Parminder Kaur Brar vs State Of Punjab And Ors

CRWP-7400-2020 Date of decision: 17.12.2020

Parminder Kaur Brar .....Petitioner

Versus

State of Punjab and others .....Respondents

CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI

Present : Mr. Ashok Kumar Khunger, Advocate for the petitioner.

Mr. P.S. Walia, Asstt. A.G. Punjab for respondents No.1 to 3

Mr. Arvinder Singh, Advocate for respondents No.4 to 6

****

ARUN KUMAR TYAGI, J.

(The case has been taken up for hearing through video

conferencing.)

2. The petitioner has filed present petition under Articles

226/227 of the Constitution of Indian for issuance of a writ in the

nature of habeas corpus for directing the release of detenue Inayat Brar

minor daughter of the petitioner aged about 6 years (hereinafter referred

to as 'the child') from illegal custody of respondents No.4 to 6 by

appointment of a warrant officers with roving writ/direction to search

the premises of respondents No.5 and 6 or any other place pointed out

by the petitioner with direction to hand over her custody to the

petitioner. The petitioner has also sought issuance of further direction to

respondents No.4 to 6 to hand over the passport of the child to the

petitioner.

3. Briefly stated, the petition has been filed on the averments

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that petitioner was married with respondent No.4 on 22.01.2011 at

Abohar. The petitioner after clearing her IELTS settled at Canada in the

year 2013 and after getting permanent residency status called her

husband/respondent No.4 and they both settled at Canada. The child

was born out of the wedlock on 28.07.2014 at Canada and passport was

issued in her name by the Canadian Government which is valid upto

21.07.2021. Deteune Inayat Brar was admitted in Sikh Academy at

Canada in Class KG3 for the session 2019-2020. The petitioner

alongwith her husband-respondent No.4 and their minor daughter

Inayat Brar came to India on 02.01.2020 to meet their parents and

relatives. Due to call from the employer, the petitioner went back to

Cananda on 25.01.2020 leaving her husband-respondent No.4 and the

child in India. The petitioner came to India on 02.03.2020 and

requested respondent No.4 to return to Canada but respondent No.4

conveyed his intention to stay in India due to Covid-19 on which the

petitioner again went back to Canada and joined her duties. The

petitioner came to India on 03.08.2020 and asked respondent No.4 to

return to Canada alongwith the child but respondent No.4 refused. The

petitioner also received e-mail dated 09.09.2020 from Sikh Academy

Canada to bring the child to the school for the next academic session.

Thereupon she visited her in-laws house at Village Chak Sherewala but

the child was not present there. Respondent No.4 told her that the child

had gone to the house of respondent No.5 at Sri Muktsar Sahib. The

petitioner went to the house of respondent No.5 and found the child

with respondents No.5 and 6. The child expressed her willingness to

return with her to Canada but respondents No.5 and 6 did not allow the

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child to accompany the petitioner. Respondents No.4 to 6 have illegally

detained the child and there is danger to her life from them.

4. Pursuant to notice of motion order, learned State Counsel

has appeared on behalf of respondents No.1 to 3. However, no reply has

been filed by respondents No.1 to 3.

5. The petition has been opposed by respondents No.4 to 6 in

terms of reply dated 28.09.2020 of respondent No.4 filed on behalf of

respondents No.4 to 6.

6. In the reply respondents No.4 to 6 have made preliminary

submissions that respondent No.4 being father is natural guardian of

the child and her custody with her father-respondent No.4 cannot be

said to be illegal. In the month of January, 2020 the petitioner left the

child with respondent No.4 and threw her passport on the table in front

of all the relatives in joint family house of respondent No.4 and said

"keep your child and her passport". The petitioner came to India in

March, 2020 to attend a marriage and did not even try to meet

respondent No.4 and the child. The child is living with and being

looked after well by the joint family of respondent No.4 which includes

his parents, his elder paternal uncle, his cousin (respondent No.5) and

wife (respondents No.6) and son of his cousin. The child has been

admitted in Iconic International School, Malout Road, Sri Muktsar

Sahib which is holding online classes. The petitioner is now living all

alone in Canada and if the custody of the child is given to her then there

will be no one to look after the child when the petitioner goes for her

work. Due to her tender age of 6 years, the child cannot be left alone in

the house. Welfare of the child is paramount consideration for

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considering the question of handing over her custody. The petitioner

did not take respondent No.4 to Canada for permanent settlement

because of her own merit and the petitioner and respondent No.4 went

together to Canada with advantage of points due to brother of

respondent No.4 having already settled there. Respondent No.5 and 6

have no role to withhold the child back. The petitioner and respondent

No.4 never had any cordial relations with each other and due to

bitterness of their relationship respondent No.4 does not want to go

back to Canada and live with the petitioner. Respondent No.4 and his

family members insisted to hand over the custody of the child in the

presence of the respectables particularly the mediator in the marriage

who did not accompany the petitioner due to which custody of the child

was not given to her. The child is happily living in the joint family in

the company of her father, grand parents and other members. Therefore,

the petition may be dismissed.

7. I have heard arguments addressed by Mr. Ashok Kumar

Khunger, learned Counsel for the petitioner, Mr. Amit Mehta, Sr. DAG,

Punjab for respondents No.1 to 3 and Mr. Arvinder Singh, learned

Counsel for respondents No.4 to 6 and gone through the relevant

record.

8. While reiterating factual averments made in the petition,

Mr. Ashok Kumar Khunger, learned Counsel for the petitioner has

submitted that the petitioner and respondent No.4 are permanent

residents of Canada. The child was born in Canada, is a citizen of

Canada and came to India on Canadian passport. The petitioner and

respondent No.4 along with the child had come to India for visiting

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their parents and relatives but respondent No.4 stayed in India with the

child due to Covid-19. Now, respondent No.4 has refused to return to

Canada and hand over custody of the child to the petitioner. The

petitioner is employed in Canada and having sufficient income to

properly look after the child and it will be in the best of interest and

welfare of the child that her custody and passport are handed over to the

petitioner for return to Canada and the question of her custody is

decided by the Court of competent jurisdiction in Canada.

9. Learned Counsel for the petitioner has further argued that

in the facts and circumstances of the case, detention of the child by

respondents No.4 to 6 amounts to illegal/improper custody. Habeas

corpus petition filed by the petitioner for handing over her custody to

the petitioner is maintainable and this Court can in exercise of its

extraordinary writ jurisdiction by recourse to summary inquiry order

return of respondent No.4 with the child to Canada. Learned Counsel

for the petitioner has accordingly prayed that respondent No.4 may be

directed to return to Canada with the child or to hand over custody of

the child to the petitioner for return to Canada subject to decision of the

question of her custody by the Court of competent jurisdiction in

Canada. In support of his arguments learned Counsel for the petitioner

has placed reliance on the observations in Jasmeet Kaur Vs. State

(NCT of Delhi) and another (Supreme Court): 2020(1) RCR (Civil)

574; Soumitra Kumar Nahar Vs. Parul Nahar (Supreme Court) :

2020(1) LAWDIGITAL.IN 52; Rubi (Km) and others Vs. Hayat

Mohammad (Allahabad High Court) : 1986(1) HLR 604 and Mr.

Varun Verma Vs. State of Rajasthan (Rajasthan High Court) :

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2019(2) WLC (Raj.) (UC) 246.

10. On the other hand Mr. Arvinder Singh, learned Counsel for

respondents No.4 to 6 has argued that the petitioner had given up

custody of the child and had returned to Canada alone in January, 2020

by retorting respondent No.4 to keep the child and her passport. The

petitioner came to India in March, 2020 to attend a marriage but did not

even try to meet respondent No.4 and the child. Respondent No.4 being

father is natural guardian of the child under Section 6 of the Hindu

Minority and Guardianship Act, 1956 (for short 'the HMG Act') and

custody of the child with respondent No.4 cannot be said to be illegal.

The petitioner has the equally efficacious remedy of filing petition

under the HMG Act and Guardians and Wards Act, 1890 (for short 'the

GW Act'). Therefore, the Habeas Corpus petition is not maintainable.

The child is happily living with and is being looked after by respondent

No.4 and his joint family comprising his parents, elder paternal uncle,

his cousin and wife and son of his cousin. The child has been admitted

in Iconic International School, Malout Road, Sri Muktsar Sahib which

is conducting online classes. In case custody of the child is handed over

to the petitioner, the petitioner cannot properly look after the child

during the period when she goes to her office and it will not be safe to

leave the child of tender age of 6 years alone in the house. It will be in

the best of interest and welfare of the child that respondent No.4 be

allowed to retain her custody. Learned Counsel for respondents No.4 to

6 has accordingly submitted that the petition may be dismissed. In

support of his arguments, learned Counsel for respondents No.4 to 6

has placed reliance on judgment of Hon'ble Supreme Court in Prateek

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Gupta Vs. Shilpi Gupta and others : 2018(1) RCR (Civil) 210.

11. The question of the custody of child, as observed by

Hon'ble Supreme Court in Lahari Sakhamuri Vs. Sobhan Kodali

:2019 (7) SCC 311, raises delicate issues considered by the Courts to be

difficult for adjudication particularly where the parents are non-resident

Indians. As observed by Hon'ble Supreme Court in Vivek Singh Vs.

Romani Singh : 2017 (1) RCR (Civil) 1063, in cases of this nature

while a child, who ideally needs the company of both the parents, feels

tormented because of the strained relations between the parents, it

becomes, at times, a difficult choice for the court to decide as to whom

the custody should be given. The children are not mere chattels : nor are

they mere play-things for their parents as observed by Hon'ble Supreme

Court in Rosy Jacob Vs. Jacob A. Chakramakkal : (1973) 1 SCC 840

and in deciding the question of their custody paramount consideration

is their welfare. However, at times the prevailing circumstances are so

puzzling that it becomes difficult to weigh the conflicting parameters

and decide on which side the balance tilts.

12. Where the parties are Hindus, the HMG Act lays down the

principles on which custody disputes are to be decided. As per Section

6 of the HMG Act, natural guardian of a Hindu Minor in respect of the

minor's person as well as in respect of the minor's property (excluding

his or her undivided interest in joint family property) is the father, in the

case of a boy or an unmarried girl and after him, the mother. Father

continues to be a natural guardian, unless he has ceased to be a Hindu

or renounced the world. Section 13 (1) of the HMG Act stipulates that

in the appointment or declaration of any person as guardian of a Hindu

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minor by a court, the welfare of the minor shall be the paramount

consideration. Section 13(2) of the HMG Act stipulates that no person

shall be entitled to the guardianship by virtue of the provisions of the

Act or of any law relating to guardianship in marriage among Hindus, if

the court is of opinion that his or her guardianship will not be for the

welfare of the minor. Section 7 of the GW Act empowers the Court to

make order as to guardianship. Section 17 (1) of the GW Act provides

that in appointing or declaring the guardian of a minor, the Court shall,

subject to the provisions of said section, be guided by what,

consistently with the law to which the minor is subject, appears in the

circumstances to be for the welfare of the minor. Section 17 (2) of the

GW Act stipulates that in considering what will be for the welfare of

the minor, the Court shall have regard to the age, sex and religion of the

minor, the character and capacity of the proposed guardian and his

nearness of kin to the minor, the wishes, if any, of a deceased parent,

and any existing or previous relations of the proposed guardian with the

minor or his property. Section 17 (3) of the GW Act mandates that if the

minor is old enough to form an intelligent preference, the Court may

consider that preference. No doubt, under Section 6 of the HMG Act

the father is a natural guardian of a minor child and therefore has a

preferential right to claim its custody but Section 6 of the HMG Act

cannot supersede the dominant consideration as to what is conducive to

the welfare of the minor child. (See Surinder Kaur Sandhu (Smt.) Vs.

Harbax Singh Sandhu, (1984) 3 SCC 698). Whenever a question

arises before a court pertaining to the custody of a minor child, the

matter is to be decided not on considerations of the legal rights of

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parties but on the sole and predominant criterion of what would best

serve the interest and welfare of the minor. (See Elizabeth Dinshaw Vs.

Arvand M. Dinshaw & Ors.(1987) 1 SCC 42 ).

13. Now, it is well settled that writ of habeas corpus can be

issued for restoration of custody of a minor to the guardian wrongfully

deprived of it. (See Gohar Begam Vs. Suggi alias Nazma Begam

(1960) 1 SCC 597; Manju Tiwari Vs. Rajendra Tiwari : AIR 1990 SC

1156; Syed Saleemuddin Vs. Dr. Rukhsana : 2001(2)

R.C.R.(Criminal) 591 and Tejaswini Gaud and others Vs. Shekhar

Jagdish Prasad Tewari and others (SC) : 2019(3) R.C.R.(Civil) 104.)

14. In Tejaswini Gaud and Ors. Vs. Shekhar Jagdish Prasad

Tewari and others : 2019 (3) R.C.R. (Civil) 104, Hon'ble Supreme

Court observed as under:-

"13. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it.............

18. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court.........."

15. In Criminal Appeal No.127 of 2020 SLP (crl.) No. 7390

of 2019 titled Yashita Sahu Vs. State of Rajasthan and others decided

on 20.01.2020 while referring to its judgments in Elizabeth Dinshaw

Vs. Arvand M. Dinshaw & Ors. : (1987) 1 SCC 42; Nithya Anand

Raghavan Vs. State (NCT of Delhi) & Anr. : (2017) 8 SCC 454 and

Lahari Sakhamuri Vs. Sobhan Kodali : (2019) 7 SCC 311 Hon'ble

Supreme Court rejected the contention that a writ of habeas corpus is

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not maintainable if the child is in the custody of another parent and held

that the court can invoke its extraordinary writ jurisdiction for the best

interest of the child.

16. However, exercise of extra ordinary writ jurisdiction to

issue writ of habeas corpus in such cases is not solely dependent on and

does not necessarily follow merely determination of illegality of

detention and is based on the paramount consideration of welfare of the

minor child irrespective of legal rights of the parents. In Howarth Vs.

Northcott : 152 Conn 460 : 208 A 2nd 540 : 17 ALR 3rd 758 it was

observed that in habeas corpus proceedings to determine child custody,

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 infant 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. It was further observed that the

employment of the forms of habeas corpus in a child custody case is not

for the purpose of testing the legality of a confinement or restraint as

contemplated by the ancient common law writ, or by statute, but the

primary purpose is to furnish a means by which the court, in the

exercise of its judicial discretion, may determine what is best for the

welfare of the child, and the decision is reached by a consideration of

the equities involved in the welfare of the child, against which the legal

rights of no one, including the parents, are allowed to militate. It was

also indicated that ordinarily, the basis for issuance of a writ of habeas

corpus is an illegal detention; but in the case of such a writ sued out for

the detention of a child, the law is concerned not so much with the

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illegality of the detention as with the welfare of the child. In Gaurav

Nagpal Vs. Sumedha Nagpal : 2008(4) R.C.R.(Civil) 928 Hon'ble

Supreme Court referred to these observations made in Howarth Vs.

Northcott : 152 Conn 460 : 208 A 2nd 540 : 17 ALR 3rd 758 and held

that the legal position in India follows the above doctrine.

17. In Syed Saleemuddin Vs. Dr. Rukhsana : 2001(2)

R.C.R.(Criminal) 591, Hon'ble Supreme Court observed as under:-

".....in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court."

18. The welfare of the child is not to be measured by money

only nor merely physical comfort. The word 'welfare' must be taken in

its widest sense. The moral or religious welfare of the child must be

considered as well as its physical wellbeing. Nor can the tie of affection

be disregarded. (Per Lindley, L.J. in McGrath, (1893) 1 Ch 143).

Welfare is an all-encompassing word. It includes material welfare, both

in the sense of adequacy of resources to provide a pleasant home and a

comfortable standard of living and in the sense of an adequacy of care

to ensure that good health and due personal pride are maintained.

However, while material considerations have their place they are

secondary matters. More important are the stability and the security, the

loving and understanding care and guidance, the warm and

compassionate relationships, that are essential for the full development

of the child's own character, personality and talents. (Per Hardy Boys, J.

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in Walker Vs. Walker & Harrison (1981) New Zealand Recent Law

257.)

19. In Gaurav Nagpal Vs. Sumedha Nagpal : 2008(4)

R.C.R.(Civil) 928 Hon'ble Supreme Court observed as under:-

"42. ....The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousami Moitra Ganguli's case (supra), the Court has to due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.

43. The word 'welfare' used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being.

Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases."

20. Hon'ble Supreme Court in Nil Ratan Kundu Vs. Abhijit

Kundu : 2008(3) RCR (Civil) 936 set out the principles governing the

custody of minor children in paragraph 52 as follows:-

"Principles governing custody of minor children

56. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and wellbeing of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort,

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contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor."

21. In Civil Appeal No.3559 of 2020 titled as Smriti Madan

Kansagra Vs. Perry Kansagra decided on 28.10.2020 Hon'ble

Supreme Court observed as under:-

"11.3. To decide the issue of the best interest of the child, the Court would take into consideration various factors, such as the age of the child; nationality of the child; whether the child is of an intelligible age and capable of making an intelligent preference; the environment and living conditions available for the holistic growth and development of the child; financial resources of either of the parents which would also be a relevant criterion, although not the sole determinative factor; and future prospects of the child."

22. India is not signatory to the Hague Convention on Civil

Aspects of Inter-national Child Abduction, 1980. In number of cases

filed under Article 32 of the Constitution of India or appeals filed

challenging correctness of the order passed by the High Court in

exercise of jurisdiction under Article 226 of the Constitution of India,

Hon'ble Supreme Court has dealt with the question of issuance of writ

of habeas corpus for repatriation of the minor children, who had been

removed from the foreign countries and brought to India, to the country

from where they had been removed. Hon'ble Supreme Court has taken

the view that the High Court may invoke the extraordinary jurisdiction

to determine the validity of the detention keeping in mind the

paramount consideration of the welfare of the child and even the order

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of the foreign court must yield to the welfare of the child. The Court

may direct repatriation of the minor child to the country from where

he/she may have been removed by a parent or other person.

23. In Nithya Anand Raghavan Vs. State of NCT of Delhi,

(SC) 2017(3) R.C.R.(Civil) 798 : 2017(8) SCC 454 Hon'ble Supreme

Court reiterated as under:-

"26. The consistent view of this court is that if the child has been brought within India, the Courts in India may conduct (a) summary inquiry or (b) an elaborate inquiry on the question of custody. In the case of a summary inquiry, the Court may deem it fit to order return of the child to the country from where he/she was removed unless such return is shown to be harmful to the child. In other words, even in the matter of a summary inquiry, it is open to the Court to decline the relief of return of the child to the country from where he/she was removed irrespective of a preexisting order of return of the child by a foreign Court. In an elaborate inquiry, the Court is obliged to examine the merits as to where the paramount interests and welfare of the child lay and reckon the fact of a pre- existing order of the foreign Court for return of the child as only one of the circumstances. In either case, the crucial question to be considered by the Court (in the country to which the child is removed) is to answer the issue according to the child's welfare. That has to be done bearing in mind the totality of facts and circumstances of each case independently."

24. In Prateek Gupta Vs. Shilpi Gupta and others : (2018) 2

SCC 209 following its earlier judgment in Nithya Anand Raghavan

Vs. State of NCT of Delhi (2017) 8 SCC 454 Hon'ble Supreme Court

held as follows:-

"32. The gravamen of the judicial enunciation on the issue of repatriation of a child removed from its native country is clearly founded on the predominant imperative of its overall well-being, the principle of comity of courts, and the doctrines of "intimate contact and closest concern"

notwithstanding. Though the principle of comity of courts and the aforementioned doctrines qua a foreign court from the territory of which a child is removed are factors which deserve notice in deciding the issue of custody and

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repatriation of the child, it is no longer res integra that the ever overriding determinant would be the welfare and interest of the child. In other words, the invocation of these principles/doctrines has to be judged on the touchstone of myriad attendant facts and circumstances of each case, the ultimate live concern being the welfare of the child, other factors being acknowledgeably subservient thereto. Though in the process of adjudication of the issue of repatriation, a court can elect to adopt a summary enquiry and order immediate restoration of the child to its native country, if the applicant/parent is prompt and alert in his/her initiative and the existing circumstances ex facie justify such course again in the overwhelming exigency of the welfare of the child, such a course could be approvable in law, if an effortless discernment of the relevant factors testify irreversible, adverse and prejudicial impact on its physical, mental, psychological, social, cultural existence, thus exposing it to visible, continuing and irreparable detrimental and nihilistic attentuations. On the other hand, if the applicant/parent is slack and there is a considerable time lag between the removal of the child from the native country and the steps taken for its repatriation thereto, the court would prefer an elaborate enquiry into all relevant aspects bearing on the child, as meanwhile with the passage of time, it expectedly had grown roots in the country and its characteristic milieu, thus casting its influence on the process of its grooming in its fold".

25. In Dr. V. Ravi Chandaran Vs. Union of India and others :

(2010) 1 SCC 174 a writ of habeas corpus for production of minor son

from the custody of his mother was sought for by his father. The child

was born in US and was an American citizen and was about eight years

of age when he was removed by the mother from U.S., in spite of her

consent order on the issue of custody and guardianship of the minor

passed by the competent U.S. Court. The minor was given in the joint

custody to the parents and a restraint order was operating against the

mother when it was removed from USA to India. Prior to his removal,

the minor had spent few years in U.S.. All these factors weighed against

the mother as is discernible from the decision, whereupon Hon'ble

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Supreme Court elected to exercise the summary jurisdiction in the

interest of the child, whereupon the mother was directed to return the

child to USA within a stipulated time.

26. In Shilpa Aggarwal Vs. Aviral Mittal : (2010) 1 SCC 591

the minor girl child involved was born in England having British

citizenship and was only 3½ years of age at the relevant time. The

parents had also acquired the status of permanent residents of U.K. In

the facts and circumstances of the case, Hon'ble Supreme Court

expressed its satisfaction that in the interest of the minor child, it would

be proper to return her to U.K. by applying the principle of comity of

courts. The Court was also of the opinion that the issue regarding

custody of the child should be decided by the foreign court from whose

jurisdiction the child was removed and brought to India. A summary

enquiry was resorted to in the facts of the case.

27. In the present case the minor girl child has been removed

from Canada and brought to India. As expounded in the above referred

catena of judgments by Hon'ble Supreme Court, the question of

issuance of writ of habeas corpus in exercise of jurisdiction under

Article 226 of the Constitution of India directing or declining return of

the minor girl child to the native country, has to be decided, not on the

basis of legal rights of the parties, but on the basis as to whether

paramount consideration of the welfare and best interest of the minor

girl child lies in return to Canada or continued stay in India. In

determining the said question this Court has the option to resort to a

summary inquiry or an elaborate inquiry and the option has to be

exercised and the said question has to be decided by taking into account

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the totality of the facts and circumstances and judging the same on

paramount consideration of the welfare and best interest of the minor

girl child. On taking into account the totality of the facts and

circumstances and judging the same on paramount consideration of the

welfare and best interest of the minor girl child, I am of the considered

view that the question involved deserves to be decided by recourse to

summary inquiry and the facts and circumstances of the case do not

warrant or mandate resort to an elaborate enquiry.

28. In the present case the minor girl child aged six years is

citizen of Canada by birth and has come to India on Canadian passport.

Both of her parents are permanent residents of Canada and are gainfully

employed there as nurse and painter having income in Canadian dollars

of 5500-6000 and 4506 per month respectively as shown by the

documents placed on record by them before this Court. The minor girl

child was living with both of them in Canada since its birth till her

journey to land of birth of its parents. Matrimonial differences have

propelled her father to prolong his stay with the minor girl child in

India but he has not claimed to have wound up his employment and

properties in Canada to permanently return to and settle in his

homeland.

29. The minor girl child has spent period of more than five

years out of six years in Canada. The period of more than five years

spent by the minor girl child in her formative initial years in Canada

has naturally resulted in her integration with the social, physical,

psychological, cultural and academic environment of Canada. The

minor girl child has been living in India for period still falling short of

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one year and that too during the lock-down/ period of social distancing.

Stay of the minor girl child in India has been for too short a period to

facilitate her acclimatization and integration to social, physical,

psychological, cultural and academic environment of India. The minor

girl child was brought to Punjab, where language of social interaction

is Punjabi and English, which is native language for social interaction

and to which any child born, brought up and studying in Canada would

be accustomed, is not spoken. The minor girl child is also subjected to

different, if not entirely foreign, system of education divorced from the

social circles to which she was accustomed. There is every likelihood of

the minor girl child being psychologically disturbed due to her

separation from her mother, who was the primary care giver to her and

under whose care she remained since her birth. The child, being a minor

girl of tender age of six years, custody and company of her mother, who

can provide her motherly love care and guidance and the required

upbringing for her desired grooming of her personality character and

faculties, will be of utmost significance. No doubt, the question of

company of the child during the period when the petitioner would go to

her office does arise but this aspect of the matter would have also arisen

when both the petitioner and respondent No.4 were living together in

Canada and used to leave for their office making some arrangement for

care of the minor girl child. Similar kind of arrangement can be made

by the petitioner. There may not be much difficulty in making such

arrangement as admittedly, brother of respondent No.4 is permanently

settled in Canada. The forced company of her grandparents and other

relatives cannot be said to be conducive to her physical and

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psychological well-being. The minor girl child being citizen of Canada

will have better prospects upon return to her native country. Unless the

minor girl child is immediately repatriated to Canada, her inherent

potentialities and faculties would suffer an immeasurable setback.

Natural process of grooming in association of her friends and playmates

in Canada is indispensable for comprehensive and conducive

development of her mental and physical faculties. There are compelling

reasons to direct return of the minor girl child to Canada as prayed by

the petitioner and such return is not shown to be harmful to the minor

girl child in any manner. Continuance of the minor girl child in India

will interfere with and will be harmful to her overall growth and

grooming and will be prejudicial to her interest. While there is no

material to suggest that return of the minor girl child to Canada would

result in psychological physical or cultural harm to her. In view of the

lock-down and restrictions imposed on travel, social interaction etc. to

prevent spread of pandemic of Covid-19, which also affected the

working of the Courts, there cannot be said to be any undue and

unreasonable delay in filing of the present petition so as to disentitle the

petitioner to the relief claimed.

30. In Prateek Gupta Vs. Shilpi Gupta and others : 2018(1)

RCR (Civil) 210, relied upon by learned Counsel for respondents No.4

to 6, the appellant and respondent married on 20.01.2010 in accordance

with Hindu rites at New Delhi and shifted to the United States of

America where the appellant was already residing and gainfully

employed. Two sons Aadvik and Samath were born out of the wedlock

on 28.09.2012 and 10.09.2014 respectively. As alleged by the

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respondent due to temperamental differences and cruel behavior of the

appellant in front of the child, the parties separated on or about

15.11.2014. The children continued to live with the respondent. On

24.01.2015 the appellant took Aadvik, representing that he would take

him for a short while to the Dulles Mall but did not return and

separated Aadvik from the respondent from 24.01.2015 to 07.03.2015.

The appellant left the United States of America with Aadvik for India

on 07.03.2015 and did not return to the United States of America with

Aadvik despite orders dated 28.05.2015 and 20.10.2015 passed by the

Juvenile and Domestic Relations Court at Fairfax County directing him

to return the child to the Commonwealth of Virginia and to the custody

and control of the respondent. The habeas corpus petition filed by the

respondent was allowed by the Delhi High Court and the appellant was

directed to return with Aadvik to the United States of America. On

appeal Hon'ble Supreme Court set aside order of the Delhi High Court

and directed retention of Aadvik by the appellant while observing as

under:-

"35. Reverting to the present facts, the materials as available, do substantiate lingering dissensions between the parties. They are living separately since 2014 with one child each in their company and charge. The children are US citizens by birth. Noticeably, the child Aadvik, who is the subject matter of the lis and custody was barely 2½ years old when he came over to India and had stayed here since then. Today, he is a little over 5 years old. In other words, he has spent half of his life at this age, in India. Considering his infant years of stay in US, we construe it to be too little for the required integration of his with the social, physical, psychological, cultural and academic environment of US to get totally upturned by his transition to this country, so much so that unless he is immediately repatriated, his inherent potentials and faculties would suffer an immeasurable set back. The respondent-mother also is not favourably disposed to return to India, she

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being a working lady in US and is also disinclined to restore her matrimonial home. The younger son is with her. There is no convincing material on record that the continuation of the child in the company and custody of the appellant in India would be irreparably prejudicial to him. The e-mails exchanged by the parties as have been placed on records do suggest that they had been in touch since the child was brought to India and even after the first order dated 28.05.2015 was passed by the court in US. In the said e-mails, they have fondly and keenly referred to both the sons staying in each other's company, expressing concern about their illness and general well-being as well. As has been claimed by the appellant, the child is growing in a congenial environment in the loving company of his grand-parents and other relatives. He has been admitted to a reputed school and contrary to the nuclear family environment in US, he is exposed to a natural process of grooming in the association of his elders, friends, peers and playmates, which is irrefutably indispensable for comprehensive and conducive development of his mental and physical faculties. The issue with regard to the repatriation of a child, as the precedential explications would authenticate has to be addressed not on a consideration of legal rights of the parties but on the sole and preponderant criterion of the welfare of the minor. As aforementioned, immediate restoration of the child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not otherwise. As it is, a child of tender years, with malleable and impressionable mind and delicate and vulnerable physique would suffer serious set-back if subjected to frequent and unnecessary translocation in its formative years. It is thus imperative that unless, the continuance of the child in the country to which it has been removed, is unquestionably harmful, when judged on the touchstone of overall perspectives, perceptions and practicabilities, it ought not to be dislodged and extricated from the environment and setting to which it had got adjusted for its well-being."

31. In the present case both the petitioner and respondent No.4

are permanent residents of Canada, are gainfully employed in Canada

and have purchased house in Canada and respondent No.4 has not

wound up and left employment in Canada and permanently settled in

India. The child has spent major part of more than five years of her life

of six years in Canada resulting in her integration with the social,

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physical, psychological, cultural and academic environment of Canada.

These facts of the present case besides others as discussed above are

evidently different from those in Prateek Gupta Vs. Shilpi Gupta and

others : 2018(1) RCR (Civil) 210. Therefore, the observations in

Prateek Gupta Vs. Shilpi Gupta and others : 2018(1) RCR (Civil) 210

relied upon by learned counsel for respondents No.4 to 6, which are

based on the peculiar facts thereof, are not of any help to respondents

No.4 to 6.

32. In view of the totality of the facts and circumstances of

the present case and on the basis of the summary inquiry, I am of the

considered view that it will be for the welfare and in best of interest of

the minor girl child that order be passed for return of the minor girl

child to Canada, from where she was removed and it will be appropriate

that the question of appointment of guardian/handing over custody of

the child to either of the parents is left for adjudication by the Court of

competent jurisdiction in Canada on the basis of paramount

consideration of welfare and best of the interest of the child.

33. In view of the above discussion the writ petition is allowed

with the following directions:-

(i) respondent No.4 is directed to return to Canada along with minor girl child on or before 01.01.2021;

(ii) if respondent No.4 fails to comply with aforesaid direction, respondent No.4 shall hand over custody of the minor girl child and her passport to the petitioner on 02.01.2021 or such other date as may be agreed to by the petitioner;

(iii) in case respondent No.4 fails to hand over custody of the minor girl child and her passport to the petitioner

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on 02.01.2021 or such other date as may be agreed to by the petitioner, respondent No.2 shall take over the custody and passport of the minor girl child from respondent No.4 and hand over custody and passport of the minor girl child to the petitioner on such date as may be agreed to by the petitioner;

(iv) on custody of the minor girl child and her passport being handed over to the petitioner, the petitioner shall be entitled to take the minor girl child to Canada;

(v) in case passport of the minor girl child is not handed over to the petitioner or respondent No.2 by respondents No.4 to 6 on the ground of loss/damage etc., the petitioner shall be entitled to get the duplicate passport issued from the concerned authority;

(vi) on such return of the minor girl child to Canada, either of the parties shall be at liberty to file appropriate application/petition for appointment of guardian, grant of custody of the minor girl child before the Court of competent jurisdiction; and

(vi) till filing of any such application/petition by either of the parties and passing of any interim order by the Court of competent jurisdiction on the same, respondent No.4 shall be entitled to visit the child and have her temporary custody from 10:00 a.m. to 1:00 p.m. or make video calls to her for about half an hour on every Sunday and in case respondent No.4 does not return to Canada, the petitioner shall bring the minor girl child to India to meet respondent No.4 and her grand parents/other relatives once in a year.

34. However, nothing in this order shall prevent the parties

from adopting any joint parenting plan as agreed to by the parties for

welfare of the minor child such as by arranging admission of the minor

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child in some school with hostel facility and by visiting her during

holidays and taking her custody during vacation as may be permitted by

the school authorities. It is also further clarified that the observations in

the present order have been made for the purpose of disposal of the

present writ petition and shall not bind any Court or authority in

disposal of any other case involving question of custody or welfare of

the child.

(ARUN KUMAR TYAGI) 17.12.2020 JUDGE kavneet singh/vinay

Whether speaking/reasoned : Yes Whether reportable : Yes

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