* IN THE
HIGH COURT OF DELHI AT NEW DELHI
+
W.P.(Crl.) 494/2010
SURJEET
SINGH ..... Petitioner
versus
STATE
& ANOTHER ..... Respondents
Advocates
who appeared in this case:
For the
Petitioner : Mr. Arunav Patnaik & Mr. D.B.Ray For the Respondent : Mr.
Ravinder Singh for R-2
CORAM:
HON'BLE
MR. JUSTICE BADAR DURREZ AHMED
HON'BLE
MR. JUSTICE V.K.JAIN
V.K.
JAIN, J.
This is a
petition under Article 226 of the Constitution of India seeking
issuance
of a writ/order/direction in the nature of habeas corpus to the respondents
to
produce minor children viz. Jasmine Kaur and Vaani Kaur, daughters of the
petitioner
before this Court and giving their custody to him.
Respondent
No.2 before this Court Mrs. Harpreet Kaur is the wife of the
petitioner
and their marriage was solemnized in India on 17.11.2003. The
petitioner
was a permanent resident of New Zealand prior to his marriage. In
February,
2004, both of them came to live in New Zealand. Respondent No.2 also
acquired
permanent residency of New Zealand in the year 2006. The petitioner
W.P(Crl.)
494/2010 Page 1 of 29 became a New Zealand citizen in March, 2008. Both the
children were born in
New
Zealand and consequently acquired citizenship of that country.
The
petitioner, respondent No.2 as well as both their children came to India
on
6.3.2009. The petitioner had planned to return to New Zealand on 10.4.2009,
whereas
respondent No.2 was to return on 12.6.2009 along with both the children.
It is
alleged that respondent No.2 refused to return to New Zealand and also
retained
the custody of the children with her, in India. On 25.2.2010 the petitioner
preferred
a petition before the High Court of New Zealand under the provisions of
Care of
Children Act, 2004, for placing his minor children under the guardianship
of the
Court at New Zealand. Vide order dated 12.3.2010, the High Court of New
Zealand
directed that both the children be placed under the guardianship of that
Court.
Respondent No.2 was directed to ensure that the children were returned to
the
jurisdiction of New Zealand court within two weeks. Since respondent No.2
did not
comply with the order passed by the New Zealand court, this petition has
been
filed seeking production and custody of the children.
2. The
petition has been opposed by respondent No.2. In her counter-affidavit
she has
alleged that she apprehends danger/threat to her life and lives of her
children,
if she goes to New Zealand. She also fears harassment by the petitioner,
who is
alleged to be violent by nature and guilty of treating her with utmost cruelty
on
numerous occasions. She has also submitted that the children are not in
W.P(Crl.)
494/2010 Page 2 of 29 wrongful custody, she being their mother and having
lawfully brought them to
India
along with the petitioner. It has been pointed out that this is not a case
where
children
have been brought to India in disobedience of an order of the foreign
court. It
is further submitted that the children being girls of tender age and
respondent
No.2, being their mother, the respondent No.2 is in a better position to
take care
of them. Referring to the e-mails sent by the petitioner to her and the
telephonic
conversation between them, respondent No.2 has alleged that in the light
of his
behavior, the petitioner is not entitled to any relief from this Court.
3. It is
an undisputed fact that both the children were brought to India jointly by
the petitioner
and respondent No.2. It is also not in dispute that when the petitioner
left for
New Zealand, respondent No.2 as well as children stayed back in India with
his
consent though they were scheduled to return to New Zealand on 12.6.2009 and
their
air-tickets for the travel had been booked in advance. The elder daughter viz.
Jasmine
Kaur was born on 16.9.2004 and the younger child Vaani Kaur was born
on
3.1.2008. Both these children were less than 5 years old when they were
brought
to India on 6.3.2009. Even as on today, Jasmine Kaur is about 7 ½ years
old,
whereas Vaani Kaur is about 04 years old. Section 6 of Hindu Minority and
Guardianship
Act, 1956 which applies to the parties, to the extent it is relevant,
provides
that the custody of a minor child, who has not completed the age of 05
years
shall ordinarily be with the mother. Hence, on the date these children were
W.P(Crl.)
494/2010 Page 3 of 29 brought to India, respondent No.2 being their mother, was
lawfully entitled to their
custody.
She continues to be entitled to the custody of Vaani Kaur, who is less
than 05
years old. Section 13(2) of the Act provides that no person shall be
entitled
to the guardianship by virtue of provisions of this Act or of any law
relating
to guardianship in marriage among Hindus, if in the opinion of the Court,
his or
her guardianship will not be for the welfare of the minor. Though the natural
guardians
are enumerated in Section 6 the right is not absolute and the Court has to
give
paramount consideration to the welfare of the minor.
4. In Syed
Saleenmuddin v. Dr. Rukhsana and Ors, (2001) 5 SCC 247, the
Supreme
Court dealing with a habeas corpus seeking custody of minor children,
inter
alia, observed as under:-
"11.
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."
In
Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, the Supreme
Court
quoted with approval the following statement of law in America with respect
to the
custody of a child in a habeas corpus matter:
W.P(Crl.)
494/2010 Page 4 of 29 "Generally, where the writ of habeas corpus is
prosecuted for the purpose of determining the right to custody of a child, the
controversy does not involve the question of personal freedom, because an
infant is presumed to be in the custody of someone until it attains its
majority. The Court, in passing on the writ in a child custody case, deals with
a matter of an equitable nature, it is not bound by any mere legal right of
parent or guardian, but is to give his or her claim to the custody of the child
due weight as a claim founded on human nature and generally equitable and just.
Therefore, these cases are decided, not on the legal right of the petitioner to
be relieved from unlawful imprisonment or detention, as in the case of an
adult, but on the Court's view of the best interests of those whose welfare
requires that they be in custody of one person or another; and hence, a court
is not bound to deliver a child into the custody of any claimant or of any
person, but should, in the exercise of a sound discretion, after careful
consideration of the facts, leave it in such custody as its welfare at the time
appears to require. In short, the child's welfare is the supreme consideration,
irrespective of the rights and wrongs of its contending parents, although the
natural rights of the parents are entitled to consideration.
An
application by a parent, through the medium of a
habeas
corpus proceeding, for custody of a child is
addressed
to the discretion of the court, and custody may be withheld from the parent
where it is made clearly to appear that by reason of unfitness for the trust or
of other sufficient causes the permanent interests of the child would be
sacrificed by a change of custody. In
determining
whether it will be for the best interest of a child to award its custody to the
father or mother, the Court may properly consult the child, if it has
sufficient judgment.
(emphasis
supplied)"
W.P(Crl.)
494/2010 Page 5 of 29 With respect to the principle of comity of Courts, the
Supreme Court in a
recent
decision in Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC
479, inter alia,
observed
and held as under:
"47........Welfare
of the minor in such cases being the paramount consideration; the court has to
approach the issue regarding the validity and enforcement of a foreign decree
or order carefully. Simply because a foreign court has taken a particular view
on any aspect concerning the welfare of the minor is not enough for the courts
in this country to shut out an independent consideration of the matter.
Objectivity and not abject surrender is the mantra in such cases. That does
not, however, mean that the order passed by a foreign court is not even a
factor to be kept in view. But it is one thing to consider the foreign judgment
to be conclusive and another to treat it as a factor or consideration that
would go into the making of a final decision......
58.
Proceedings in the nature of Habeas Corpus are
summary
in nature, where the legality of the detention of the alleged detente is
examined on the basis of affidavits placed by the parties. Even so, nothing
prevents the High Court from embarking upon a detailed enquiry in cases where
the welfare of a minor is in question, which is the paramount consideration for
the Court while exercising its parens patriae jurisdiction. A High Court may,
therefore,
invoke its extra ordinary jurisdiction to determine the validity of the
detention, in cases that fall within its jurisdiction and may also issue orders
as to custody of the minor depending upon how the court
views the
rival claims, if any, to such custody.
59. The
Court may also direct repatriation of the minor child for the country from
where he/she may have been removed by a parent or other person; as was directed
by this Court in Ravi Chandran's & Shilpa Aggarwal's cases
W.P(Crl.)
494/2010 Page 6 of 29 or refuse to do so as was the position in Sarita Sharma's
case. What is important is that so long as the alleged detenue is within the
jurisdiction of the High Court no question of its competence to pass
appropriate orders arises. The writ court's jurisdiction to make appropriate
orders regarding custody arises no sooner it is found that the alleged detenue
is within its territorial jurisdiction.
63.......
What needs to be examined is whether the High Court was right in relying upon
the principle of comity of courts and dismissing the application. Our answer is
in the negative. The reasons are not far to seek. The first and foremost of
them being that `comity of courts'
principle
ensures that foreign judgments and orders are unconditionally conclusive of the
matter in controversy. This is all the more so where the courts in this country
deal with matters concerning the interest and welfare of minors including their
custody. Interest and welfare of the minor being paramount, a competent court
in this country is entitled and indeed duty bound to examine the matter
independently, taking the foreign judgment, if any, only as an input for its
final adjudication. Decisions of this Court in Dhanwanti Joshi, and Sarita
Sharma's cases, clearly support that proposition."
5. In an
earlier decision, Sarita Sharma vs. Sushil Sharma (2000) 3
SCC 14,
the parties
were residing in USA along with their two minor children one aged
seven
years and the other aged three years. Proceedings for dissolution of marriage
were
initiated by the husband in a US court. In those proceedings, interim orders
were
passed from time to time with respect to the care and custody of the children
and
visitation right of the appellants. During the pendency of divorce proceedings,
the
petitioner-mother of the children took the children with her though in USA
W.P(Crl.)
494/2010 Page 7 of 29 itself. The Associate Judge passed an order for putting
children back in the care of
the
father and the mother was given only visitation right. On 7.5.1997, the mother
Smt.
Sarita picked up the children from the residence of the husband while
exercising
her visitation right. She was to bring the children back to the school next
day
morning, but she failed to do so. On the husband informing the police, a
warrant
of her arrest was issued. Smt. Sarita came to India with her children. On
12.6.1997,
a divorce decree was passed by the Associate Judge and the husband
was given
sole custody of the children. Sarita was denied even the visitation right.
The
husband Sushil Sharma then filed a writ petition in this Court. This Court
rejected
the contention of Sarita Sharma that the decree of divorce and order for
custody
of the children had been obtained by the husband by practising fraud on
the Court
and directed Sarita Sharma to restore the custody of the children to the
husband.
Their passports were also ordered to be handed over to him. Being
aggrieved
from the order passed by this Court, the wife Sarita approached the
Supreme
Court by way of a Special Leave Petition. It was contended by her that
when she
came to India with children, she was their natural guardian.
The
question which arose before the Court was whether the custody of the
children
had become illegal as Sarita committed a breach of the order of the
Marriage
Court directing her not to remove children from the jurisdiction of the
court
without its permission. Another question which came up before the Supreme
W.P(Crl.)
494/2010 Page 8 of 29 Court was as to whether her custody of the children
became illegal after decree of
divorce
and order passed by American Court giving custody of children to her
husband.
Allowing the appeal of the mother and setting aside the order passed by
this
Court, the Supreme Court, inter alia, held as under:
"6.
Therefore, it will not be proper to be guided entirely by the fact that the
appellant Sarita had removed the children from U.S.A. despite the order of the
Court of that country. So also, in view of the facts and
circumstances
of the case, the decree passed by the
American
Court though a relevant factor, cannot override the consideration of welfare of
the minor children. We have already stated earlier that in U.S.A. respondent
Sushil is staying along with his mother aged about 80 years. There is no one
else in the family. The respondent appears to be in the habit of taking
excessive alcohol. Though it is true that both the children have the
American
citizenship and there is a possibility that in U.S.A. they may be able to get
better education, it is doubtful if the respondent will be in a position to
take proper care of the children when they are so young. Out of them one is a
female child. She is aged about 5 years. Ordinarily, a female child should be
allowed to remain with the mother so that she can be properly looked after. It
is also not desirable that two children are separated from each other. If a
female child has to stay with the mother, it will be in the interest of both
the children that they both stay with the mother. Here in India also proper
care of the children is taken and they are at present studying in good schools.
We have not found the
appellant
wanting in taking proper care of the children. Both the children have a desire
to stay with the mother. At the same time it must be said that the son, who is
elder than daughter, has good feelings for his father also. Considering all the
aspects relating to the Welfare of the children, we are of the opinion that in
spite of the order
W.P(Crl.)
494/2010 Page 9 of 29 passed by the Court in U.S.A. it was not proper for the
High Court to have allowed the Habeas Corpus writ
petition
and directed the appellant to hand over custody of the children to the
respondent and permit him to take them away to U.S.A. What would be in the
interest of the children requires a full and thorough inquiry and,
therefore,
the High Court should have directed the
respondent
to initiate appropriate proceedings in which such an inquiry can be
held.........."
In
Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112, the appellant
who
was
living with the husband in USA for ten months after her marriage to him on
11.6.1982,
left the respondent on 20.4.1983 along with their child who at that time
was 35
days old. There was litigation between the parties, both civil and criminal,
in India
as well as in USA for 14 years. The husband continued to live in USA
while the
wife along with her son was living in India. The husband filed a divorce
case in
USA and also sought custody of the child. A divorce decree was passed ex
parte on
23.9.1983. On 20.2.1984, the appellant came to India along with the child.
The
respondent husband then obtained an order on 11.4.1984 whereby visitation
rights
were given to him. This was followed by another order whereby temporary
custody
was given to him. On 28.4.1986, the US Court passed an ex parte order
granting
permanent custody of the child to the respondent-husband. The appellant
filed a
petition in the Civil Court seeking declaration that her marriage with
respondent
was null and void, he being already married at that time. The
W.P(Crl.)
494/2010 Page 10 of 29 respondent came to India and filed a Habeas Corpus
petition seeking custody of the
child.
The writ petition was dismissed by the High Court. The husband, however,
was given
visitation rights. A petition under Section 13 of the Hindu Minority and
Guardianship
Act was filed by the appellant/mother, seeking permanent custody of
the
person and property of her son. The court appointed her the permanent and
lawful
guardian of the person and property of the child. The order of the trial court
was
upheld by the High Court. The matter was taken to Supreme Court, by the
husband.
The Supreme Court, while dismissing the appeal filed by the husband
observed
that he could have any other remedy open in law against the ex parte
decree.
The husband/respondent then filed a petition seeking custody of the child.
The
family court allowed the application filed by him and granted custody of the
child to
the respondent. The appeal filed by the mother/appellant against the order
of the
family court was dismissed for non-prosecution. An application filed by her
to set
aside the dismissal order, was also dismissed holding that she had no case, on
merit,
for retaining the custody of the child. One of the questions which fell for
consideration
before the Supreme Court in the appeal filed by the wife was as to
whether
her bringing the child to India contrary to the order of US Court, would
have any
bearing on the decision of the courts in India, while deciding about
custody
and welfare of the child. The Supreme Court held that it was the duty of
the
courts in the country to which a child is removed, to consider the question of
W.P(Crl.)
494/2010 Page 11 of 29 the custody having regard to the welfare of the child.
As observed by the Supreme
Court in
Ruchi Majoo (supra), in doing so, the order passed by the foreign court
would
yield to the welfare of the child and comity of Courts simply demands
consideration
of any such order issued by the foreign courts and not necessarily
their
enforcement.
6. It
would, thus, be seen that in the case of Sarita Sharma (supra), the
Supreme
Court allowed the wife to have custody of the child, giving primacy to the
welfare
of the child, despite the fact that she had removed the children from the
custody
of the husband, in violation of the order passed by the Associate Judge,
who had
put them in custody of her husband and further order of the US Court,
declaring
that the sole custody of the children shall be with the husband. In
Dhanwanti's
case (supra), also, Supreme Court allowed the wife to retain custody
of the
child despite the order of US court, giving permanent custody of the child to
the
husband. In both these cases welfare of the child was held to be the paramount
consideration
in such matters. The court was clearly of the view that the principle
of comity
of Courts and the orders passed by the foreign courts were only one of
the relevant
factors to be taken by the courts into consideration, the prime
consideration
in all such cases being as to whether the welfare of the child lies with
the
husband or the wife. In the case before this court, admittedly, there was no
order of
New Zealand court giving custody of the children to the petitioner alone or
W.P(Crl.)
494/2010 Page 12 of 29 to both, the husband and wife, at the time the children
came to India. The children
were not
brought to India at the back of their father or without his consent. The
entire
family came together to India. While leaving India, the petitioner agreed that
respondent
No.2 would join him later in New Zealand in the month of June along
with
children. Therefore, neither the children were brought to India in violation of
a
court's
order nor can it be said that respondent No.2 was illegally withholding the
children
with her when they came to India or when the petitioner left for New
Zealand.
7. It is
not in dispute that the relations between the petitioner and respondent
No.2 are
far from cordial. This became evident when respondent No.2 did not
return to
New Zealand along with the children in June 2009 despite their return
tickets
having already been booked. In her counter affidavit, respondent No.2 has
alleged
cruelty and harassment at the hands of the petitioner. Some of the instances
of
cruelty and harassment alleged in the counter affidavit are as under:
"13.04.2005
That on the 13th of April, 2005, the respondent called her mother to wish her
on her birthday. She
inquired
about her father and learnt that he was attending the Sat Sang. On haring this,
the petitioner got angry and started shouting at the respondent and also
slapped her despite the assurance of petitioner's parents.
Jan 2006
That in January, 2006 a friend of respondent was leaving for India and while
returning from the New
Zealand
airport after seeing her off, the petitioner started
W.P(Crl.)
494/2010 Page 13 of 29 shouting at the respondent for having talked about her
parents at the airport.
Oct 2007
That in October, 2007, respondent was expecting another baby and the petitioner
insisted her to call her mother to New Zealnad. The brother of respondent No.2
asked her about the visa procedure and for this too she was slapped by the
petitioner. The mother of respondent no.2 visited her in New Zealand on
3.1.2008 and on that date, her second daughter was born. During the stay of the
respondent mother, the father of the petitioner abused the mother of respondent
and blamed her that it was
because
of her, the respondent no.2 had a pre-mature baby and they had to spend money
on her medical
treatment.
11.03.2009
That on 11.3.2009, the parties came to Delhi and went to the house of the
petitioner where they stayed till 8.4.2009 when the petitioner left for New
Zealand.
During
this stay, the respondent and her minor children only once visited the house of
her parents.
10.4.2009
That on 10.4.2009, the respondent came to her parents house for few days in
May, 2009 her brother
came to
India from U.S.A. to find a suitable match for his marriage. The respondent's
brother found a match and on 6.6.2009 a Roka ceremony was held. At, 9 a.m., the
father of
the respondent invited at phone the family of the petitioner but the petitioner
had instructed not to attend the function. The ceremony was to be held at 11.30
a.m., followed by a lunch at 2.30 p.m. but with the intent to harass the
respondent, the petitioner sent respondent late so that ceremony could be held
at 1.30 p.m. and lunch at 5 p.m. the respondent was brought by her father in
law at 6 p.m.
08.06.2009
That on 8.6.2009, the father of the petitioner told the father of the
respondent to give a phone call to the petitioner thanking him for allowing the
respondent to
W.P(Crl.)
494/2010 Page 14 of 29 attend the function. But the petitioner abused him on
pone for an hour using filthy language.
09.06.2009
That on 9.6.2009, the uncle of respondent came to her in laws house to bring
her to Rajinder Nagar, New Delhi, as the respondent was suspposed to leave for
New Zealand on 10.6.2009, and after begging for four hours, the father of the
petitioner allowed the respondent to go but after getting in writing four pages
with her signatures and dates that is she is going on her own accord and she
was not allowed to take her kids, Ms. Jasmine Kaur and Ms. Vaani Kaur as was
instructed by the respondent. The purse of the respondent was also checked. She
was
allowed
to go at 4 p.m. without her daughters aged 5 years and 1½ years old. She
requested her father in law to give her kids as her younger daughter was on
breast feed but he abused her. At 11 p.m. respondent and her uncle went to the
house of the in-laws and the father in law started abusing them. He also gave a
jolt to the turban of the uncle of the respondent and also slapped him. The
shocked uncle came back quietly.
10.06.2009
That on 10.6.2009, the father in law of the respondent who had received
instructions from the
petitioner
started using rough and filthy language and forcibly put off the jewellery of
the respondent. At 1 p.m. the father of respondent having undergone so much
trauma
about these cruelties with the help of police freed respondent and her kids
from her father in law and
brought
her back home wearing apparels only. Since then she is living with her parents and
all her belongings are also kept by the in laws."
8. The
allegations made in the counter affidavit have been denied by the
petitioner
in the rejoinder affidavit filed by him. We cannot examine the
W.P(Crl.)
494/2010 Page 15 of 29 truthfulness or otherwise of all these allegations in
this petition under Article 226
of the
Constitution. We would, however, like to take note of certain facts which
have a
bearing on the issue of welfare of the minor children:
(a)
Criminal M.A. No. 83/2010 was filed by respondent No.2 alleging
therein
that the petitioner made a telephone call to her on 23.5.2010 and made
derogatory,
abusing, threatening and uncivilized remarks not only against her but
against
her parents and relatives as well. A cassette of the tape-recorded telephonic
conversation
was also annexed to the application. The learned counsel representing
the
petitioner on 04.06.2010, on instructions from the petitioner, categorically
denied
that the petitioners had made any such telephonic call on 23.5.2010 at 11
a.m. or
that he had used derogatory remarks against by respondent No.2 or her
parents
or relatives. Vide order dated 13.8.2010 we directed the petitioner to file an
affidavit
indicating as to whether the male voice in the recorded conversation was
his voice
or not. Another copy of the audio cassette was also handed over to his
counsel.
We also directed learned counsel for the petitioner to take instructions
from him
as to whether he was willing to come to India for giving his voice sample
so that
the same can be compared with male voice in the recorded cassette
submitted
by the respondent No.2. On 26.11.2010, we were informed that the
petitioner
was not willing to come to India for this purpose. The cassette was then
sent by
us to CFSL, CBI, New Delhi for the purpose of examining as to whether
W.P(Crl.)
494/2010 Page 16 of 29 the audio contained therein had been deterred/tampered
with or not by insertion or
deletion
of pieces of conversation which is recorded therein. We received a report
from
CFSL, opining that the recording in the cassette was continuous and no form
of
tampering to the recording had been detected. Therefore, it cannot be said that
the
cassette filed by respondent No.2 has been interpolated in any manner. As
regards
the male voice in the cassette, it was subsequently conceded by the learned
counsel
for the petitioner, during the course of arguments before us that the voice
was that
of the petitioner. Thus, we have an admission of the petitioner that the
voice in
the cassette is his voice and we also have a report from the CFSL opining
that
there has been no tampering with the said cassette. It is also evident from the
admission
made by the learned counsel for the petitioner before us, during the
course of
arguments, that the petitioner, through his counsel, had made a false
statement
before us on 04.06.2010 when he stated that he had not made any
derogatory
remarks against respondent No.2 or her parents or her relatives. Some
of the
extracts from the English translation of the Hindi conversation recorded in
the said
cassette read as under:
"Surjeet:-Where
Jasmine is gone.
Harpreet:-She
went to Gurudwara.
Surjeet:-You
bastard are sitting in the house, Bhen ki lori sent her to Gurudwara,
Haramjadi, Kutte ki bacchi I am trying on phone for two hours and not
attending, your entire family is sons of bastard, Kanjaro, Bhenchodo live
ashamed.
W.P(Crl.)
494/2010 Page 17 of 29 Harpreet:-Really you have no manners.
Surjeet:-Bhen
ki lodi, kutti, Bhenchod, Randi you have no manners.
Harpreet:-This
is manners, this is manners, this is manners. Surjeet:-You will teach me
manners, why you sit for fucking when your father shown manners and what
manners
shown by
your father, your uncle bhen ka loda, son of dog what manners he shown to you.
Harpreet:-good
on you, Good on you. You have got these manners. I say one year has completed
in one man.
Surjeet:-You
come to fuck your mother, your attraction has finished and you again coming for
fucking sister. You and your father are very bastards and he was not feeling
ashamed while disconnecting phone. And on next day
when I
made phone call he called police then he was not ashamed.
Harpreet:-Your
father not ashamed when took out my jewellery and not ashamed while naked her
daughter in law.
Surjeet:-Kutti
ki bacchi, Harm ki aulad, Benchod, your father was not ashamed.
Harpreet:-
Your parents are not ashamed when they gives filthy abusing.
Surjeet:-Call
your brother, Bhen ke lode in my front, Bhenchod has died.
Harpreet:-You,
You are a impossible person.
Surjeet:-Tere
maa ki chut, Bhenki lodi, callyour father I will talk with him, call that
Bhenchod if he is son of only a man. Call your brother and father so that I can
talk with them.
xx xx xx
xx xx xx xx xx xx
Surjeet:-Your
uncle Randwa, Behnchod says me that my wife has lost attraction for me and he
was putting penis for giving, you were sitting for fucking by your uncle.
Harpreet:-Be
ashamed, how can a person can tell all these for his wife and what compromise
will be made by him,
what is
your aim.
Surjeet:-Bhenki
Lodi, talk with me on phone today, come in front of me I fuck your mother.
W.P(Crl.)
494/2010 Page 18 of 29 Harpreet:-Very good, give more abusing except that what
you know and learnt and I was telling for long time what type of you and know
this person very well.
xx xx xx
xx xx xx xx xx xx
Surjeet:-He
will fuck his daughter after going in house.
xx xx xx
xx xx xx xx xx xx
Surjeet:-Your
father was bastard since first day and use to say I demand for dowry.
Harpreet:-Whether
you have married with me or my father. Tell me from whom you married.
Surjeet:-Haram
ki aulad, call your Benchod father.
xx xx xx
xx xx xx xx xx xx
Surjeet:-I
say that you are daughter of bastard and not daughter of your father and you
will be daughter of bastard if you not tell that you have to live with me after
marriage. You should come her along with children. Come here and
why are
escaping from situation and responsibility.
xx xx xx
xx xx xx xx xx xx
Harpreet:-I
have allowed my children to talk with you but how can allow a father who talks
with children by giving abusing.
Surjeet:-The
person will be son of dog who will sent his sister for fucking again and why
you not told before the court that you want to live with me and why told lie.
xx xx xx
xx xx xx xx xx xx
Surjeet:-Kutte
ki bacchi, haramjadi, Ullu ki pathi."
W.P(Crl.)
494/2010 Page 19 of 29 (b) The petitioner has been sending messages to respondent
No.2 and to
say the
least, the expressions used in some of these SMSs cannot be said to be
parliamentary
and do not behove of an educated person like him. One SMS sent by
the
petitioner to respondent No.2 reads as under:-
"Is
it your status'O' you mean character bastard father, you have given these bad
teachings to your daughter that she lost her attraction towards her husband
& you will search new husband for your daughter.
9. Having
considered the matter and heard the learned counsel for the parties at
considerable
length, we are of the opinion that for the reasons stated herein below,
it could
not be in the interest of the minor children, to sent them to New Zealand.
i) Both
the children are minor girls, one aged about seven years and the other
aged
about four years and hence both of them need constant company of their
mother.
If we direct the respondent No.2 to take the children to New Zealand and
live with
the petitioner, considering the behavior of the petitioner as is reflected in
the
tape-recorded conversation, it will not be safe for respondent No.2 to live
with
the
petitioner in New Zealand. The petitioner is likely to cause mental as well as
physical
cruelty to respondent No.2 if she lives with him. If the petitioner
misbehaves
with respondent No.2 in the presence of these minor girls, it is bound
to have a
damaging and ever-lasting negative impact on them and make them
constantly
worry about their safety and the safety and welfare of their mother. The
W.P(Crl.)
494/2010 Page 20 of 29 cruelty with respondent No.2 is likely to cause trauma
and distress not only to her,
but also
to her children.
ii) If we
give custody of the children to the petitioner, that would not be in the
interest
of these girls who need constant care, attention, devotion and love from
their
mother. Of course, it cannot be disputed that the children need the company of
the
father as well, but if a choice has to be made between the father and the
mother,
we are of
the firm view that in the facts and circumstances of the case, the welfare
of the
children lies in being with the mother rather than being with the father.
iii) As
far as the younger daughter Vaani's care is concerned, she being less than
five
years old, respondent No.2 continues to be her natural guardian in terms of
Hindu
Minority and Guardianship Act, 1956 and it would not be in the interest of
the
children to separate them from each other. Even the children would not like to
part with
the company of each other, even if it is at the cost of losing the company
of their
father.
iv) Both
the children are now in India for the last almost three years and are
receiving
education in Delhi. It will not be in their interest to discontinue their
studies
abruptly and join some school in New Zealand, since the education received
by them
in India is not likely to be recognized by the schools in New Zealand.
v)
Section 3(3) of Domestic Violence Act, 1995 (New Zealand) reads as
under:-
W.P(Crl.)
494/2010 Page 21 of 29 "3 Meaning of domestic violence:
(1) In
this Act, domestic violence , in relation to any person, means violence against
that person by any other person with whom that person is, or has been, in a
domestic
relationship.
(2) In
this section, violence means--
(a)
Physical abuse:
(b)
Sexual abuse:
(c)
Psychological abuse, including, but not limited
to,--
(i)
Intimidation:
(ii)
Harassment:
(iii)
Damage to property:
(iv)
Threats of physical abuse, sexual abuse,
or psy-
chological abuse:
(v) In
relation to a child, abuse of the kind
set out
in subsection (3) of this section.
(3)
Without limiting subsection (2)(c), a person
psychologically
abuses a child if that person--
(a)
causes or allows the child to see or hear the
physical,
sexual, or psychological abuse of a person with whom the child has a domestic
relationship; or
(b) puts
the child, or allows the child to be put, at real risk of seeing or hearing
that abuse occurring;-- but the person who suffers that abuse is not
regarded,
for the purposes of this subsection, as
having
caused or allowed the child to see or hear
the
abuse, or, as the case may be, as having put the child, or allowed the child to
be put, at risk of
seeing or
hearing the abuse."
Considering
the behavior of the petitioner as is reflected in the tape-recorded
conversation
referred hereinabove, if the petitioner physically or mentally abuses
respondent
No.2, which we feel he is likely to do considering his past behavior, and
W.P(Crl.)
494/2010 Page 22 of 29 such an act on the part of the petitioner is witnessed
by the children, this would
amount to
psychologically abusing the children under the laws of New Zealand and
it would
not be appropriate for us to pass an order which is likely to result in the
children
being psychologically abused by the petitioner.
vi) On
19.4.2012, we interacted with the children in our chambers in the
presence
of the learned counsel for the parties, to ascertain whether they wanted to
live in
India or to go to New Zealand. Both the children clearly stated that they
would
like to stay in India with their mother even if it is at the cost of being
deprived
of the company of their father. Both the children, therefore, have clearly
expressed
a disinclination to go to New Zealand to their father.
10.
Having given due regard to the order passed by the New Zealand Court
directing
the respondent No.2 to place both the children in its custody, we are of
the view
that the relief sought in this petition should not be granted since it will not
be in the
interest of the children to send them back to New Zealand. The welfare of
the minor
is the paramount consideration, even in a case involving principle of
comity of
courts.
11.
During the course of arguments, learned counsel for the petitioner placed
reliance
upon the decisions of the Supreme Court in V. Ravi Chandran v. Union of
India and
Ors (2010) 1 SCC 174 and Shilpa Aggarwal vs. Aviral Mittal (2010)
1
SCC 591.
In V. Ravi Chandran (supra), the Supreme Court was dealing with a
W.P(Crl.)
494/2010 Page 23 of 29 Habeas Corpus petition filed directly before it under
Article 32 of the Constitution.
In that
case, respondent No.6 before the Supreme Court had approached New York
State
Supreme Court, for divorce and dissolution of marriage. A consent order
governing
issue of custody and guardianship of minor child Adithya was passed by
the court
on 18.4.2005, granting joint custody of the child to the petitioner and
respondent
No.6. Both of them consented to the order giving joint custody of the
child to
them. The marriage between them was dissolved on 8.9.2005. The order
pertaining
to the custody of the child was incorporated in that order. With the
consent
of the parties, the order was passed by the family court of State of New
York on
18.6.2007, ordering that the parties shall share joint legal and physical
custody
of the minor child. Some other directions were also given in that order. On
28.6.07,
respondent No.6 brought the minor child to India informing the petitioner
that she
would be residing with her parents in Chennai. On 8.8.2007, the petitioner
filed a
petition before the family court of the State of New York, for modification
and
alleging violation of the custody order, by respondent no.6. The Court passed
an order
giving temporary sole custody of the child to the petitioner and respondent
no.6 was
directed to immediately return minor child and his passport to the
petitioner.
The family court of the State of New York also issued Child-abuse Non-
bailable
warrant against respondent No.6. It was in this backdrop that the Supreme
court,
directed respondent No.6 to take the child to United States of America as per
W.P(Crl.)
494/2010 Page 24 of 29 the consent order dated 18.6.2007 passed by the family
court of the State of New
York till
such time any further order was passed by that Court. Certain directions
with
respect to travelling expenses of respondent No.6 and the child as well as for
making
arrangements for residence of respondent No.6 in the USA were also given
by the
court. In the course of judgment, Supreme Court, inter alia, observed as
under:
"29.
While dealing with a case of custody of a child removed by a parent from one
country to another in contravention to the orders of the court where the
parties had set up their matrimonial home, the court in the country to which
child has been removed must first consider the question whether the court could
conduct an elaborate enquiry on the question of custody or by dealing with the
matter summarily order a parent to return custody of the child to the country
from which the child was removed and all aspects relating to child's welfare be
investigated in a court in his own country. Should the court take a view that
an elaborate enquiry is necessary, obviously the court is bound to consider the
welfare and happiness of the child as the paramount consideration and go into
all relevant aspects of welfare of child including stability and security,
loving and understanding care and guidance and full
development
of the child's character, personality and talents. While doing so, the order of
a foreign court as to his custody may be given due weight; the weight and
persuasive effect of a foreign judgment must depend on the circumstances of
each case."
The
Supreme Court took note of the fact that keeping in view the welfare
and
happiness of the child and in his best interests, the parties had obtained a
series
of
consent orders concerning his custody/parenting rights, maintenance etc from
W.P(Crl.)
494/2010 Page 25 of 29 the competent court of jurisdiction in USA. The court
also found that there was
nothing
on record which may even remotely suggest that it would be harmful to the
child to
be returned to USA. However, in the present case, the children have not
been
brought to India in violation of any order passed by a court at New Zealand.
The
children came to India with their parents and with the consent of both of them.
No order
with respect to the custody of the children was passed by the Court at
New
Zealand with the consent of the parties. In the case of V. Ravi Chandran
(supra),
there was nothing to even remotely suggest that it would be harmful to the
child to
be returned to USA. On the other hand, there is ample material before this
Court
which clearly suggests that it would be harmful not only for respondent No.2
but also
for the children if they are sent to New Zealand. The facts of this case are,
therefore,
clearly distinguishable from the facts in V. Ravi Chandran (supra).
In Shilpa
Aggarwal (supra), following some disagreement between the
parties,
the appellant before the Supreme Court came to India on 12.9.2008, but
returned
on 14.10.2008. The appellant was supposed to join him in his family at
New Delhi
at his arrival in to India but she chose not to do so. Both of them were
supposed
to leave for U.K. 9.11.2008, but, the appellant got their tickets cancelled
on
7.11.2008 and remained behind in India. The respondent husband thereupon
started
proceedings before the High Court of Justice, Family Division, U.K. on
25.11.2008,
for an order that the minor child be made ward of the court and for a
W.P(Crl.)
494/2010 Page 26 of 29 direction to the appellant to return the minor child to
the jurisdiction of the said
court. On
the application of the husband, the High Court of Justice, Family
Division,
U.K. vide order 26.11.2008 directed the appellant to return the minor
child to
the jurisdiction of the court. A further direction was given for the passport
and
travelling documents of the minor child to be handed over to the Solicitor of
respondent
No.1. This Court directed the appellant before the Supreme Court to
take the
child to England and join proceedings failing which the child was to be
handed
over to the husband to be taken of England as a measure of interim custody,
and
thereafter, it was for the courts of England and Wales to determine which
parent
would be best suited to have the custody of child. Finding no fault with the
order of
this Court, the appeal filed by the wife was dismissed by the Supreme
Court. It
would be pertinent to take note of the fact that in the case of Shilpa
Aggarwal
(supra), there was nothing before the court to even suggest that the
husband
was likely to cause physical or mental cruelty to his wife, and therefore, it
would be
in the interest of the child to send him back to U.K. On the other hand, in
the case
before this Court, the conduct of the petitioner as reflected in the tape-
recorded
conversation filed by respondent No.2 in the Court, clearly indicates that
it would
not be in the interest of the minor daughters of the parties to sent them to
New
Zealand, with or without respondent No.2 accompanying them. If these girls
are sent
to New Zealand, there is all likelihood of respondent No.2 being tortured
W.P(Crl.)
494/2010 Page 27 of 29 mentally and/or physically by the petitioner and such
torture being witnessed by
the
children which, in turn, is bound to have an adverse impact on them thereby
amounting
to their psychological abuse in terms of the laws applicable in New
Zealand.
12. For
the reasons stated hereinabove, we are of the view that it is not a fit case
for
exercising our extraordinary jurisdiction under Article 226 of the Constitution
by
directing respondent No.2 to either return to New Zealand along with children
or to
give custody of the children to the petitioner. It would, however, be open to
the
petitioner, if he so desires, to apply to the appropriate court in India seeking
custody
of the children.
However,
in order to ensure that the petitioner is not deprived of his
legitimate
right to be in the company of his children, whenever he visits India, we
direct
that he will be entitled to visit after advance intimation, the house where the
respondent
No.2 is residing at that time with the children and be in the company of
the
children for two hours during day time, on every Saturday, Sunday and school
holiday.
While visiting the house of respondent No.2 in India, the petitioner will be
alone and
will not misbehave with her or any member of her family in any manner
and will
conduct himself in a dignified and appropriate manner. If the petitioner
fails to
do so, it would be open to respondent No.2 to refuse entry to the petitioner
in her
house. If the petitioner while at the house of respondent No.2 in India,
W.P(Crl.)
494/2010 Page 28 of 29 conducts himself appropriately, he will be entitled to a
peaceful company of his
children
uninterrupted by respondent No.2 or any member of her family in terms of
this
order.
The writ
petition stands disposed of accordingly. In the facts and
circumstances
of the case, there shall be no order as to costs.
V.K.JAIN,
J
BADAR
DURREZ AHMED, J
