80 0 Crl Writ Petition No16 of201 1 IN THE GH COURT OF PUNJAB HARYANA AT CFNDIGARHe CrlWP0916 of201 1 1 Dateofdecisionl la62011 Singh eeePetitioner versus StateofPunjaband others 1 eee CORAM1HONBLE A JUSTICE JORA SINGH 0 C0 I Present MsJai ShreeThakur Advocate 49 for the MrASKhinda Advocate for Nol and 3 Z JORA SINGH J 2 C Singhflled thiswrit petition under Article 226 of the I Constitutionof India for issuance of a writ in the nature of habeas Z 1 corpuslwrit of rovingseekingreleaseof detenueAmber RajKour daughter 1 ofthepetitioner Oom thecustodyofprivate m Caseofthe petitioner is that he is an NIU and residentofEngland 7 Z AmberRajKour is about four years old and at presentis in illegalcustody Om of private was married with ParamjitKaur and was performed on 15102004 in India Atler that ParamjitKaur withthepetitioner had gone to Englandand in Englandtheygotmanied by Civil Services on 4A2005 Out of this wedlock one daughternamely Amber Raj Kour was born on 1162006 Petitioner with his wife and Amber RajKour was residing in Manchester and in the month of October 2009 petitioner and his familymembersincludinghis motherand brother plannedto visit India ParamjitKaur and Amber RajKour also came to Rawat Seema 2013.05.27 15: 47 True Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 81 0 CrlWrit PetitionNo16 of201 1 2 India along with the Grandmotherand uncle of the alsocame to India Alter reachingAmritsar Paramjit Kaur Amber Raj Kour grand mother and uncle of the had gone to house of PantmjitKaur Afler stayof two dayswith the at Amritsar Paramjit Kaur with her daughterAmberRajKour were brought to Village DudwindiDistrict by No and 3 ie parentsof 1 l Kaur ParamjitKaur was to visit her inmlawshousebut 0 Kaur alongwith the detenuehad not gone to her in4aws house 0 Petitionertried to contact Paramjit Kaur to enquire as to whyshe re81sedto I C5 return but Kaur re81sedto attendthe telephone of the I Petitioner and his mothercame back to England on 29102009 and found Z that Paramjit Kaur with her minordaughter had not gone to the houseofher r inelaws ParamjitKaur contacted to retum of Amber I RajKour and statedthat she does not want to came back to EnglandWith 1 4 the Then rehisedto handover passponof Amber Raj Z Kour Insteadofvisitingthe houseofthe ParamjitKaur had sent certainpersons to be from Police and demanded V7 Z of Amber Raj Kour When reAisedto hand over of minor daughter then he was threatenedwith dire consequences threat at the handsof antiesocialelements intimation was given to theBritish HighCommission in Delhi Then petitioner was to retum to Englandand on 12112009 had gone to Englandby fresh ticket ParamjitKaur in England was the to sendmoney to her parentstayingin Indiato construct a house butpetitioner refusedto sendpayment Paramjit Kaur has gone back to UK by leavingminor daughteragedabout 4 112 years in the custodyof Rawat Seema 2013.05.27 15: 47 True Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 82 0 10 CrlWrit Petition Nol6 of201 1 3 No2 and 3 Minor namelyAmber Raj Kour is in illegalcustody Nol and 3 In pursuance ofnotice replywas filed by No2 and 3 by this fact that Amber Raj Kour is the minor daughterof petitioner and ParamjitKaur but ParamjitKaur was turned out om the matrimonial home by the and his familymembers ln October m 2009 Paramjit Kaur with her minor daughter is residing While 0 givingcustodyof nunor daughter to the welfare of the minor 0 shall be the paramountconsideration and GuardianCourt afler 45 considering evidence on file is to opineas to whether custodyof mlnor Z daughter 1Sto be givento the petitioner or not From 2009 peoner 1S Z residing from his wife ParamjitKaur Complaints were sent 0 againstthe petitioner and his familymembers Passport ofminor daughter t was forciblykeptby the petitionerRequestwas made to hand over So that Paramjit Kaur was in a positionto take away minor CO daughter to Englandbut passportwas not handed over to ParamjitKaur ee Detenue is residingwith the answering Since October 2009 Z ParamjitKaur and minor were abandoned by the petitioner Qm Paramjit Kaur has gone back to England to getfresh passponof Amber Raj Kour Complaints were also sent againstthe petitionerand his family rnembersin England Learned counsel for thepetitioner arguedthatParamjitKaur is the legallywedded wife ofthe petitionerMarriage was solemnizedin India on 15 102004 Aer marriagepetitioner and ParamjitKaur had gone to EngIandwheretheygot marriedby Civil Services on 4A2005 From this wedlock minor daughternamelyAmber RajKour agedabout 4112 years Rawat Seema 2013.05.27 15: 47 True Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 83 0 CrlWrit PetitionNol6 of201 1 4 was born on 1162006 At presentmlnor 1S ln the custodyof Allegationofthe is thatcustodyofminor with Nol and 3 is illegalwhereas of Nolld 3 is that minor daughter is not in their illegalcustody In fact passportof minor daughter was taken away bythe Atler that refusedto hand over thepassportParamjit Kaur hasgone to 1 C to getfresh passportof minor daughterControversyamongstthe 0 is whethercustodyofminor with No2 and 3 1S 0 illegalWelfareofthe minor child is paramount consideration I 0 Leamedcounsel for the argued that with his I wifeand detenuecame to India Petitioner Paramjit Kaur and detenueare Z the citizens of UK Birth of the detenue in UK was on 1162006 Ir Petitioneralongwith his wife and detenuecame to India After shortstayat I herinelawshouse Paramjit Kaur alongwith minordaughter had gone to her 11 L3 parental house Later on Kaur had refused to accompany the and hand over the custodyof minor daughterWhile leaving OQ minor in thecustody No and 3 Paramjit Kaur has 7 Z gone to UK Arguedthat at presentminor daughter is in the illegalcustody Ll of No and 3 While in Court No2 and3 affidavit to the effectthattheyare readyto rehabilitatetheir with thepetitionerParamjit Kaur can be summonedfromEngland to jointhe companyofthe petitionerPetitioneragreed to anange ticket for Kaur but No2 and 3 were to supplycouect addressof Paramjit Kaur Address supplied by No2 and 3 is not correct Arguedthat if custodyof minor daughteris handed over to the petitioner thenpetitioner is to takeback minor daughter to EnglandIn case Paramjit Rawat Seema 2013.05.27 15: 47 True Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 84 0 1 Crl Writ Petition Nol6 of201 1 5 1 Kaur wams custodyof minor daughterthen she is at libertyto concemedCourt in UK Petitioneris readyto depositpaymentto anange ticketof Paramjit Kaur but correct addresswas not suppliedThat means Pait Kaur is not interestedto retum to India to accompanythe sothat alongwith ParamjitKaur and minor daughter can go back to England 1 Learned counsel for No2 and 3 statesthat minor O daughter 1S about 112 years old Remedywith the petitioner1S to 0 I the Guardian Court Then GuardianCourt will decide as to C5 whether custodyof mtnor 1Sto be givento the or not I keeping ln view the interestand welfare of the minor Leamed Z counsel for No2 and 3 placedreliance on 200141RCR 19 s L 532 Zorawar SinghAtwal VS Smt Rachna and 200021RCR Civill 367 t SaritaShannavs Sushil Sharma After goingthroughthe flle I am ofthe opinionthat submission of learned counsel for the petitionerseems to be reasonable one Q0 petitioner has married with Paramj it Kaur Marriage was 17 Z solemnized on 1510004 in India After marriagepetitioner with Paramjit ll Kaur had gone to Englandwhere theygot marriedby Civil Serviceson 4A005 Out of this wedlock one minor daughternamelyAmber Raj Kour was born on 116 2 006 At presen Amber Raj Kour is in the custody No2 and 3 Allegation of the petitioner 1S that petitioneralongwith Paramjit Kaur detenueand other reIationscame to India in the month of October 2009 A8er short staywith thepetitionerParamjit Kaur alongwith Amber RajKour came to her parentalhouse in District KapurthalaBut later on Rawat Seema 2013.05.27 15: 47 True Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 85 7 0 V Cv CrlWrit Petition No16 of201 1 1 Paramjit Kaur with minor daughter re8lsedto accompanythepetitionerAt presentParamjitKaur lS ln EnglandMinor daughter is in the custodyof Nol and 3 On 163001 leamed counsel for the made statement thatpetitioner is readyto maintain his wife andthe detenueand submitted affidavitofthe in this regardin Court 1 0 Nol and 3 were also presentin Court and flled joint 0 affidavitto the effect that theyare ready to rehabilitatePait Kaur with 0 the ParamjitKaur lS to be summonedfrom Englandto jointhe 0 In view of the ofYer of and No and 3 Z Alrther statedthat he is readyto arrangeticket ofParamjit Kaur to 2 l return from Englandbut No and 3 failed to supplyconect addressofParamjit Kaur Z File shows that has sent againstParamjit Kaur and this fact is clear from the copy of complaint Pe39 m Annexure P2 is the copy of marriage certificatewhereasAnnexure Pml 1S V Z the entryofbirth in Births and DeathsRegisterAccording to documenwy ll proofdetenue is the daughter ofthe petitioner and Paramjit Kaur Detenue is minor ParamjitKaur has also sent againstthe petitioner ofone ofthe complaint dated 12112009 byParamjitKaur is on the file of the complaints on file shows that and ParamjitKaur are not havingcordial relations but while disposingof the wnt of habeas corpus Court 1Sto see whether custodyof detenue with Rawat Seema 2013.05.27 15: 47 True Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 86 0 1 1 CrlWrit PetitionNol6 of201 1 7 private is legalone or illegalNo findingbyanyauthority that fIled by the ls correct one and complaintfiled by Paramjit Kaur is false one One partyis levelling againstthe secondparty Matrimonial dispute amongsthepetitioner andhiswife As observed earlier petitioner was readyto depositpaymentor arrangeticket for the retum of ParamjitKaur So that petitioner can take e 0 back ParamjitKaur and minor daughter to Englandbut correct addressof 0 ParamjitKaur was not supplied In the absence of correct address of C0 I PanlmjitKaur petitioner was not ln a positionto depositpaymentto C arrange ticket IfParamjit Kaur was readyto accompanythepetitioner with I minordaughter and was not readyto maintainthem thenParamjit Z Kaur should have filed application under Section 125 CrPC or petition C4 for restitutionof conjugalrights In case thereis any groundfor divorce 1 then she can easilyfile petitionfor divorce but exceptpresentwrit petition t0 no otherlitigationamongstthepetitioner andhis wife Paramjit Kaur m While stayingin India if Paramjit Kaur was readyto accompany V the petitioner then sheshould have filed petitionfor restitutionof conjugal Z rightsor under Section 125 CrC She could easilysend Ll complaint to policeif petitioner was not readyto maintain her and minor but till todayno complaint to any authorityWithout filingany complaintto any ParamjitKaur has gone back to UK while leaving minor daughter in the custodyof No and 3 In case Paramjit Kaur was interested to take away rninor to UK and passport of minor daughter was with the petitionerthen complaint could easilybe sentto the concernedpolicestation that petitioner1Snot handing over passportof the detenue If ParamjitKaur was reallyinterestedto Rawat Seema 2013.05.27 15: 47 True Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 87 0 v CrlWrit Petition No916 of201 1 rnaintainminor daughter then therewas no idea to visit Englandbyleaving minordaughter in thecustody Nol and 3 Nol and 3 in Court but theyseem to be notliterateor financially sound Ifthe custodyofminor daughter is handed over to the petitionerthen petitioner 1S to take back herto UK In 1 will make arrangement for stayof minor He will also j provide 8lnds for admissionof minor daughter in a school He will also 0 contributefor health insurance and life insurance covers to the minor 0 daughter including other basic facilities C9 In Zorawar SinghAtwals case lpral detenuewas about 3112 I years old Habeascorpus by fMherunder Article 226 of Constitutionfor Z seekingcustodyof child Petition was dismissed on the groundthat father l mayapproach Guardian Court and Guardian Court will then decide the I of custody keepingin view the interest and welfare of the child j Z but lll the presentcase mother of detenueis not in India Sheis in UK 1 No and 3 are not flnancially sound and theyare old people 7 whereas is a youngman of about 27 years He is servingin UK Z So minor daughteris safe ln the hands of the because as Qm discussedearlier petitioner lS to provideeverything for the welfareof the minor child in UK In Sarita Sharmas case supral habeascorpus petitionby the husband to have custodyof nunor children Husband and wife lived in America Divorcepetition was also pendingin America Then wife came to India with the children havingAmerican Coun granting decree of divorce and also custodyof minor childret HighCoun custody of children to husbandwith pennission to take the children Rawat Seema 2013.05.27 15: 47 True Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 1 88 0 CrlWrit PetitionNo16 of2011 9 to America but order of High Court was set aside because the children desiredto staywith the motherand motherwas not lacking in takingcareof children educationetc But in the presentcase nothing on the Sle to show that No and 3 are in a positionto providebasicfacilitiesto theminor WithoutOlingpetition for maintenanceetc either in UK or in India ParamjitKaur byleaving minor daughter in thecustodyof 1 C Nol and 3 has gone to UIC Petitionerand minor daughter are 0 the citizens of UK couId be said if ParamjitKaur would have C I beenin India In that case could easilybe directed to 0 Guardian Court to have custodyof minor daughter becauseGuardianCourt afterevidenceis to opineas to whethercustody ofminor child is to be given Z to the petitionerkeeping in view the interestand welfareofthe child or the 2 child is to remainthecustody ofhermother I After mother fatheris the natural guardianof the minor child p1 t Z Custody ofminor child with No2 and 3 cannot be Iegal For the reasons recorded above I am ofthe opinion 00 in view the status of the petitioner and interestand welfareof the detenue 7 Z namelyAmber Raj Kour custodyof detenuein the absenceof Paramjit m Kaur should be handedover to the Afler gettingcustodyof minor daughterin UK petitioner lS to provideevery facilityto the minor ParamjitKaur is in UK and ifshe is ofthe view that custodyof minor daughter should be with her then she 1Sat libertyto approach the concemedCourt in UK to havecustodyofminordaughter as per law Petition is allowed Respondents No2 and 3 are directedto hand over custodyofminor daughternamelyAmber RajKour to thepetitioner Rawat Seema 2013.05.27 15: 47 True Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 89 0 CrlWrit Petition No916 of201 1 Atler custodyof minor petitioner 1Sto applyto the Embassyfor visaandtakeback minor daughter to UK at theearliest Petitionstands of 1e62011 JORA SINGH I pk JUDGE P 4 1 r 0 0 I C5 I Z n I Z CQ 7 Z Om Rawat Seema 2013.05.27 15: 47 True Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document