Crl. W. P. No. 162 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. W. P. No. 162 of 2010 Date of Decision : September 20, 2011 Amardeep Pal Singh Mahal .... Petitioner Vs. State of Punjab and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Pritpal Nijjar, Advocate for the petitioner. Mr. Ranbir Singh Rawat, AAG, Punjab for respondents no.1 to 3. Mr. Jaideep Verma, Advocate for respondents no.4 to 6. * * * L. N. MITTAL, J. (Oral) : In matrimonial dispute between husband and wife, mostly arising out of false ego or non-adjustment, it is the child who bears the burnt. The present Habeas Corpus writ petition is stark illustration of this scenario. Marriage of respondent no.4 Ramanjit Kaur Mahal was solemnized with petitioner Amardeep Pal Singh Mahal on 15.10.2006 in Crl. W. P. No. 162 of 2010 2 India. The petitioner is resident of United Kingdom (UK). Respondent no.4 went to UK in March 2007. Out of this wedlock, Gurleen Kaur Mahal – respondent no.6 was born on 12.01.2009 in UK. Respondent no.4, along with respondent no.6, came from UK to India at the end of April 2009, probably on 29.04.2009, with return tickets for UK for 23.05.2009. However, respondent no.4 did not return to UK and is still in India along with respondent no.6. The petitioner filed custody and guardianship petition under the Children Act, 1989 of UK for a residence, contact or other Section 8 order in UK Court. The said Court passed orders dated 19.08.2009, 11.09.2009, 16.10.2009 and 14.12.2009 (Annexure P-5 Colly.) inter alia making respondent no.6 Gurleen Kaur Mahal a Ward of the said Court until further order and directing the defendant (respondent no.4 herein) to return Gurleen Kaur Mahal forthwith to the jurisdiction of England and Wales. Various other directions were also given. Petitioner has filed the instant Habeas Corpus writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure seeking writ/order/direction for recovery of respondent no.6 from the custody of respondent no.4 and her father Swarn Singh Gill – respondent no.5 and for production of respondent no.6 before this Court and for direction to respondent no.4 to remain present in Family Court in UK for custody proceedings of respondent no.6 who be allowed to Crl. W. P. No. 162 of 2010 3 travel to UK in the custody of the petitioner. Factual position has not been controverted by respondent no.4 in her reply. However, respondent no.4 has otherwise opposed the writ petition on various grounds. I have heard learned counsel for the parties and perused the case file. Before proceeding to deal with the contentions raised by counsel for the parties, it has to be noticed that during pendency of this writ petition, on 06.10.2010, the petitioner offered to bear all travelling expenses of all the respondents for compliance of the order passed by Family Court in UK. In view of said offer, this Court, vide order dated 06.10.2010, directed the petitioner to deposit Rs.4,00,000/- with the Registry of this Court up to 09.11.2010 to establish bona fide of the petitioner to resume co-habitation with respondent no.4 and to facilitate compliance with the order passed by Family Court in UK. The case was adjourned to 16.11.2010. On 16.11.2010, counsel for respondents no.4 to 6 submitted that if the petitioner was ready to bear the expenses, respondent no.4 was ready to go to UK to comply with directions of the Family Court. On request of counsel for the petitioner, the case was adjourned to 15.12.1010 (taken up on 20.12.2010) and then adjourned to 15.03.2011. On 15.03.2011, counsel for the petitioner stated that in lieu of deposit of Rs.4,00,000/-, the petitioner was ready to sponsor the visit of respondents no.4 and 6 (to UK). The case Crl. W. P. No. 162 of 2010 4 was adjourned to different dates. Again on 18.05.2011, counsel for respondents no.4 to 6 stated that respondents no.4 and 6 were ready to accompany the petitioner (to UK) if he arranged tickets, food, residence etc. for them. Counsel for the petitioner sought adjournment to file affidavit in this regard. Case was adjourned to 15.07.2011 and then to 17.08.2011. Affidavit of petitioner was filed on 17.08.2011 offering to bear expenditure of respondents no.4 and 6 for being taken to UK and also to maintain them in the matrimonial home there. However, in view of past conduct of the petitioner, the offer made by the petitioner in the affidavit could not be taken at face value. In view of this observation by this Court, counsel for the petitioner undertook to deposit Rs.4,00,000/- with the Registry of this Court within two weeks to depict bona fide of the petitioner regarding his offer made in his affidavit. The petitioner was accordingly directed to deposit the said amount with the Registry of this Court. However, the amount has not been deposited. Counsel for the petitioner, relying on judgments of Hon'ble Supreme Court in the cases of Shilpa Aggarwal vs. Aviral Mittal and another reported as JT 2009 (15) SC 188 (hereinafter called case of Shilpa Aggarwal – I) and V. Ravi Chandran vs. Union of India and others reported as (2010) 1 Supreme Court Cases 174 contended that in view of orders passed by Family Court in UK, respondent no.4 is obliged to take respondent no.6 to UK and to submit to the jurisdiction of Family Crl. W. P. No. 162 of 2010 5 Court in UK. Counsel for respondents no.4 to 6 submitted that respondents no.4 to 6 have already submitted that respondents no.4 and 6 are ready to go to UK provided the petitioner agreed to bear the expenses of their travel, food, shelter etc. in UK, but the petitioner, by seeking adjournments and by not depositing the amount of Rs.4,00,000/- with the Registry of this Court and by not complying with the orders dated 06.10.2010 and 17.08.2011, has depicted that he is not ready to bear the expenses of respondents no.4 and 6. Counsel for the respondents has cited judgment of Hon'ble Supreme Court in the case of Shilpa Aggarwal vs. Aviral Mittal and another reported as 2010 (3) Civil Court Cases 320 (S.C.) (hereinafter called case of Shilpa Aggarwal – II). I have carefully considered the rival contentions. Conduct of the petitioner is not bona fide. As observed herein before, the petitioner offered to bear travel expenses of respondents no.4 and 6. To establish his bona fide, he was directed vide order dated 06.10.2010 to deposit Rs.4,00,000/- with the Registry of this Court, but he did not do so. The petitioner then filed affidavit on 17.08.2011 offering to bear the expenses. His counsel also undertook to deposit Rs.4,00,000/- with the Registry of this Court, but again the amount has not been deposited. Thus, it is manifest that the petitioner has taken this Court for a ride and has been playing hide and seek with the Court. This conduct of the petitioner has to be Crl. W. P. No. 162 of 2010 6 condemned in strongest terms. It is also manifest from this conduct that petitioner's offer in the affidavit filed on 17.08.2011 and also offer by counsel for the petitioner, as noticed in earlier orders, was not bona fide and was made just to mislead the Court and to obtain favourable orders. For this conduct, the petitioner has to be subjected to heavy cost. As regards necessary orders to be passed in the instant writ petition, in view of judgments in the cases of Shilpa Aggarwal – I) (supra) and V. Ravi Chandran (supra), cited by counsel for the petitioner himself and also in view of judgment in the case of Shilpa Aggarwal – II) (supra), the petitioner has to bear all the expenses of respondents no.4 and 6 for their travel to UK, food, stay, legal proceedings in Family Court in UK etc. Prima facie, it appears that the petitioner is not ready to do so. Consequently, conditional order has to be passed in the instant writ petition. Accordingly, the writ petition is disposed of with the following directions :- 1. The petitioner shall, within one month from today, deposit Rs.25,000/- as cost with the Registry of this Court for his above mentioned conduct. The other directions shall be subject to compliance with this direction as condition precedent. 2. The petitioner shall bear all the travel Crl. W. P. No. 162 of 2010 7 expenses of respondents no.4 and 6 from India to UK and if necessary, back to India. For this purpose, the petitioner shall deposit Rs.4,00,000/- with the Registry of this Court. 3. Marriage between petitioner and respondent no.4 has since been dissolved by ex-parte decree of divorce vide judgment and decree dated 01.08.2011 passed by learned Additional District Judge, Ludhiana. Consequently, petitioner has to make separate arrangement for boarding and lodging of respondents no.4 and 6 in UK. 4. The petitioner shall also bear expenses of respondent no.4 to defend the proceedings in Family Court in UK. 5. The petitioner shall also provide 300 pounds per month towards travel expenses for respondents no.4 and 6 during their stay in UK. Child benefit, which the petitioner has been receiving on account of expenses of the minor child – respondent no.6, shall also be handed over to respondent no.4 by the petitioner, if not legally prohibited from doing so. 6. The petitioner shall also provide initial Crl. W. P. No. 162 of 2010 8 amount of 200 pounds for medical expenses that may be incurred by respondents no.4 and 6. 7. The petitioner shall pay 1200 pounds per month towards food and daily inidental expenses of respondents no.4 and 6. 8. The petitioner shall also provide for health insurance and life insurance cover to respondents no.4 and 6 on their arrival in UK. 9. The petitioner shall pay 1600 pounds towards legal expenses to respondent no.4 for contesting the custody and guardianship case in Family Court in UK. 10. The petitioner shall also provide for laptop and printer for use of respondent no.4. If respondent no.4 has any Bank Account in UK, then she shall intimate the same to counsel for the petitioner and in that event, the petitioner may deposit the requisite amount in her said Account. The above directions have been given, keeping in view the judgment of Hon'ble Supreme Court in the case of Shilpa Aggarwal – II (supra). The petitioner shall furnish proof of compliance with aforesaid Crl. W. P. No. 162 of 2010 9 directions, in the Registry of this Court with copy to respondent no.4 or her counsel. On compliance with the aforesaid directions by the petitioner, respondent no.4 shall, within one month of receiving information of compliance of all the directions by the petitioner, proceed to UK along with respondent no.6, with prior intimation to the petitioner. If the above directions are not complied with within four months, the writ petition shall be deemed to have been dismissed. Even if the petitioner does not comply with the other directions, direction mentioned at Sr. No.1 regarding deposit of Rs.25,000/- as cost with the Registry of this Court has to be complied with and the said amount has to be deposited within one month from today, failing which the case shall be listed for this purpose. September 20, 2011 ( L. N. MITTAL ) monika JUDGE