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IN THE HIGH COURT OF PUNJAB AND HARYANA
Surya Kant, R.P. Nagrath, JJ.
Preet Ranjan Kaur - Appellant
Vs.
Harjit Singh & Another - Respondents
Amended Criminal WP No. 978 of 2012
Decided On : 16-11-2012
HABEAS CORPUS - Child Custody - Protection of Women from Domestic Violence Act, 2005, Hindu Minority and Guardianship Act, 1956, Guardian and Wards Act - The court discussed the principles of law applicable to child custody cases, emphasizing the paramount consideration of the welfare of the minor child. The court also highlighted the importance of the child's ordinary contentment, health, education, intellectual development, and favorable surroundings, as well as the moral and ethical welfare of the child. The judgment emphasized that the welfare and interest of the child, not the rights of the parents, are the determining factors for deciding the question of custody.
Fact of the Case:
The petitioner, a wife, sought a writ in the nature of 'habeas corpus' for the custody of her minor daughter. The respondent, her husband, had taken the child from her and refused to return her, linking the child's return to the petitioner's agreement for a divorce. The petitioner alleged that the child's health was deteriorating in the respondent's custody.
Finding of the Court:
The court found that the respondent had taken the child from the petitioner's father's house and refused to return her, linking her return to the petitioner's agreement for a divorce. The court also found that the child's health was deteriorating in the respondent's custody. The court held that the custody of the child should be restored to the mother as an interim measure, emphasizing the paramount consideration of the welfare of the minor child.
Issues: The issues included the custody of the minor child, the welfare of the child, and the legal rights of the parents.
Ratio Decidendi: The court emphasized the paramount consideration of the welfare of the minor child in child custody cases, highlighting the importance of the child's ordinary contentment, health, education, intellectual development, and favorable surroundings, as well as the moral and ethical welfare of the child. The court also emphasized that the welfare and interest of the child, not the rights of the parents, are the determining factors for deciding the question of custody.
Final Decision: The petition was allowed, and the respondent was directed to hand over the custody of the child to the petitioner. The court also outlined visitation rights for the respondent as an interim measure, pending a decision by the Guardian/Competent Court on a petition that the respondent-husband may choose to file.
R.P. Nagrath, J.
Prayer in this petition is made by the wife, seeking writ in the nature of 'habeas corpus' for a direction to respondent No. 1 (her husband) to produce the minor daughter Iknoor Kaur, who was about 5 1/2 years old at the time of filing this petition. Marriage between the parties was solemnized on 7.5.2005 and the couple stayed together as husband and wife in Sector 45, Chandigarh. Iknoor Kaur was born to the petitioner out of the wedlock on 22.10.2006. The petitioner was allegedly turned out of matrimonial home on 6.12.2008 along with the minor child. She then filed a petition under the Protection of Women from Domestic Violence Act, 2005 (for short 'the Act of 2005'). However, on persuasion of the Lok Adalat the petition under the Act of 2005 was withdrawn on 19.12.2009. Thereafter, they filed petition for divorce by mutual consent, based on a written compromise dated 24.9.2010 (Annexure R-1) but keeping in view the future of the child and the hostile attitude of the respondent, the petitioner withdrew her consent on the second motion and divorce petition was dismissed on 16.5.2011. It may be noted here that the respondent filed FAO No. 116-M of 2012 against that judgment after delay of 206 days, but that FAO has since been withdrawn on 1.11.2012.
2. The facts leading to the filing of this petition briefly are, that the respondent came to the house of the petitioner's father on 13.9.2011 at about 1.30 p.m. and forcibly snatched the child from the lap of the petitioner. The child started crying. While going the respondent remarked that he would return the child by evening but did not do so. He started sending messages that the child would be returned safe only if the petitioner agrees for a divorce. Iknoor Kaur was studying in K.G. Class of Sherwood Convent School, Sector 59, Phase IV, SAS Nagar, Mohali but it was learnt that the child had been shifted to DAV Public Senior Secondary School, Phase X, Mohali. It is contended that health of the child is in a bad shape. Despite gaining height from 110 cms to 114 cms, the child has reduced weight from 17.5 kgs. to 15.6 kgs. within a span of 5 months as appears from the record of health check up, produced by the respondent.
3. The petitioner also relies upon a document dated 17.12,2009 prepared by the respondent in his own handwriting, admitting his misdemeanours committed against the petitioner.
4. Regarding welfare of the child, it is stated that the respondent does not live with his parents and there is no female member to look after the child, who has been kept virtually in solitary confinement. The condition under which the child is living is not conducive for her mental development.
5. The respondent has opposed this petition. It is admitted that the respondent did write a document dated 17.12.2009 in the nature of apology but that was under pressure exerted by the petitioner's family members in lieu of the respondent's desire and demand to meet his daughter Iknoor Kaur.
6. The respondent claims that the petitioner in a most inhumane and atrocious manner abandoned the girl child in a park of Phase IV, Mohali on 13.9.2011 at about 7.00 p.m. The respondent received telephonic information from mother of the petitioner that the girl has been left in the park. The respondent went there, picked up his daughter and brought her home. Fearing some conspiracy in this episode, the respondent reported the entire matter to Senior Superintendent of Police, Chandigarh on 14.9.2011 at 3.54 p.m. vide application Annexure R-2. The petitioner had also poisoned the adolescent mind of the child against her own father. She has always used the child as a tool to blackmail the respondent. The respondent is also getting periodic vaccination and routine health check up of the child for which the prescription of the doctor are Annexure R-6 (Colly). After enormous endeavour, the respondent has been able to get the child out of the poison and the distressful state of mind which was de
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