Mr. 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.

2. 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, 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.

3. 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 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.

4. 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.

5. 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).

6. Learned counsel for respondent Nos.3 and 4 has submitted that his clients have