IMPORTANT POINT
Custody of child – Welfare of child should prevail over other factors.

JUDGMENT :

J.K. MAHESHWARI, J.

Criminal Appeal No. _______ of 2025 (@ SLP (Crl) No. 9497 of 2021)

1. Leave granted.

2. In an ongoing prolonged discord of ties between husband – Sandeep Kumar @ Sandeep Chugh (hereinafter referred as ‘father’) and wife – Latika Arora @ Latika Chugh (hereinafter referred as ‘mother’) who got married on 29.11.2010, leading to further dispute on visitation over their two children, minor daughter ‘Miss N’ (currently staying with mother in England and Wales) and minor son ‘Master K’ (currently staying with grandfather – appellant No.1), the writ petition seeking writ in the nature of habeas corpus came to be filed by father on an unhealthy note before the High Court of Punjab and Haryana at Chandigarh alleging illegal custody of children with appellants.

3. The case of the father in brief is that, the mother left India for United Kingdom on 08.05.2021 with both the children without informing him and his consent. The father being clueless about the whereabouts of his children, made an attempt to figure out the same through child helpline. Through correspondence and enquiry dated 01.06.2021, the child helpline informed that his children are not in India. It was further informed that as per his children and statement of wife, they are safe, secure and the wife is doing job over there. The said information was furnished by the child helpline indicating that the case is already pending in the Court.

Followed thereafter, the father on 03.06.2021 lodged a formal complaint before the Police to know the exact whereabouts of his children.

4. Meanwhile, the mother filed an application for non- molestation and occupation order against father in UK on 07.06.2021. The father also filed a divorce petition on 05.07.2021 in Noida and simultaneously, moved an application invoking inherent jurisdiction of the UK High Court of Justice, Family Division (in short “UK High Court”), in relation to children, contending that the mother wrongly removed the children from India without his knowledge and consent. It was also asserted that the children are habitual residents of India and accordingly, the father sought their summary return to India with a further prayer to make children ward of the Court meanwhile. He further sought range of prohibitory step orders, including location of the children and passport.

5. The above petition came for hearing without notice on 13.07.2021 before Mrs. Justice Judd, who passed a location order against the mother. In compliance, the Tipstaff located mother and Miss N and later their passport and travel documents were seized. The mother was served with the notice of proceedings on 15.07.2021. The next hearing took place on 26.07.2021 before Mrs. Justice Arbuthnot, who inter-alia passed the following directions –

(a) Mother is prevented from changing the location of the children without informing the father’s solicitor 7 days in advance and from taking the children outside the jurisdiction of England and Wales pending the conclusion of proceedings;

(b) Mother to make available the children to spend time with the Father by way of video and/or telephone calls every Monday, Wednesday and Friday at 18:00 GMT;

(c) Mother is prohibited from applying for a British passport or any other passport for the children pending the conclusion of the proceedings, without the consent of the Father.

6. Following the directives, the father made video calls at 18:00 GMT on Monday, Wednesday and Friday, however, as claimed by father, Master K was either asleep or unavailable most of the times for flimsy reasons stated by the mother. All the calls of Master K were always muted and his video background was also always hidden. As further contended, the call was portrayed to be originated from UK, however, the same was from India and in a collusive manner, the mother with the assistance of her parents, deliberately kept father away from Master K and avoided all sorts of communication with him. She also did not disclose to him abo