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High Court upholds order passed by Superior Court of Cobb County at Georgia in the U.S. PDF Print E-mail
(1 Vote)
Written by Mohamed Imranullah S.   

The Madras High Court has upheld the validity of an order passed by the Superior Court of Cobb County at Georgia, United States, in a civil case relating to grant of custody of a three-year-old girl born to Indian parents, thanks to American court procedures that require verbatim and uncensored recording of court proceedings “except gestures, yawning, sneezing and physical movements of people present in the court.”

Civil suit

Disposing of a civil suit filed by the child's mother in the High Court, Justice V. Ramasubramanian said: “The proceedings that had taken place on October 18, 2010 before the Superior Court of Cobb Country leaves no iota of doubt in my mind that despite the plaintiff (mother) being absent, the learned judge applied his mind to each and every detail, small or big, before arriving at the decision (to hand over the custody of the child to her father).

“The decision does not appear to be in the nature of ex-parte orders that we are familiar with in this part of the world and the transcript would actually make any of our judicial officers feel envious of the time, the facility and the infrastructure available there and the kind of assistance provided to the courts there.”

Mr. Justice Ramasubramanian relied on the transcript of the foreign court proceedings to hold that it was a well merited order warranting no interference.


If it was the transcript that helped the judge to reject the argument of non-application of mind on the part of the foreign court, it was the emotional e-mails exchanged between the child's parents that helped him to hold that the father would be a more appropriate person than the mother, an attorney by profession, to be given the custody of the child.

The e-mails also came in handy to eschew the woman's argument that the child's father had obtained custody by fraud and misrepresentation.

In an e-mail sent to the child's father on April 22 last, the mother had said: “I want to tell you that these 4 years that I have lived with you has been very meaningful and what we have shared and given into this relationship is something only we both know. You have been a very good husband, a good father and a good head to our family which you have run in the last 4 years… Having said that, in the recent past 5 to 6 months I was just realizing that I was growing out of this relationship and growing out of you.”

On the other hand, in an e-mail written to the child's mother on May 18 last, the father had said: “I am ready to throw everything and do what is the right thing for my poor 3 year old daughter's sake, whose birthday happens to be today! So, I am ready to come as a pauper, throwing everything that I had painfully earned in this great country — US — only because I feel it is very cruel to subject my daughter to a divorce and bitter custody fight.

“I will continue to do everything in my capacity to ensure that she has a smooth childhood. When she grows as a big girl, I want her to know that her Dad tried EVERYTHING just for HER SAKE gave up everything he painfully assembled, just to spare her of any ordeal.”

After recording the contents of the e-mails, the judge said: “No one can find fault with a person, for growing out of a relationship, especially in these days, when career and ambition tends to overtake family ties and family values. But at the same time, it may not be fair to invent reasons post facto, to justify one's action in walking out of matrimony.”

The couple got married at Atlanta on September 23, 2005. Both of them were divorcees at the time of their marriage.

They were blessed with a baby girl on May 18, 2007 and lived together until the woman filed a divorce petition before the Superior Court of Cobb County on May 7, 2010 and flew down to India with her child after telling the child's father that they are going on a vacation.

The father came to knew of the divorce petition only on June 1, 2010 when he received summons.

Thereafter, their relatives held conciliatory talks and hence the woman withdrew the divorce petition on June 3, 2010.

The mother and daughter duo flew to the U.S. only to come back to India again on July 26, 2010.

She filed a second divorce petition through her counsel in the Superior Court of Cobb County on August 17 last and the matter was posted for hearing on October 18.

However, the woman did not go to the U.S. to attend the hearing apprehending legal problems.

The court decided the case on the basis of counter claim made by the husband and passed a final order on November 1 dissolving their marriage by granting decree of divorce.

It also granted physical custody of the child to its father and visitation rights to the mother. But the woman did not give back the child.

Hence, the father filed a writ of habeas corpus in the Superior Court and obtained favourable orders. Yet, the child was not sent back to him and so he filed a contempt of court application.

The summons, motion for contempt and other relevant papers were all served in India on the woman by a Special Process Server appointed by the Court of Cobb County on January 8 this year.

A Red Corner notice was also issued against her. Immediately, thereafter, the woman had filed the present civil suit before the court to declare as null and void the foreign court's order directing her to hand over the custody of the child to the father and not the other portion of the order dissolving her marriage.

A chance to mother

Though, Mr. Justice Ramasubramanian upheld the foreign court's judgement, he gave a chance to the child's mother to come out of the contempt proceedings by filing a petition in the Court of Cobb County thereby undertaking to produce the child if the latter's father agrees to pay the charges for air tickets and the expenses towards accommodation.

Such petition must be filed within a week failing which the child's father would be at liberty to take action in accordance with law.


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