Sukhjinder Singh vs State Of Punjab And Others

CRWP-7881-2021 (O&M) Date of Decision: 14.09.2022

Sukhjinder Singh

....Petitioner(s) Versus

State of Punjab and others

.....Respondent(s)

CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI

Present: Dr. Rau P.S. Girwar, Advocate, for the petitioner.

Mr. Shiva Khurmi, AAG, Punjab.

Mr. H.S. Dhindsa, Advocate, for respondents No. 5 to 7. ****

JASGURPREET SINGH PURI, J. (Oral)

The present is a petition filed under Article 226 of the

Constitution of India which is primarily in the nature of a Habeas Corpus

seeking release of alleged detenue namely Jasnaaz Kaur who is the daughter

of the petitioner and respondent No.5 from the custody of respondent Nos. 6

and 7.

The facts which have arisen for filing of the present petition

are summarized as follows:-

The petitioner namely Sukhjinder Singh got married with

respondent No.5 namely Avneet Kaur on 29.11.2015 at Ludhiana which was

an arranged marriage. The couple was blessed with a girl child on

15.07.2017 at Ludhiana. After the marriage, the couple resided at

Ludhiana, Faridkot and some other places in Punjab since respondent No.5

was working as a Probationary Officer in a bank. Thereafter, the petitioner

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and respondent No.5 decided to move to Canada on the basis of Family

Permanent Residency System and in this way, the petitioner, respondent

No.5 and the girl child went to Canada on P.R basis on 24.04.2018. At that

time, minor girl was even less than 1 year. In Canada the family stayed with

one of the relatives of the petitioner from 28.04.2018 to 25.06.2018.

However, a matrimonial discord arose between the petitioner and

respondent No.5 and there were allegations of beatings by the petitioner

towards respondent No.5 and consequently, the respondent No.5 called the

police in Canada and respondent No.5 alongwith child were taken to

protection home where they stayed for two months.

Thereafter, respondent No.5 who is the mother of the girl child

filed custody proceedings before the Courts at Ontario in Canada and vide

Annexure P-2 an order was passed on 14.03.2019 by giving various

directions. One of the directions was that respondent No.5 shall deliver the

girl child to the parents of the petitioner in India on 18.03.2019. In case she

fails comply with the aforesaid directions, then immediately she shall

return the child to Brantford, Ontario, Canada and deliver the child into the

care of the petitioner. Various other directions were also issued pertaining to

costs etc. in this regard.

However, prior to the passing of the aforesaid order which was

passed on 14.03.2019, respondent No.5 alongwith minor child came back

to India on 13.01.2019 and they started living at Ludhiana at the parental

house of respondent No.5. After some time the child was admitted in Oquid

Pre School, Ludhiana and thereafter, she has now been admitted in DAV

Public School, Ludhiana and is now in Class UKG. At present the age of the

girl child is about 5 years.

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Both the petitioner and respondent No.5 are citizens of India

as of today as per the learned counsel for the parties and they are holding

Indian Passports. The same is the position with the girl child. However, the

petitioner has been staying in Canada on P.R basis and as per the learned

counsel for the petitioner as of now he has not been conferred with

citizenship of Canada.

On 28.02.2020 respondent No.5 went to Australia for pursuing

her Master course in Mathematics which was of about 2 years and learned

counsel for respondent No.5 has stated that the aforesaid course is now

going to be completed within a period of 2 months and thereafter, she will

be coming back to India and will reside in India. He further submitted that

respondent No.5 is Masters in Professional Accounting, BBA and MBA and

during the course of arguments, the learned counsel for respondent No.5 has

stated that he has sought specific instructions that respondent No.5 has got

a job offer from one international company by which she has an option for

working online from India itself through video conferencing and learned

counsel also specifically stated that he has instructions to say that

respondent No.5 has decided to come back after completion of course in 2

months and to reside in India as per job requirement.

Learned counsel for the petitioner submitted that the petitioner

is the father of the girl child and under Section 6 of the Hindu Minority and

Guardianship Act, 1956, he is a natural guardian being father of the child.

The petitioner is residing in Canada and is a well educated person. He is

M.Sc. in Environmental Science from Lovely Professional University,

Jalandhar and he is in transport business with good income. He submitted

that his wife had taken away the child on her own without the consent of

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the petitioner and there is no embargo or any other impediment qua the

petitioner whereby he can be denied the legal custody of the child especially

in view of the fact that he is the natural guardian of the child. He further

submitted that future prospects of the girl child are much more brighter in

Canada as compared to India not only with regard to her education but also

for her overall development. He further submitted that once a judgment has

been passed by the Courts at Ontario by which direction was issued to

respondent No.5 for the purpose of custody of the child to the parents of the

petitioner, respondent No.5 did not comply with the direction and the

aforesaid judgment Annexure P-2 has attained finality. He submitted that

the judgment of a Foreign Court is conclusive in terms of Section 13 of the

Code of Civil Procedure read with Section 41 of the Indian Evidence Act.

He relied upon a judgment of the Madras High Court in Dorothy Thomas

Vs. Rex Arul [2012(1) RCR (Criminal) 451] in this regard. He submitted

that since there is no impediment and there is nothing on the record to show

that the petitioner will not take care of the child, then by applying the test

regarding the welfare of the child i.e. welfare of the child is of paramount

consideration, the petitioner is entitled for the custody of the child. He

further submitted while referring to the judgment of Hon'ble Supreme Court

in Yashita Sahu Versus State of Rajasthan and others [2020(3) SCC 67]

that in such like circumstances a writ in the nature of Habeas Corpus will

be maintainable and has therefore prayed that the custody of the minor child

be handed over to the petitioner.

Mr. Shiva Khurmi, learned Assistant Advocate General, Punjab

has submitted that since it is dispute pertaining to the custody of the child,

the State does not have much role in the present case.

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On the other hand, Mr. H.S. Dhindsa, learned counsel appearing

on behalf of respondents No. 5 to 7 submitted that respondent No.5 who is

the mother of the girl child is a highly educated lady and has now done her

Master from Australia with a job offer from an international company. He

submitted that right from the birth of the child the girl child had been

staying with respondent No.5 continuously and respondent No. 5 being the

mother of the child has the natural love and affection especially considering

the fact that the child is a girl child and for her up bringing and care, there is

a requirement of mother and the mere fact that the petitioner is a natural

guardian by virtue of Section 6 of the Hindu Minority and Guardianship

Act, 1956 will not make any difference. He further submitted that it is not a

case that there is any kind of impediment qua the present respondent No.5,

whereas on the other hand, the girl child can be taken care of properly by

the mother. He further submitted that the conduct of the petitioner whereby

he had given beatings to respondent No.5 while in Canada and they were

forced to stay at protection home for long period of time itself would

disentitle the petitioner for claiming the custody of the girl child. He

submitted that although the child was of very tender age at that point of

time but she would have certainly experienced the trauma whereby

respondent No.5 was forced to live at protection home and consequently, she

decided to come back to India to stay with her parents. He submitted that

there is no impediment with regard to any financial constraints of

respondents No. 5 to 7. The minor girl child has a fixed deposit of Rs.

7,00,000/- in her name which was got deposited by respondents No.6 and 7

who are the maternal grand-parents. Apart from the same, respondent No.5

has a plot at Ludhiana with a value of approximately Rs. 80,00,000/- and

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respondents No.6 and 7 are also retired persons and are pensioners.

He further submitted that although there is no litigation pending

at any Court in India between the petitioner and respondent No.5 but

respondent No.5 contemplates to exercise her statutory rights for moving

appropriate petition under Section 125 of the Code of Criminal Procedure

apart from any other remedy available to her in accordance with law. He

further submitted that the petitioner has now obtained divorce from

respondent No.5 from the Courts in Canada. During the course of

arguments, a specific query was put to the learned counsel for the petitioner

with regard to the verification of the aforesaid aspect. The learned counsel

for the petitioner after taking instructions from the parents of the petitioner

who are present in the Court stated that it is correct that the petitioner has

taken divorce from respondent No.5 from the Courts at Canada in the month

of April, 2022.

Mr. H.S. Dhindsa, Advocate has further submitted that in view

of the aforesaid position, it will not be in the interest of the girl child to send

her back to Canada to the petitioner.

I have heard the learned counsel for the parties.

The law with regard to grant of custody of a child is no longer

res integra. The test to determine the custody of a child has always remained

the same i.e. the welfare of the child is of paramount consideration. The

aforesaid test although being a litmus test is also coupled with another test

as acknowledged by the Hon'ble Supreme Court in Nil Ratan Kundu and

another Versus Abhijit Kundu [2008 (9) SCC 413] that the wish of the

child is also an important factor which can in certain circumstances

supplement the aforesaid test. So far as the maintainability of the present

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petition for Habeas Corpus is concerned, Mr. H.S. Dhindsa, learned counsel

has submitted that he is not objecting to the maintainability of the present

petition since now it is a settled law that in such like matters a writ in the

nature of Habeas Corpus is maintainable. Therefore, considering the

aforesaid test, this Court has to consider two things.

1. In whose custody the welfare of child would be best

secured?

2. What is the wish of the child?

The Hon'ble Supreme Court in Nil Ratan Kundu and another

Versus Abhijit Kundu (Supra) observed that although it is difficult to

answer the complex question with regard to the custody of child but the

Court should always keep in mind relevant statutes and the rights flowing

therefrom. It is a humane 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 well-being of the child. In selecting a guardian, the Court is

exercising parens patriae jurisdiction and is expected to give due weightage

to a child's ordinary comfort, contentment, health, education, intellectual

development and favourable surroundings. But over and above physical

comforts, moral and ethical values cannot be ignored. If a 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. The relevant

portion is reproduced as under:-

"56. In our judgment, the law relating to custody of a child is

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fairly well-settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a humane 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 well-being 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, 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."

The arguments which were raised by the learned counsel for the

petitioner that vide Annexure P-2 the Courts at Canada have already

decided with regard to the custody of the child and by virtue of Section 13 of

the Code of Civil Procedure, the same is conclusive would not be of much

significance in the present case in view of the fact that a perusal of the

judgment relied upon by the learned counsel for the petitioner would show

that although foreign judgment is conclusive but where it does not recognize

law in India and it is founded on breach of any law which is in force in

India, then the same may not be conclusive in nature. In the present case,

the law which is applicable in India which is not only a statutory law but

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also based upon public policy is that notwithstanding any technicalities or

relationship inter se between the parties, the Court has to see the welfare of

the child which is the dominant factor whereas all the other factors are

subservient to the dominant factor. The norm which has been judicially

acknowledged and recognized in India is, in fact, a Grundnorm. The factors

which would weigh in the mind of the Court at the time of considering the

grant of custody in the present case would be as to (i) whether there is any

impediment or embargo qua any of the parties, (ii) whose custody would be

in the best interest of the child considering the facts and circumstances of

the present case and (iii) what is the wish of the child.

So far as the aforesaid first point is concerned, it has been stated

by the learned counsel for the parties during the course of arguments that the

petitioner has already got a divorce from respondent No.5 about a few

months ago in Canada and that divorce is already in operation as of today,

although it has been stated by the learned counsel for the petitioner that the

petitioner has not re-married as of now and therefore, this would be a

significant factor to arrive at a conclusion as to with whom the custody of

the child should be vested. This Court is of the view that once the petitioner

has now obtained divorce from respondent No.5, it will not be in the interest

of the child to vest the custody with the petitioner. So far as the comparison

with regard to any advantages or disadvantages are concerned, both the

parents are well educated. Respondent No.5 has already attained higher

education from Australia and has been offered a job. The maternal grand-

parents/respondents No.6 and 7 are also well edcuated and are earning

pension. There is a plot worth Rs. 80,00,000/- in the name of respondent

No.5. Morevoer, the learned counsel for respondent Nos. 5 to 7 had

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submitted that mother (Respondent No.5) will come back to India after

completion of her course. Therefore, it cannot be said that respondent No.5

will not be able to up bring the child in a proper manner with due care and

affection. The mere fact that the petitioner is settled in Canada cannot raise

any presumption that in Canada the child can be taken care of in a better

form since India also provides good opportunities in this regard. The third

factor which is to be considered is the wish of the child.

Respondent Nos. 6 and 7 have brought the girl child with them

today in the Court and this Court had an occasion to interact with the child

in the Chambers alongwith a lady Advocate of the Bar. During interaction,

the girl who is now at the age of 5 years although was not of that level of

maturity but it could be understood from her expressions and what she

expressed was that she has an inclination to stay with respondent No.5. She

also could not say anything about her father as probably she does not re-

collect. Although a comfortable atmosphere was provided to her so that

her desire can be ascertained but whatever could be extracted only indicated

her desire to live with her mother.

This Court would therefore apply the twin tests i.e. welfare of

the child to be paramount consideration and desire of the child and while

applying both the aforesaid tests, this Court is of the view that the welfare of

the girl child would be with her mother i.e respondent No.5. Apart from the

same, it cannot be said that the custody of the child is an illegal custody in

view of the judgment of the Hon'ble Supreme Court in Tejaswini Gaud and

others versus Shekhar Jagdish Prasad Tewari and others [2019 (7) SCC

42].

In view of the aforesaid position, the present petition is hereby

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dismissed.

However, since the petitioner is father of the girl child, it will

be necessary to provide him with some visitation rights. The petitioner shall

always be at liberty to visit and meet the girl child after prior appointment

with respondents No. 5 to 7 at least twice a year. In case he wishes to meet

the girl child at the place where she is residing, then respondents No. 5 to 7

shall be duty bound to permit him to meet her for a period of at least 5 hours

in one day in the house of respondents No. 6 and 7 or where the girl child is

residing.

This order would also not preclude any of the parties to avail

any other statutory remedy available to them under the special law, if any,

and in accordance with law.

14.09.2022 (JASGURPREET SINGH PURI) rakesh JUDGE Whether speaking : Yes/No Whether reportable : Yes/No

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