Madras High Court (File photo)
CHENNAI: Assailing a single bench of the Madras High Court for 'sitting on the considered judgment' of a division bench pertaining to a habeas corpus petition (HCP), a division bench has said the single bench's order must be taken to be without jurisdiction as it vitiates the order of the division bench.
A division bench of Justices S Vaidyanathan and N Anand Venkatesh made the ruling while entertaining a contempt of court petition and a sub-appeal filed by Indian-born US citizen Kiran Chava, seeking custody of his twin children, who are currently with their mother Usha Kiran Anne in Tamil Nadu.
In January this year, a division bench ordered custody of the twins to their father, an overseas citizen of India (OCI) card holder staying in the US, since the estranged mother took the children with her to India. However, while dealing with two civil revision petitions (CRPs) filed by the father seeking to set aside the proceedings pending in the subordinate courts on domestic violence and restitution of conjugal rights, the single judge ordered custody of the children to the mother while holding a dissection of the verdict of the division bench.
Since the mother failed to hand over the children as per the division bench's order, Kiran Chava filed contempt of court petitions. Senior counsel G Rajagopalan, assisted by Sunita Kumari, appeared for Kiran Chava.
The single judge collaterally went into the findings of the division bench made in the HCP and virtually the custody that was granted by the division bench was set at naught, the judges noted.
The custody of the children was not even the subject matter before the single judge and it had absolutely no relevance while deciding the CRPs, which were filed to strike off the proceedings on the domestic violence and restitution of conjugal rights, they said, adding that the single judge cannot indirectly set aside the findings and directions issued by the division bench.
"We have to necessarily hold that the findings and the directions issued by the learned single Judge contrary to the discussion, observations and directions issued by the Division Bench must be held to be non-est in the eyes of law. The single judge should have exercised restraint and ought not to have sat on the considered judgment passed by a Division Bench and any orders passed by him must be taken to be without jurisdiction and it vitiates the order as the one passed by a corum non judice," the division bench ordered on Thursday.
The division bench granted permission to the father to take the children back to the US since their passports are expiring on March 6, 2023; because if the validity lapses, the children would be in trouble of losing overseas citizens of India (OCI) status and their stay would become illegal. The division bench also ordered statutory notices to the mother on the contempt of court petition.
