-1- Criminal Writ Petition No.712 of 2010. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH -.- Criminal Writ Petition No.712 of 2010. Date of Decision: May 25 , 2010. Sukriti Arora daughter of Col. K.D. Prasher ...Appellant VERSUS State of Haryana and others ...Respondent 1. Whether the Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? CORAM : HON'BLE MR. JUSTICE MOHINDER PAL. Present: Petitioner Sukriti Arora in person along with her counsel Mr. Pritpal Singh Nijjar, Advocate. Ms. Sushma Chopra, Additional Advocate General, Haryana for the State-respondent. Respondent No.4 Jitender Arora in person along with his counsel Mr. Sudeep Mahajan, Advocate. -.- MOHINDER PAL, J. In this petition filed under Article 226 of the Constitution of India, the prayer made by Sukriti Arora (petitioner), who is mother of Vaishali Arora (minor daughter- -2- Criminal Writ Petition No.712 of 2010. respondent No.7) from the loins of Jitender Arora (respondent No.4), is for the custody of the minor daughter Vaishali Arora from Jitender Arora. The petitioner, who is now a citizen of United Kingdom, was married with respondent No.4 at Faridabad. They got their marriage registered on 14.12.1999 with the Registrar of Marriages, Faridabad as per Certificate dated 14.12.1999 (Annexure P-2). Out of this wedlock, Vaishali Arora (daughter-respondent No.7) was born on 14.1.2002, who has now attained British Citizenship as per Certificate of Registration as a British Citizen under the British Nationality Act, 1981, dated 10.3.2010 (Annexure P-3). After marriage of the petitioner with respondent No.4, she had moved to U.K on 23.03.2000. It has been stated by her in this petition that the relations between the husband and wife became strained after their marriage on account of the aggressive and violent behaviour of the husband. She further stated that during the course of their marriage, she had been repeatedly subjected to numerous incidences of domestic violence. In order to keep atmosphere in her in-laws' family congenial, the petitioner surrendered herself to the aggressive and violent behaviour of her husband. It has been further stated that when she was 33 weeks pregnant, at the instance of her husband, she flew to India and stayed with her in-laws where she gave birth to Vaishali Arora on 14.01.2002. The husband came to India for a very brief period and -3- Criminal Writ Petition No.712 of 2010. left immediately for the United Kingdom. She further mentioned that during her visit to India, during and post pregnancy times, her parents were harassed and were rudely treated both by her husband and his parents. She further stated that she, on her own, returned to United Kingdom with her daughter to join her husband on 16.03.2002. In May 2002, family of respondent No. 4 arrived in United Kingdom. At that time, her daughter Vaishali Arora was only 5 months old. Against ger wishes, the child was forcefully taken away by her in-laws to India in July, 2002. The petitioner, not being able to bare the separation of the child from her, flew back to India and retrieved her daughter from her in-laws. In the year 2003, the petitioner was able to obtain the services of a child- minder, as both she and her husband had procured well earning jobs. She further stated that her husband had a very dominating and aggressive attitude towards her which not only limited her socializing but also limited her desire to be in touch with her parents. The petitioner was blessed with second daughter, namely, Pushti Arora on 07.02.2007 in United Kigdom. However, despite this joyous moment, she and her family members had been meted out with rude and violent behaviour by her husband, which became worse on the arrival of her in-laws. Shortly thereafter, the husband left for India with his parents without informing the petitioner. At that time, their second child was not even 2 weeks old. On the return of respondent No.4 to United Kingdom from India, the petitioner being scared for herself and her daughters, managed -4- Criminal Writ Petition No.712 of 2010. to obtain interim order dated 16.03.2007 (Annexure P-4) from the District Judge, Manuel. The order dated 16.03.2007 (Annexure P- 4), for facility of reference, is reproduced hereunder:- “1. The Respondent Father shall be prohibited from removing the said children from the care and control of the applicant Mother or of any person who has care of the children on behalf of and with the consent of the Applicant Mother until further order of this Court. 2. The Respondent Father shall be prohibited from removing the said children from the jurisdiction of England and Wales until further order of this Court. 3. The Respondent Father shall deliver the passport of Vaishali Arora into the custody of Applicant Mother's solicitor within 72 hours of service of this order upon him. 4. Neither party shall make any further applications for British or Indian passports for either of the said children until further order of this Court. 5. A certified copy of this order shall be served upon both the British Passport Office and the Indian Consulate in London and New Delhi. 6. The respondent do have permission to -5- Criminal Writ Petition No.712 of 2010. apply to discharge this order on 48 hours notice. 7. The matter shall be further considered by the Court at 12.00 noon on 28 th March 2007.” However, these proceedings were withdrawn on 1.5.2007. It has been further mentioned in this petition that the petitioner was constrained to have a referral to Social Services due to the difficulties at home on account of the conduct of respondent no. 4. However, respondent no. 4 again flew back to India when he was to be visited by the activists of Social Services. The petitioner, due to the continuous erratic, violent and distant behaviour of respondent no. 4, filed an application for divorce, ancillary relief proceedings and prohibitive steps applications. However, on the asking of her husband, she dropped the divorce proceedings and reconciled with him. In May, 2007, the petitioner, at the instance of respondent No. 4, came with him to India along with their daughter Pushti Arora for treatment as she (Pushti Arora) was suffering from convulsions and respondent No.4 was not feeling comfortable taking the child to hospital in United Kingdom. They reached India on 24.06.2007. The petitioner, after reaching India, got a rude shock from her husband, who stated that they would then be remaining in India. On 4.8.2007, respondent No.4 announced that he would -6- Criminal Writ Petition No.712 of 2010. be leaving for United Kingdom for 3 weeks in order to tie up things for good. It was a very crucial time for the petitioner as Pushti Arora at that time was not in a very good condition and was to go through various medical tests on account of her (Pushti Arora's) illness. Respondent No.4 did not return after 3 weeks. In fact, he returned to India after 8 months. During this period, the petitioner was frequently harassed and mentally tortured by her in-laws in India which led to her depression. On telling respondent No. 4 as to how unhappy the petitioner was, respondent No.4, instead of discussing and resolving the issues, slapped her. After this, relations between the husband and wife became more strained and the petitioner asked respondent No. 4 for a divorce. On hearing this, respondent No. 4 threatened the petitioner that he would take Vaishali Arora with him in case she sought divorce. It has further been mentioned in the petition that when the petitioner, after moving back to her parents, went to school to collect Vaishali Arora, she was told by the school authorities at Faridabad that she had already been picked up. On inquiring from her in-laws, the petitioner w as told that Vaishali Arora was with respondent No.4 and that the petitioner would not see her daughter unless she returned to live at their house. The petitioner finally got a call from respondent No.4 from United Kingdom that Vaishali Arora was with him and that the petitioner would never see her (Vaishali) again. The petitioner, on clearing the medical bills and -7- Criminal Writ Petition No.712 of 2010. conducting all the medical tests and surgeries for Pushti Arora, left for United Kingdom on 13.5.2009. On reaching there, she approached the police and was able to trace respondent No.4. The petitioner thereafter was able to obtain an ex parte order dated 4.6.2009 (Annexure P-5) from the District Judge, Darbyshire under Section 8, Children Act, 1989. The order (Annexure P-5) passed by the District Judge, Darbyshire, for facility of reference, is reproduced hereunder:- “1. There be an Interim Residence Order to the Applicant Mother, Sukriti Arora, in respect of Pushti Arora, dob 07.02.2007. 2. The Respondent father, Jitender Arora, shall not remove or attempt to remove either of the children, Vaishali Arora, dob 14.01.2002, or Pushti Arora, dob 07.02.2007, from England and Wales until further Order of the Court. 3. The Respondent Father, Jitender Arora, shall not remove the child, Vaishali Arora, dob 14.01.2002, from attendance at Alwyn Infants School, maidenhead, Berkshire Until further order of the Court”. On 17.11.2009, the Reading Court country in United Kingdom passed the order Annexure P-6 directing the petitioner -8- Criminal Writ Petition No.712 of 2010. and respondent No.4 to deposit with the Court the passports and travel documents of the children, which were not to be released without further orders of the Court. The petitioner thereafter on 17.11.2009 filed a petition for divorce along with ancillary relief against respondent No.4, which is pending before the Reading country Court in United Kingdom. On 25.11.2009, the petitioner received a call from Vaishali's school informing her that she (Vaishali) had remained absent and that repeated efforts of the school authorities to contact respondent No.4 had failed. Thereafter, the petitioner approached the police. The investigation by the police revealed that respondent No.4 had left for India on 24.11.2009. The petitioner, having no other alternative, approached the High Court of Justice Family Division and obtained on 13.12.2009 a wardship order (Annexure P-7) whereby Vaishali and Pushti were made wards of the Court during their minority or until further orders. On 18.12.2009, vide order Annexure P-8, it was further ordered by the High Court of Justice Family Division that respondent No. 4 must not remove or in any way dispose of or deal with the monies deposited in the Banks.. The petitioner, thereafter, on 17.02.2010 made an application through her Solicitor for issuance of a writ of sequestration and on 18.02.2010 vide order (Annexure P-9), leave -9- Criminal Writ Petition No.712 of 2010. was granted to issue the Writ of Sequestration. It has been further mentioned in the petition that respondent No. 4 had been, time and again, made aware of all the proceedings initiated against him in United Kingdom by the petitioner's solicitor through fax, e-mail etc. It has been further stated in the petition that respondent No.4, being well aware of the proceedings in United Kingdom, is deliberately avoiding them and staying in India in order to escape the arms of justice. On 23.4.2010, while issuing notice to the Advocate General, Haryana, for 6.5.2010, ordered that, in the meantime, respondent No.4 would not leave the country without permission of the Court and would bring respondent No.7 Vaishali Arora in Court on the date fixed i.e 6.5.2010. Necessary intimation in this regard was also ordered to be sent to the concerned Senior Superintendent of Police. On 6.5.2010, when no one attended the Court on behalf of respondent No.4, an intimation was ordered to be sent to the Ministry of External Affairs to flash a message to the concerned quarters in order to prevent disappearance of respondent No.4 from India. Further, fresh intimation was ordered to be sent to the Senior Superintendent of Police concerned. It was also ordered that the Station House Officer of the concerned Police Station, under the jurisdiction of which respondent No.4 was residing, would attend the Court on 12.5.2010 along with the report regarding the whereabouts of respondent No.4. On -10- Criminal Writ Petition No.712 of 2010. 12.5.2010, respondent No.4 appeared in Court along with the child i.e Vaishali Arora. Mr. Sudeep Mahajan, Advocate, appearing for respondent No.4 sought time to file reply and the matter was adjourned to 21.5.2010, on which date arguments were heard and judgment was reserved. In the reply filed to this petition by respondent No.4, he, besides stating that the petitioner has absolutely no love and affection for her daughter Vaishali Arora, inter alia, stated that Vaishali Arora is very happy living in India with her father. Respondent No.4 further stated that Vaishli Arora is currently studying in one of the best schools at Faridabad i.e Manav Rachna International School and never expressed any desire to be with her mother in England. After hearing Mr. Pritpal Singh Nijjar, Advocate, appearing for the petitioner, Ms. Sushma Chopra, Additional Advocate General, Haryana appearing for the State-respondent and Mr. Sudeep Mahajan, Advocate, appearing for respondent No. 4, I am of the considered opinion that the the petitioner is entitled to have the custody of Vaishali Arora (respondent No.7). The paramount consideration with regard to the custody of the minor daughter is her welfare and it is in the best interest of the child that her custody is provided to her mother. As noticed above, on 17.11.2009, the Reading Court Country in United Kingdom passed the order Annexure P-6 directing the petitioner and respondent No.4 to deposit with the Court the -11- Criminal Writ Petition No.712 of 2010. passports and travel documents of the children, which were not to be released without further orders of the Court. The order dated 17.11.2009 (Annexure P-6) was passed by the Reading Country Court upon hearing the Solicitors for the petitioner and respondent No.4. However, respondent No.4, instead of complying with the order (Annexure P-6), brought Vaishali Arora (respondent No.7) to India leaving the petitioner in lurch. Vaishali Arora, who was born on 14.1.2002, has attained British Citizenship as per Certificate of Registration as a British Citizen under the British Nationality Act, 1981, dated 10.3.2010 (Annexure P-3). In the case of V.Ravi Chandran (Dr.) (2) vs. Union of India and others, (2010) 1 Supreme Court Cases 174, cited by learned counsel for the petitioner, where the wife had brought the child to India, it was held by the Hon'ble Supreme Court that merely because the child had been brought to India, the custody issue concerning the minor child did not deserve to be gone into by the Courts in India and it would be in accord with principles of comity as well as on facts, to return the child back to the United States from where he had been removed, and enable the parties to establish their case before the Courts in the native State of the Child for modification of existing custody orders. In view of the above, the petitioner is legally entitled to be handed over the custody of the minor girl Vaishali Arora. Practically speaking, minor girls need their mother -12- Criminal Writ Petition No.712 of 2010. to understand girly things. It is well-said that a mother always has to think twice, once for herself and once for her child. The tie which links mother and child is of such pure and immaculate strength as to never weaken. Home for a little girl is that where her mother lives. A mother's love for her child is like nothing else in the world. For a little girl, mother is always there to support her whenever she needs her. Taking into consideration all the facts and circumstances of the case, this petition succeeds. The same is allowed. Jitender Arora (respondent No.4) is directed to hand over custody of Vaishali Arora (respondent No.7) to her mother Sukriti Arora (petitioner). Jitender Arora (respondent No.4), for handing over custody of Vaishali Arora and her (Vaishali Arora's) passport to Sukriti Arora, will appear on 4.6.2010 before the learned District and Sessions Judge, Faridabad, who will ensure compliance of this order. If the learned District and Sessions Judge, Faridabad, is not available on 4.6.2010, Jitender Arora (respondent No.4) will appear before the first Additional District and Sessions Judge, Faridabad, for complying with this order. Before parting with this judgment, it is made clear that in case Jitender Arora (respondent No.4) wants to take custody of Vaishali Arora (respondent No.7), he may join proceedings in this regard which were initiated at the instance of Sukriti Arora (petitioner) and are admittedly pending at -13- Criminal Writ Petition No.712 of 2010. United Kingdom. Copies of this judgment be supplied `Dasti' to the parties/their counsel against requisite fee. May 25 ,2010. ( MOHINDER PAL ) ak JUDGE