Crl. Writ Petition No.1253 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Writ Petition No.1253 of 2011 Date of decision: July 08, 2011 Kanwaljit Kaur .....Petititoner VERSUS State of Punjab and others .....Respondents CORAM: HON'BLE MR JUSTICE T.P.S.MANN PRESENT: Petitioner in person with Mr S.S.Momi, Advocate for Mr Deepak Sonak, Advocate Mr Gaurav Garg Dhuriwala, Deputy Advocate General, Punjab for respondent Nos. 1 and 2. Respondent Nos.3 and 4 in person with Mr Veneet Sharma, Advocate. T.P.S.MANN, J. (Oral): The petitioner, who is the mother of Jashan Preet Kaur, a young girl, aged about 6 years, filed the present petition under Article 226 of the Constitution of India for seeking her custody from respondent Nos.3 and 4, her grand parents, with whom she had been living. The petitioner was married to Ishwinder Singh, son of respondent Nos.3 and 4, on 15.1.2005. From this wedlock, a daughter, namely, Jashan Preet Kaur was born on 13.10.2005. In the month of April, 2008, the petitioner and Ishwinder Singh left for Australia on student visa and while doing so, they left Jashan Preet Kaur with respondent Nos.3 and 4. Jashan Preet Kaur was also granted visa in April, 2008 so as to join her parents and the said visa was valid uptil September, 2009. In the month of August, 2009, respondent Nos.3 and 4 visited Australia and while doing so, Crl. Writ Petition No.1253 of 2011 -2- they took Jashan Preet Kaur with them. During the stay of the petitioner and Ishwinder Singh in Australia, there arose certain matrimonial differences between them. So much so, the petitioner was not allowed to meet her minor daughter Jashan Preet Kaur. The petitioner then instituted an application before the Federal Magistrates Court of Australia wherein vide order dated 25.8.2009 (Annexure R-1), it was decided that she would spend time and communicate with Jashan Preet Kaur liberally, either by making telephone calls or by sending letters, greeting cards, email and gifts. Ishwinder Singh was directed to facilitate such communications as soon as practicable and ensure that any correspondence and gift packages were delivered to the child without being opened or tampered with. Despite the same, the matrimonial differences between the petitioner and Ishwinder Singh reached to such an extent that their marriage stands dissolved by a decree of divorce dated 1.4.2010 (Annexure P-2). In the meanwhile, Jashan Preet Kaur came back to India and started residing with respondent Nos. 3 and 4, who have since got her admitted in Harkishan Public School, Amritsar, where she is presently studying. During one of the visits of the petitioner to India, she instituted a petition under Section 25 of the Guardian and Wards Act for taking custody of Jashan Preet Kaur. Similarly, she also instituted a criminal complaint under Sections 406/498-A IPC against respondent Nos. 3 and 4 as well as their son Ishwinder Singh. The matter was, however, patched up by the parties by entering into an agreement (Annexure P-1). It was stipulated therein that the petitioner would withdraw the petition for obtaining custody of the child as well as criminal complaint under Sections 406/498-A IPC. On her doing so, she was permitted to take the custody of Crl. Writ Petition No.1253 of 2011 -3- Jashan Preet Kaur and in the event of her doing so, Ishwinder Singh as well as respondent Nos.3 and 4 would not create any hindrance and would hand-over the child to the petitioner. It has not been denied by learned counsel for respondent Nos.3 and 4 that the criminal complaint under Sections 406/498-A IPC has already been withdrawn by the petitioner. As regards the petition under Section 25 of the Guardian and Wards Act for obtaining custody of Jashan Preet Kaur, the same, according to respondent Nos.3 and 4, was not withdrawn by the petitioner. However, the fact remains that the said petition was dismissed vide order dated 20.5.2010 (Annexure R-2) under Order 9 Rule 3 CPC as neither the petitioner nor her counsel appeared in those proceedings. In view of the aforementioned circumstances, the petitioner has already performed her part of the agreement by withdrawing the criminal complaint under Sections 406/498-A IPC as well as not prosecuting her petition under Section 25 of the Guardian and Wards Act. She has become entitled to obtain the custody of Jashan Preet Kaur, her minor daughter, in view of the specific stipulation in para 7 of the agreement (Annexure P-1). Learned counsel for respondent Nos.3 and 4 has submitted that his clients have been looking after Jashan Preet Kaur, the child in question, ever since the month of April, 2008. They have reared the child in the best possible way. They have been able to get her admitted in a reputed school at Amritsar. Therefore, it is in the interest of the child that respondent Nos.3 and 4 be allowed to keep her with them. On the other hand, learned counsel for the petitioner has submitted that the child being about 6 years of age, she needs care and attention of the petitioner, who is her mother. It has also been submitted Crl. Writ Petition No.1253 of 2011 -4- that the petitioner is natural guardian of the child and has a better right than respondent Nos.3 and 4 in obtaining the custody of the child. After hearing learned counsel for the parties, the Court is of the view that pursuant to agreement/compromise (Annexure P-1) arrived at between the petitioner through her mother, on the one hand and respondent Nos.3 and 4 for themselves and also on behalf of their son Ishwinder Singh, on the other, the petitioner has already fulfilled her part by withdrawing/not prosecuting the criminal complaint and the petition under Section 25 of the Guardian and Wards Act and has, therefore, made herself entitled to ask for the custody of the child in terms of para 7 of the aforementioned agreement. At this stage, learned counsel for respondent Nos.3 and 4 has expressed apprehension that the petitioner has to go back to Australia and the child cannot accompany her as there is no visa as of today granted to the child. The petitioner, who is present in person, informs the Court that she herself has a valid visa uptil 19.11.2011 to stay in Australia. Although the visa earlier granted to Jashan Preet Kaur in April, 2008 expired in September, 2010, yet the petitioner shall once again apply for obtaining further visa so as to enable Jashan Preet Kaur to accompany her to Australia. She has further stated that there would be no hitch with the Australian authorities in granting visa to Jashan Preet Kaur as the petitioner herself has a valid visa uptil 19.11.2011. The Court finds no fault with the stand taken by the petitioner. As the petitioner herself has a valid visa uptil 19.11.2011, she will not find it difficult to obtain necessary visa for Jashan Preet Kaur from the Australian authorities. Resultantly, the petition is allowed by granting custody of Crl. Writ Petition No.1253 of 2011 -5- Jashan Preet Kaur to the petitioner. Respondent Nos.3 and 4, who are present in person, have handed over the custody of Jashan Preet Kaur, alongwith her passport, to the petitioner so that she may take her to Australia. However, in case the petitioner leaves for Australia without taking Jashan Preet Kaur with her and instead leaves the child in the custody of her own parents, respondent Nos.3 and 4 would be at liberty to move an application before this Court for restoration of the custody of the child. (T.P.S.MANN) July 08, 2011 JUDGE Pds.