the petitioner was fit to have unsupervised time with
the children and there was no merit in any of the allegations levelled by
the respondent no.2.
25. In February 2020, the petitioner was able to procure a new
job and obtained H1B visa via sponsorship. The petitioner moved back
to Findlay, Ohio, where the minor son was born and was able to secure
a new apartment with good facilities for the children. However, according
to the petitioner, the respondent no.2 failed to abide by the custody order
dated 17th June 2019 and also failed to abide by the evaluation reports
recommending unsupervised visitation to the petitioner qua the minor
children. It is alleged that the respondent no.2 declined to bring the children
to the petitioner and allowed her to visit them only in his presence.
26. It appears that a shared parenting plan was arrived at between
the parties vide order dated 12th May 2021 passed by the Court of
Common Pleas, Division of Domestic Relations, Cuyahoga County, Ohio.
The shared parenting means the parents share the rights and
responsibilities as provided for in a plan approved by the Court as to all
or some of the aspects of the physical and legal care of their children.
The mother and the father together, under a shared parenting agreement,
are granted custody, care and control of the minor children until further
order that may be passed by the Court subject to certain terms and
conditions. By virtue of the shared parenting plan referred to above,
both the parties got joint custody of their children. The visitation schedule
was clearly laid down in the shared parenting plan dated 12th May 2021.
The parties agreed to not relocate without the consent of the other party
and without the Court's permission by way of a 60 day prior notice and
the passports of the children were to stay in alternation with the noncustodian parent while the children were in the custody of the other
parent.
27. It appears that a separation agreement was also entered upon
between the parties dated 27th July 2021. On 28th July 2021, the
respondent no.2 sent an email to the US Court in the form of an intimation
that he would like to take his minor children on a vacation to India and
asked the petitioner-mother to keep the children for three weeks.
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28. On 15th August 2021, the respondent no.2 posted a travel
itinerary. The petitioner noticed that the itinerary was such that the
children would miss their school by a week. The petitioner declined to
accept the itinerary. The petitioner requested the respondent no.2 to go
to India for his vacation, and during that period, the kids would stay with
their mother.
29. It is the case of the petitioner that the respondent no.2, out of
spite, called upon the local police levelling false allegations that the
petitioner was causing harm to her children owing to an alleged mental
illness. The local police responded to the call and after due verification
arrived at the conclusion that the children were healthy and were well
taken care of by the petitioner. The case was accordingly closed.
30. It appears that on 16th August 2021, the respondent no.2 lodged
one another complaint with the police. The petitioner had to leave her
house with the minor children so as to consult her lawyer. She requested
her friend to take care of her children while she was gone. When the
friend of the petitioner reached the petitioner's house, the children were
nowhere to be found. In such circumstances, the petitioner immediately
called up the US police at Findlay, Ohio. At 10:00 pm., the respondent
no.2 informed the petitioner that the children were in Michigan.
31. It is the case of the petitioner that on 16/17th August 2021 at
2:55 am, she received a distress call from her minor daughter Lakshaya
Ganesh aged 12. The petitioner noticed that her minor daughter Lakshaya
Ganesh was crying on phone. The minor daughter also informed the
petitioner-mother that she was in Chicago and the father was intending
to take them to India. The petitioner was shocked to hear what was
informed by her daughter on phone, as the respondent no.2 was not
scheduled to travel to India before 19th August 2021 as per his own
itinerary. The minor daughter revealed to the petitioner-mother that the
respondent no.2-father had sent an incorrect itinerary.
32. It is the case of the petitioner that the respondent no.2
clandestinely and with a view to solely removing the children from the
USA and from the joint custody of the petitioner, left for India with the
two minor children on 17th August 2021.
33. On 18th August 2021, being completely unaware of the
respondent no.2 having left for India with the minor children, the
petitioner immediately moved an Emergency Motion for restraining the
respondent no.2 from removing the minor children from the USA. The
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
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Court concerned granted the order as prayed for by the petitioner. It
was after this order that, according to the petitioner, she checked with
the Etihad Airways to confirm the itinerary of the respondent no.2 and
found that the one submitted by the respondent no.2 was incorrect.
34. The petitioner later discovered that the respondent no.2 had
already flown out with the minor children on 17th August 2021 against
his own itinerary. The respondent no.2 was supposed to leave on 19th
August 2021.
35. The petitioner desperately tried to get in touch with her minor
daughter on phone between 16th August 2021 and 21st August 2021 but
her phone was found to be switched off. On 21st August 2021, the
petitioner received a call from her minor daughter pleading with the
petitioner-mother to take her back to the USA.
36. The petitioner-mother consoled her minor daughter not to panic
or confront the respondent no.2-father less he would harm her. The
petitioner was also informed by her minor daughter that the respondent
no.2 had first taken them to someone's house at Chennai and was
thereafter planning to move to the house of their grandfather.
37. At this stage, we would like to reproduce the verbatim
averments made by the petitioner as contained in paragraphs 25 to 28
respectively. We quote the necessary averments thus :
"25. That the Petitioner Ex-Wife has been deliberately kept
away from the children since 2019 and finally when the
Settlement Agreement/In-Court Agreement allowed the
Petitioner Ex-Wife to enjoy the company of the minor children
that the Respondent no. 2 had deprived her off, the minor
children have now been abducted by the Respondent No.2
and illegally removed from the US. That the Respondent No.2
deliberately left with the legal documents of the minor children
in absolute breach of the terms of the Settlement Agreement
dated 30.07.2021 and switched off the minor daughter's
phone to block any and every channel of communication with
the Petitioner Ex-Wife. The Respondent No.2 has a manic
tendency of harassing and torturing the Petitioner Ex-Wife
to no extent and in this final blow has misused the children as
a weapon to seek vengeance from the Petitioner Ex-Wife.
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26. The minor children are currently nowhere to be found
and the Petitioner's father has made all possible attempts to
trace the minor children in Chennai. The Petitioner Ex-Wife's
father tried to trace the minor children to the Respondent
No.2's brother's house i.e. the Respondent No.3 at Tripti
Apartments, Apt No.20, Marshall Enclave, 15/8 Egmore,
Chennai but the guard told him that the said house had been
vacated alongwith the two children. Thereafter, he also
checked at the Respondent No.2's parental home i.e. the
Respondent no.5's house at No.5, State Bank Colony, A.A
Road, Virudhunagar, Tamil Nadu however, the children were
not even found here. The Respondent No. 2 has therefore,
fled the US with the minor children and has been moving
around the country completely unknown to the Petitioner
mother and to the complete detriment to the minor children
who have been missing their school and their home in the
US. The Respondent No. 2 and his family have been hand in
glove in keeping the Petitioner Ex-Wife deprived of the
company of the minor children. That the Petitioner's father
fearing for the safety and welfare of the minor children has
made a complaint to the Superintendent of Police, Collectorate
Complex, Virudhunagar, Tamil Nadu on 13.09.2021 requesting
him to investigate into the case of searching for the minor
children who have been illegally removed from their parent
nation.
27. That on 21.9,2021 in furtherance to the complaint made
by the Petitioner Ex-Wife's father, the Virudhanagar Police,
Chennai informed the Petitioner's father that the minor
children could not be found neither at the residence of the
Respondent No.4 at Tripti Apartments, Egmore, Chennai nor
at the residence of the grandfather i.e. the Respondent No.5.
Further now the Petitioner Ex-Wife has also found out through
the Police Authorities in Ohio, USA that the Respondent No.2
is planning to shift to Maharashtra and shifted his job in
Perrigo, Allegan, 'Michigan, USA to Maharashtra, India. The
Petitioner is thus at a complete loss is absolutely unaware of
the whereabouts of the minor children and of the Respondent
no. 2.
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF
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28. The minor children are being kept away from the
Petitioner Ex-Wife who has equal parental rights and
responsibilities qua the minor children as laid out in Settlement
Agreement dated 30.07.2021. The Respondent no. 2
Ex-Husband is willfully disobeying the Orders of the US Court
by detaining the minor children somewhere in India not just
contrary to the Settlement Agreement but also against the
wishes and interest of the minor children who have been
plucked out of their society based on the Respondent
Ex-Husband's whim. The US Court is the ONLY Court having
jurisdiction over the minor children as the children are
permanent citizens of the USA and the minor son Bhavin Sai
Ganesh is a citizen of the USA and holds an American
Passport. The children's education is suffering as they were
abducted from the USA mid-term and despite the Petitioner
Ex-Wife's incessant efforts to make the Respondent No.2
understand the implications of his actions, the Respondent
No.2 Ex-Husband has become unresponsive and untraceable
alongwith the children."
38. It would not be out of place to state over here that the shared
parenting plan referred to above by us in paragraph 26 ultimately came
to be terminated by the Court at Ohio vide order dated 9th February
2022 at the instance of the petitioner-mother. We quote few relevant
observations made by the Court at Ohio as under :
"33. Defendant/Father's failure to return the children from
India was a clear violation of the consent order, as follows :
"a. Defendant/Father failed to honor Part I(C)(1) of the
Shared Parenting Plan, whereby he pledged to "provide
the children with an emotional environment in which the
children are free to continue to love the other Parent and
spend time with them."
b. Defendant/Father failed to honor Part I(C)(3) of the
Shared Parenting Plan, whereby he pledged to "allow the
children to telephone on a reasonable basis."
c. Defendant/Father failed to honor Part I(C)(4) of the
Shared Parenting Plan, whereby he pledged to
"communicate with the other Parent openly, honestly, and
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regularly to avoid misunderstandings which are harmful
to the children."
d. Defendant/Father failed to honor Part I(C)(7) of the
Shared Parenting Plan, whereby he pledged "not to
withhold time with the other Parent as a punishment to the
children or the other Parent."
e. Defendant/Father failed to honor Part I(C)(10)(a) of
the Shared Parenting Plan, whereby he pledged to honor
the children's rights to a continuing relationship with both
parents.
f. Defendant/Father failed to honor Part I(C)(g) of the
Shared Parenting Plan, whereby he pledged to honor the
children's rights to "experience regular and consistent
contact with both Parents and the right to know the reason
for any cancellation or change of plans."
g. Defendant/Father has withheld parenting time from
Plaintiff/Mother, as specified above. :
h. Defendant/Father never provided the children's
passports to the Plaintiff/Mother.
34. It is in the best interests of both children to be returned
immediately to the jurisdiction of the United States.
35. The children are familiar with and acclimated to the culture
of the United States and have thrived while studying in schools
in the United States. In addition, the minor children have
friends in the United States, and are acclimated to the
surroundings of the United States.
36. Defendant/Father violated the Shared Parenting Plan by
failing to provide three weeks prior notice of the itinerary.
37. Defendant/Father violated the Shared Parenting Plan by
failing to place the passports with Plaintiff/Mother
38. Defendant/Father took the children surreptitiously to
India, a country of which the children had little familiarity.
39. One of the major components of the Shared Parenting
Plan is that the Plaintiff and Defendant consistently
communicate regarding the best interests of their children.
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF
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Defendant/Father has failed to communicate with Plaintiff/
Mother. Plaintiff/Mother does not know where her minor
children are living or if Defendant/Father ever intends to
return them to the United States.
40. A change of circumstances exists in the children's situation,
they being surreptitiously removed to India without notice to
Plaintiff/Mother and without any plans to return.
41. It is in the children's best interest for the Shared Parenting
Plan to be terminated.
42. It is in the children's best interest for Plaintiff/Mother to
be named as residential parent and legal custodian.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED
that:
1. Plaintiff/Mother's Motion to Terminate the Shared
Parenting Plan and Designate Plaintiff as Residential Parent
and Legal Custodian (No. 444481) is GRANTED in the best
interests of the minor children.
2. Plaintiff/Mother, Rajeswari Chandresekar is hereby
designated as the residential parent and legal custodian of
daughter Lakshaya Ganesh, DOB 10/7/2009, and son
Babvinsai Ganesh, DOB 7/20/2013.
3. Defendant/Father shall make the children immediately
available to communicate with Plaintiff/Mother and allow for
daily communication between the children and their mother
until the children are in her custody.
4. Defendant/Father shall immediately return the children's
passports to Plaintiff/Mother, or in the alternative arrange
for and surrender the children's passports to the Indian Court
or a US Consulate in India. Plaintiff/Mother may apply for
replacement passports for the minor children without consent
of Defendant/Father.
5. Defendant/Father shall incur all transportation costs for
the return of the children to the United States of America, per
an itinerary to be determined by Plaintiff/Mother.
6. Defendant/Father shall submit to an independent
psychological evaluation at DeBalzo, Elugdin, Levine, Risen
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LLC, with Dr.Mark Lovinger for the determination of
Defendant/Father's ability to appropriately care for and coparent the minor children, which shall include psychological
and chemical evaluation as deemed appropriate, at Defendant/
Father's costs.
7. Defendant/Father's visitation with the minor children is
suspended until this Court can determine if visitation is
appropriate.
8. Plaintiff/Mother shall be responsible for all non-emergency
medical decisions, emergency medical decisions, and
educational decisions regarding the minor children.
9. For school purposes, Plaintiff/Mother's residence shall
dictate school enrollment for the children.
10. This order is enforceable by any and all law enforcement
agencies, including, but not limited to the Federal Bureau of
Investigation, State Departments, and Immigration Authorities
in both the United States of America and India.
11. This matter shall be set for further hearing upon Plaintiff/
Mother's Motion to Show Cause, filed September 27, 2021
(No. 444480), and the request of Plaintiff/Mother for
attorney's fees pursuant to ORC §3105.73 for the change of
custody motion."
39. In such circumstances referred to above, the petitioner-mother
is here before this Court with the present petition under Article 32 of the
Constitution of India seeking a Writ of Habeas Corpus.
40. Vide order dated 28th September 2021, this Court issued notice
to the respondents, making it returnable within two weeks.
41. On 8th December 2021, time was prayed for on behalf of the
respondents nos.2, 4 and 5 respectively to file counter-affidavit. Three
days' time was granted to the respondents to file their counter affidavit.
42.