IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Writ Petition No. 1165 of 2008 Date of decision: 20th January, 2009 Gurmeet Kaur Batth … Petitioner Versus State of Punjab and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Premjit Kalia, Advocate for the petitioner. Mr. Mehardeep Singh, Assistant Advocate General, Punjab for the State. Mr. Navkiran Singh, Advocate for respondent No.3. KANWALJIT SINGH AHLUWALIA, J. Shahbaz Singh was born on 9th November, 2004 to Gurmeet Kaur Batth daughter of Amrik Singh Sandhu, resident of 73, Hepburn Street, Markham, Ontario L353Z9, from the loins of Ajaypal Singh Batth. Marriage between Gurmeet Kaur Batth and Ajaypal Singh Batth had turned sour and their matrimonial dispute had turned bitter. Instead of acting as two responsible adult citizens and loving parents, they have made Shahbaz Singh a pawn for their legal assault on each other. By way of present writ petition in the nature of habeas corpus, mother Gurmeet Kaur Batth, petitioner has approached this Court for production of Shahbaz Singh, a four years old minor child and thereafter entrustment to her. Petitioner is a citizen of Canada. She came to Amritsar in India for her marriage with Ajaypal Singh. The marriage was solemnized on 21st November, 2002 in Amritsar. After the marriage, petitioner returned to Criminal Writ Petition No.1165 of 2008 Canada in February, 2003 and sponsored immigration of her husband. As a result thereof, Ajaypal Singh reached Canada in June, 2003. Parents of Ajaypal Singh, Balwinder Kaur Batth and Dilsher Singh Batth, who are residents of village Bhilowal, Tehsil and District Amritsar, visited Canada to their son Ajaypal Singh and daughter-in-law Gurmeet Kaur on 18th February, 2006. They stayed their till 29th July, 2006. It is projected that petitioner, daughter-in-law requested and entrusted the custody of her son Shahbaz Singh to her mother-in-law, Balwinder Kaur Batth. Present writ petition has been filed by mother of Shahbaz Singh, Gurmeet Kaur seeking release of her son from the custody of her mother-in-law, Balwinder Kaur Batth. Balwinder Kaur Batth had filed a petition under Section 7 of the Guardians and Wards Act, 1890 for her appointment as Guardian of Shahbaz Singh in her capacity as grandmother. She has remained unsuccessful upto High Court. Therefore, a Coordinate Bench, on December 4, 2008, in the present petition, ordered that file of Civil Revision No.757 of 2008 be also requisitioned. Therefore, for reference, record of Civil Revision No. 757 of 2008 is available with this Court. In the present writ petition, it has been averred by the petitioner mother that after the birth of son Shahbaz Singh in November 2004, she along with her husband visited India and returned to Canada in early 2005. It has been stated in the petition that after return to Canada, the marital relations between Gurmeet Kaur Batth and Ajaypal Singh Batth deteriorated. She was victim of mental and physical abuse at the hands of Ajaypal Singh Batth. She has further stated that in order to improve her marital relations, she moved with Ajaypal Singh Batth and had set up a separate house but their relations, instead of improvement, further went downward, as husband was unemployed. It has been further stated that parents of her husband visited her and when they came back to India in 2 Criminal Writ Petition No.1165 of 2008 July, 2008, her husband Ajaypal Singh Batth allowed his parents to take his son Shahbaz Singh with them to India. It is stated that she was assured that the child will stay with her in-laws only for three or four months. It has been further averred that she was reluctant, but to quell anger and threats of her husband of divorce, she, under pressure, agreed to her son being taken to India by her mother-in-law. According to the petitioner, her entreaties for calling back the child failed to impress her husband and it finally resulted in quarrel in 2006 and she left Ajaypal Singh and came to her parents’ house. She filed a petition before a Canadian Court for custody and return of her son Shahbaz Singh, as she had never given consent for taking her son, to be raised in India by her mother-in-law, according to her free will and violation. The order of the family Court in Canada, i.e., Superior Court of Justice, Ontario, has been reproduced in the petition and the same reads as under: “The Applicant Gurmeet Kaur Batth with her solicitor H.Mann. The Respondent, Ajaypal Singh Batth with his solicitor R.Sangha. The Court received evidence and heard submissions on behalf of the applicant Gurmeet Kaur Batth and the Respondent Ajaypal Singh Batth. THE COURT ORDERS THAT: 1. This is one of those rare situations where a motion should proceed before the case conference. 2. The child, namely Shahbaz Singh must be returned to this jurisdiction forthwith. Pending the case conference the primary residence of the child shall be with the applicant mother, Gurmeet Kaur. 3. The child shall have access to the Respondent father, Ajaypal Singh Batth every Saturday for the entire day, or alternate weekends from Friday evening to Sunday evening, and it is upto the Respondent father to choose. 3 Criminal Writ Petition No.1165 of 2008 4. The costs of today are reserved. The Honourable Justice Van Melle Judge February 8, 2007” Petitioner has submitted that this order was made subject matter of leave to appeal and stay by the husband, but appeal was heard on February 27, 2007 and was dismissed. Therefore, it is submitted that the Canadian Court had ordered entrustment of the child to the petitioner. In the present petition for habeas corpus, notice was issued. In pursuance of the order passed by a Coordinate Bench, the child was produced in the Court by grandmother and his father on January 7, 2009. On January 7, 2009; January 8, 2009; January 9, 2009 and January 12, 2009, mother was allowed to spend time with the child. On 12th January, 2009, the arguments finally concluded and the orders were reserved for pronouncement. In reply to the writ petition, it has been submitted that the child was entrusted to the respondent mother-in-law by the petitioner herself. A perusal of record of Civil Revision No.757 of 2008 titled ‘Balwinder Kaur Batth v. General Public and others’ shows that respondent relied upon travel permission given by the petitioner. The same has been annexed as Annexure P-1 with the Civil Revision and the same reads as under: “TO WHOM IT MAY CONCERN TRAVEL PERMISSION FROM PARENTS We, Mr.Ajaypal Singh Batth and Mrs.Gurmeet Kaur Batth, the undersigned, residents of 5 Black Cherry Lane, Brampton, Ontario, Canada L6R, telephone number (416)- 845-9731, are the biological parents and hereby give permission to our son Mr.Shahbaz Singh, born on November 9, 2004, with his grandparents Mr.Dilsher Singh Batth and 4 Criminal Writ Petition No.1165 of 2008 Mrs.Balwinder Kaur Batth, from Toronto, Canada to Amritsar, Punjab, India, in July 2006. Sd/- Ajaypal Singh Batth Canadian Permanent Card No.4451-5170 Sd/- Gurmeet Kaur Batth Indian Passport No.S780890 APPEARED before me, personally, today the above signed, Ajaypal Singh Batth and Gurmeet Kaur Batth, who identified themselves to me and who signed above in my presence, as and for their own acts and deed. DATED at Brampton, Ontario, Canada, this 17th day of July, 2006. Sd/- Lakhwinder Gill Barrister, Solicitor & Notary Public 1090 Peter Robertson Blvd., Suite 204, Brampton, ON, L8R 3B3 Tel: 905-790-0606 Fax: 905-790-0486 Seal” Respondent has further placed reliance upon the order dated February 8, 2007 of the Superior Court of Justice, Ontario, to state that it has been noticed there that mother is developmentally delayed. She lives with her parents and she holds down a job. That order has been annexed as Annexure P-2 with the Civil Revision and the relevant portion of the same reads as under: “In my view this is one of those rare situation where a motion should proceed before the case conference. The child is in India with the paternal grandparents. The mother says that the child was taken for a visit (to which she consented) but was not returned. 5 Criminal Writ Petition No.1165 of 2008 It is acknowledged that the mother is developmentally delayed. However, she lies with her parents and she holds down a job. Her parents are agreeable to assisting with the care for the child. The child must be returned to this jurisdiction forthwith. Pending the C/C the primary residence of the child is to be with his mother. He is to have access to his father being Saturday for the entire day or alternate weekends from Friday evening to Sunday evening it is up to the father to choose.” In the present petition and in the Civil Revision, respondent has relied upon medical record to state that it was suspected that petitioner is suffering from mind developmental delay or mental retardation. Therefore, she is not in a position to rear or up-bring the child and it will not be in the interest and welfare of the child that he is brought up by the petitioner mother. It has been urged before me that respondent grandmother has been taking care of her grandson since 18th February, 2006. It has been stated that the child remained with the grandmother in Canada from 18th February, 2006 upto 29th December, 2006 and thereafter, in India, where he has been sent to pre-school. On 27th February, 2007, respondent grandmother had approached the guardian Court at Amritsar. She pleaded in her petition under Section 7 of the Guardians and Wards Act that she be appointed as a guardian of the child as petitioner is having a mind developmental delay or mental retardation. It was further stated in that petition that the child Shahbaz Singh, due to proper care, love and affection of the grandmother, has grown up, to be a young bright child, due to family support, therefore, it is in the paramount interest and welfare of the child that he is allowed to remain in India with his grandmother. 6 Criminal Writ Petition No.1165 of 2008 Guardian Judge, Amritsar, on 19th January, 2008, had dismissed the application filed by the grandmother of the child and held as under: “It seems to be very surprising that respondent No.2 Ajaypal Singh Bath who is father of minor Shahbaz Singh instead of bringing up the minor child and instead of taking the responsibility of his wife has taken the custody of minor child from his natural mother and guardian Gurmit Kaur Bath and has filed the written reply in connivance with respondent/ petitioner Balwinder Kaur Bath to defeat the right of custody of applicant Gurmit Kaur Bath who is mother and natural guardian of minor Shahbaz Singh. In these circumstances, the application filed by Gurmit Kaur Bath who has been impleaded as respondent No.3 in the main petition is very much maintainable and applicant Gurmit Kaur Bath has been able to show prima-facie and even it has been admitted by respondent No.2 Ajaypal Singh that custody of minor has already been decided by the family Court at Ontario, therefore, the respondent/ petitioner Balwinder Kaur Bath has not been able to show how she is competent to file the present petition in India. In view the application filed by Gurmit Kaur Bath for dismissal of the petition is allowed and petition under Section 7 of the Guardian and Wards Act filed by Balwinder Kaur Bath being not maintainable and for want of jurisdiction stands dismissed.” The order of the Guardian Judge was assailed in a revision before this Court, which was dismissed on 15th October, 2008. From the narration of facts above, two facts emerge. Firstly, the family Court in Canada, i.e., Superior Court of Justice, Ontario had ordered that the custody of the child be given to the mother. That order was made subject matter of appeal by the father Ajaypal Singh Batth and the appellate Court upheld the decision of the family Court that mother Gurmeet Kaur Batth is entitled to custody of the child. Secondly, the 7 Criminal Writ Petition No.1165 of 2008 grandmother respondent Balwinder Kaur Batth had approached the Guardian Court for her appointment as guardian. Her prayer was declined by the Guardian Judge, Amritsar and order of the Guardian Judge has been affirmed by this Court in Civil Revision No.757 of 2008. Therefore, the argument that petitioner mother Gurmeet Kaur Batth has mental developmental delay or mental retardation, has been rejected, both by the Superior Court of Justice, Ontario and by Guardian Judge, Amritsar. Therefore, opposition on this score, in the present writ petition, is not permissible to the respondent mother-in-law Balwinder Kaur Batth or father Ajaypal Singh Batth. Mr. Navkiran Singh, appearing for the respondent mother-in- law, having failed to convince me on this score, had raised another argument that the present writ petition for habeas corpus is not maintainable and the mother should approach the Court of competent jurisdiction under Guardians and Wards Act. It has been urged that this Court cannot intervene and entrust the custody of the child to the mother, while exercising criminal writ jurisdiction for issuance of writ of habeas corpus, as the custody of the child was entrusted to respondent grandmother by the petitioner herself. Reliance has been placed upon travel permission given by the petitioner, which has been reproduced earlier, to state that once the mother herself gave the child to the grandmother, she can taken his custody only through the Civil Court or through the Court of competent jurisdiction under Guardians and Wards Act, and therefore, it has been stated that the present writ for habeas corpus is not maintainable. Whether this writ petition was maintainable or not, was a subject matter in another case ‘Gippy Arora v. State of Punjab and others’ Criminal Writ Petition No.543 of 2008, decided by this Court on November 25, 2008. The entire case law was dealt with by Hon’ble Mr. 8 Criminal Writ Petition No.1165 of 2008 Justice M.M.S. Bedi. In erudite judgment, after going into the entire conspectus of case law, had held as under: “Before passing any order regarding the custody of the child, the material question regarding the maintainability of habeas corpus petition in the matters of custody of minor child has to be determined. It is a settled principle of law that in all the disputes pertaining to the custody of minor child, the interest and welfare of the minor is the predominant criteria. The Hon’ble Supreme Court in Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw and another, AIR 1987 SC 3 was considering a dispute pertaining to custody of minor child in a criminal writ petition where one minor child was born of Indian father and American mother was an American citizen. On divorce of the parents his custody and guardianship had been entrusted to the mother by the competent Court of USA. The father was given visitation rights. He abducted the minor illegally in India. On a writ petition filed by mother for custody of the minor, it was held that mother was full of genuine love and affection for the child and she could be safely trusted to look after him, educate him and attend in every possible way to his proper up-bringing. The child’s presence in India was held to be a result of an illegal act of abduction and father guilty of said act was held not entitled to claim any advantage. Relying upon 1996 (1) All England Reporter 886, it was observed that it is the duty of Courts in all countries to see that a parent doing wrong by removing children out of their country did not gain any advantage by his or her wrong doing. A similar question has cropped up before this Court in a case of Marilynn Ainat Dhillon Gilmore @ Anita Dhillon Vs. Margret Nijjar and others, 1984 (1) I.L.R.(Punjab) 1, where the parents were citizens of United States but had come to India, the wife had filed a petition for custody of her minor child by filing a habeas corpus petition. It was held that High Court could go into the question of custody of the children in habeas corpus proceedings. In para 17 of the said judgment it was observed as follows:- 9 Criminal Writ Petition No.1165 of 2008 “17. Children need the love and care of both parents. If they cannot get it from both then at least they must get it from one. The course which would deprive them of both must be avoided and adopted as the last resort. Children are required to be in the custody of someone until they attain their majority. The Court in passing an order in writ jurisdiction in the matter has to deal it in equitable manner. It has also to give due weight to the claim of the respective parents founded on human nature and generally what is equitable and just. And irrespective of the rights and wrongs of the contending parents, the welfare of the children is the supreme consideration when employing the remedy of habeas corpus. It has rightly been observed by legal commentators that the proceedings of this kind partakes of the incidence of a suit in equity and is considered to by one in rem, the child being the res.” The custody of the child was handed over to the mother subject to her producing undertaking to execute bond before the High Court to produce the children whenever ordered by the High Court. In Syed Saleemuddin Vs. Dr. Rukhsana, AIR 2001 SC 2172, the Hon’ble Supreme Court considering the scope of habeas corpus petition regarding custody of minor children had held that the habeas corpus petition is maintainable. While granting the custody of the children to their mother till the family Court disposed of the petition for the custody of the children. It was observed as follows:- “From the principles laid down in the aforementioned cases it is clear that in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court. 10 Criminal Writ Petition No.1165 of 2008 Unfortunately, the judgment of the High Court does not show that the Court has paid any attention to these important and relevant questions. The High Court has not considered whether the custody of the children with their father can, in the facts and circumstances, be said to be unlawful. The Court has also not adverted to the question whether for the welfare of the children they should be taken out of the custody of their father and left in the care of their mother. However, it is not necessary for us to consider this question further in view of the fair concession made by Shri M.N. Rao that the appellant has no objection if the children remain in the custody of the mother with the right of the father to visit them as noted in the judgment of the High Court, till the Family Court disposes of the petition filed by the appellant for custody of his children.” Similarly in the case of Mrs. Kuldeep Sidhu Vs. Chanan Singh and others, AIR 1989 P&H 103, where the mother had an order of interim custody in her favour from a foreign Court and the father had in an unauthorized manner removed the children from Canada to India, the habeas corpus petition was allowed and custody of the children was directed to be handed over to the mother. In Eugenia Archetti Abdullah Vs. State of Kerala, 2005 (1) RCR (Crl.) 259, a Division of Kerala High Court observed that for custody of children of less than 3 years lap of the mother is a natural cradle where the safety and welfare of children can be assured and there is no substitute for the same. In the said case custody of the minor children below 3 years was with father. The wife had claimed custody by filing habeas corpus petition. It was held following the judgment of the Supreme Court in Manju Tiwari Vs. Rajendra Tiwari, AIR 1990 SC 1156, that High Court can exercise jurisdiction vested in it under Article 226 of the Constitution of India with respect to the issuance of a writ of habeas corpus when there is illegal detention or wrongful custody. Similarly a division Bench of Gujarat High Court in Surabhai Ravikumar Minawala Vs. State of Gujarat, 2005 (2) RCR (Civil) 822 also the habeas 11 Criminal Writ Petition No.1165 of 2008 corpus petition of the mother regarding custody of 9 months’ old child was allowed holding that no amount of wealth can take the place of mother’s care and love. Similar question had arisen before this Court in Manjit Kaur Vs. State of Punjab, and Crl. W.P. No. 608 of 2008, decided on August 14, 2008 where a minor child of 9 months was taken away by his grand-parents when their daughter-in-law, an NRI, had come from abroad for a short period. This Court had held relying upon Manju Tiwari’s case (supra) that habeas corpus petition was maintainable as the child has been illegally snatched away from the mother. Custody of the child was handed over to the mother leaving the parties to avail other remedies in accordance with law. On the other hand, Mr. Jauhar, counsel for the respondents has vehemently contended that habeas corpus petition for custody of the child is not maintainable. The only remedy available to the petitioner is to approach the Family Court where the matrimonial dispute is pending and it should be left to the discretion of said Court to determine the welfare of the minor child. He places strong reliance on the judgment of Sheela Vs. State of NCT of Delhi and another, 149 (2008) Delhi Law Times 476 (DB). I have carefully gone through the said judgment. In the said case in a writ petition custody of the child was given to the wife subject to certain conditions on the basis of undertaking given by wife but on her failure to comply with the interim directions the custody was again handed over to the father. The conduct of wife was unfair. The writ petition was dismissed leaving the parties to battle out the custody of the child in appropriate forum. No absolute rule or law was laid down regarding non-maintainability of the writ petition. Counsel for the respondents places reliance on a judgment of the Supreme Court in Saihba Ali Vs. State of Maharashtra and others, (2003) 7 SCC 250. In the said case, custody of the minor child was with the grand-parents under the orders of competent Family Court. Wife had field a petition under Article 32 of the Constitution of India seeking a writ in the nature of habeas corpus directing the respondents 12 Criminal Writ Petition No.1165 of 2008 to produce the minor child and handover the custody of the same to her. The Supreme Court held that the writ was not maintainable but observed in para 5 of the judgment that to do complete justice, the Court could pass an order in the interest and welfare of the minor children that mother be given the visiting rights, but it was never laid down that no relief could be granted in a writ petition to do complete justice even in writ petition. He also placed reliance on a judgment of Allahabad High Court in Manjula Jha Vs. Ravindra Nath Jha, 1998 (1) All India Hindu Law Reporter 273. In the said case, mother had sought production of the child and delivery of the child to her in