The welfare of the minor is the paramount consideration in custody disputes, and the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case.

V.K. Jain, J.

1. 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 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 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 brought to India, respondent No. 2 being their mother, was lawfully entitled to their custody.