- (1.) Heard Shri Soumitra Paliwal, Advocate for the petitioner and Shri J.B. Gandhi, Advocate for the respondent.
(2.) Rule. Considering the nature of controversy, the learned Advocates for the respective parties are heard for final hearing. Rule is made returnable forthwith.
(3.) The petitioner and the respondent got married in 2005 in India. At that time, the petitionerhusband was studying Medicine at Michigan, U.S.A. After marriage, the respondentwife joined the company of the petitionerhusband at Michigan, U.S.A. On 01.09.2006 the couple got a baby girl Shreeya. In May 2014, the respondent came to India to attend the marriage of her brother. The petitioner also attended the marriage and left for U.S.A. on 02.06.2014, and as per the plan, the respondent and minor daughter Shreeya were to leave India on 24.06.2014 for which date the tickets were already booked. However, the respondent did not go to Michigan, U.S.A. According to the petitioner, the respondent and her family members gave false excuses for continuing her stay in India. According to the petitioner, considering the conduct of the respondent, he decided to take up legal proceedings at Michigan, U.S.A. and as per the laws there, the proceedings for custody of minor child are required to be taken within six months and therefore, he filed a petition before the Circuit Court for the County of Wayne, Family Division, State of Michigan, U.S.A. on 29.10.2014 praying for the following reliefs : (i) for grant of divorce. (ii) for legal and physical custody of minor child Shreeya. (iii) for order of child support as per the Michigan Child Support Guidelines. (iv) for equitable division of the property. (v) for equitable division of the debts and (vi) for any equitable relief. The petitioner also sought interim orders and exparte order for immediate return of minor child Shreeya to Michigan, U.S.A. The Court at Michigan, U.S.A. passed order on 30.10.2014 directing issuance of notice to the respondent and by an exparte order directed return of minor child Shreeya to the jurisdiction of the Court at Wayne, State of Michigan, U.S.A., within seven days of the service of order. The copies of the petition filed by the petitioner before the Court at Wayne and the exparte order were served on the respondent on 20112014 and the respondent filed an objection before the Court at Wayne on 30.11.2014 through her counsel. The objection was notarized at Akola on 28.11.2014. On 28.11.2014, the respondent filed Divorce Petition No.10/2014 before the Family Court, Akola praying for the following reliefs : (i) for appointing the respondentwife as guardian for having sole custody of minor child Shreeya. (ii) for declaration that the petitionerhusband is not entitled to claim custody of the minor child Shreeya by approaching any Court in the State of Michigan or any other Court in India. (iii) for declaration that the proceedings and order passed in Case No.1411233DC pending before the 3rd Circuit Court for County of Wayne, Family Division in the State of Michigan is without jurisdiction, null, void and contrary to the welfare of minor child Shreeya. (iv) for any other suitable orders and for costs of the petition. On 03.12.2014, the respondent submitted her answer to the complaint before the Court at Wayne through her counsel. The relevant portion of the answer submitted by the respondentwife before the Court at Wayne is as follows : (i) That, the Hon'ble Court allow the marriage between the parties be dissolved and a Divorce from the bonds of matrimony be decreed to the Defendant according to the statutes and laws of India in the matter that is pending. (ii) Award temporary physical and legal custody to Defendant mother SHRADHA FOGLA. (iii) Award temporary and permanent spousal support to Defendant SHRADHA FOGLA. (iv) Award temporary child support to Defendant SHRADHA FOGLA pursuant to the Michigan Child Support Guidelines. (v) Award Defendant SHRADHA FOGLA an interim payment of attorney fees to permit her to bear the cost of representation in this matter. (vi) Divide the parties marital property in an equitable manner. (vii) That the Defendant SHRADHA FOGLA may have such other and further relief in the premises as may be agreeable to equity and good conscience. On 03.12.2014, the respondent submitted answer to the application filed by the petitioner before the Court at Wayne for exparte order for immediate return of minor child Shreeya to the State of Michigan and for sole legal and physical custody. In this answer, the respondent prayed that the exparte order passed by the Court at Wayne be set aside and submitted that the respondent and the minor child Shreeya were entitled to remain in India and that the Court in India will resolve the pending divorce and custody matter. The respondent filed an application before the Court at Wayne praying for an exparte order to seal the safety deposit box. The Court at Wayne passed an order on 13.12.2014 on the application directing that the safety deposit box possessed by the petitioner and the respondent be sealed. On 04.01.2015 the Court at Wayne issued show cause notice to the respondent, asking her explanation as to why the order passed on 30.10.2014 was not complied with. On 13.01.2015 the Court at Wayne passed an order directing that the minor child Shreeya should be returned to Michigan within 28 days i.e. till 10.02.2015. The petitioner had moved the Court at Wayne for orders pointing out that the respondent had violated the exparte order passed by the Court at Wayne on 30.10.2014. The Court at Wayne had issued show cause notice to the respondent and then hearing was taken on 17.01.2015. At the time of hearing, the petitioner was represented by his counsel and the respondent participated in the hearing through telephone. After hearing, the Court at Wayne passed an order on 17.02.2015 concluding that the respondent had violated the exparte order passed on 30.10.2014 and was liable for an action for contempt of Court for the violation of the Court's order dated 13.01.2015. The Court directed the respondent to travel to United States embassy in Mumbai, India, with the minor child Shreeya till 23.02.2015, apply for and obtain new passport for minor child Shreeya and ensure that Shreeya is returned to State of Michigan till 25.2.2015. The directions to obtain new passport for minor child Shreeya, perhaps were given by the Court at Wayne in view of the stand taken by the respondent that the passport of minor child Shreeya was kept by the parents of the petitioner. The Court recorded that if the respondent was unable to travel with Shreeya till 25.02.2015, Shreeya should travel from Mumbai to Detroit, Michigan via an accompanied minor airline travel program till 25.02.2015. The Court passed consequential orders. The Court at Wayne passed an order on 29.03.2015 recording that the respondent had committed a default by disobeying the orders of the Court and refusing to participate in the hearing on 04.03.2015. The Court reiterated its directions that the respondent should immediately obtain U.S. passport for Shreeya and make arrangements to return Shreeya to Michigan at the petitioner's costs. The Court requested the learned Judge of Family Court, at Akola to adjourn the hearing of the case without altering the status quo and to allow the Court communication between the learned Judge, Presiding the Court at Wayne and the learned Judge of Family Court, at Akola. It was further requested that the Family Court at Akola should decline to accept the jurisdiction in respect of the Indian Guardianship Case and, instead, that the Family Court should assist in the return of Shreeya to Michigan. The learned Judge of Court at Wayne had sent an email to the Family Court at Akola, calling upon the Family Court, at Akola to satisfy itself as to whether the Family Court, at Akola has jurisdiction to proceed with the case. On receiving this request, the learned Judge of Family Court, at Akola called upon the parties to make their submissions and has passed the impugned order concluding that he has jurisdiction to entertain the petition. This order is challenged by the petitioner before this Court.;