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2020 Supreme(P&H) 1777
IN THE HIGH COURT OF PUNJAB AND HARYANA
Arun Kumar Tyagi, J.
Sonia Dhawan - Appellant
Versus
State Of Haryana And Others - Respondent
CRWP No. 1057-2019
Decided On : 19-06-2020
Mr. Sukhvinder Singh Nara, Advocate, for the Appellant; Mr. Apoorv Garg, DAG, Haryana, for the Respondent No. 1-State., Mr. P.S. Jammu, Advocate, for the Respondents No. 2 to 5
Headnote:
The petitioner, an Australian citizen, and the respondent, an Indian citizen, were married in India in 2009. They had a son, Aarvi Ranga, in 2011. The petitioner and the respondent separated in 2019, and the petitioner returned to Australia with Aarvi Ranga. The respondent filed a petition in the High Court of Punjab and Haryana, seeking custody of Aarvi Ranga. The petitioner filed a petition in the Supreme Court of India, seeking a writ of habeas corpus directing the respondent to return Aarvi Ranga to Australia. The Supreme Court held that the High Court had jurisdiction to hear the respondent's petition, as Aarvi Ranga was ordinarily resident in India. However, the Court held that the High Court should have directed the parties to approach the Family Court for a detailed enquiry into the welfare of the child, rather than deciding the case on the basis of affidavits. The Court also held that the petitioner was entitled to visitation and contact rights with Aarvi Ranga. The Court dismissed the petitioner's petition and directed her to approach the Family Court for a determination of the custody issue. The Court also directed the respondent to allow the petitioner to talk to Aarvi Ranga through video calling facilities on a regular basis.
Fact of the Case:
The petitioner, an Australian citizen, and the respondent, an Indian citizen, were married in India in 2009. They had a son, Aarvi Ranga, in 2011. The petitioner and the respondent separated in 2019, and the petitioner returned to Australia with Aarvi Ranga. The respondent filed a petition in the High Court of Punjab and Haryana, seeking custody of Aarvi Ranga. The petitioner filed a petition in the Supreme Court of India, seeking a writ of habeas corpus directing the respondent to return Aarvi Ranga to Australia.
Finding of the Court:
The Supreme Court held that the High Court had jurisdiction to hear the respondent's petition, as Aarvi Ranga was ordinarily resident in India. However, the Court held that the High Court should have directed the parties to approach the Family Court for a detailed enquiry into the welfare of the child, rather than deciding the case on the basis of affidavits. The Court also held that the petitioner was entitled to visitation and contact rights with Aarvi Ranga.
Issues: 1. Whether the High Court had jurisdiction to hear the respondent's petition. 2. Whether the High Court should have directed the parties to approach the Family Court for a detailed enquiry into the welfare of the child. 3. Whether the petitioner was entitled to visitation and contact rights with Aarvi Ranga.
Ratio Decidendi: 1. The High Court had jurisdiction to hear the respondent's petition, as Aarvi Ranga was ordinarily resident in India. 2. The High Court should have directed the parties to approach the Family Court for a detailed enquiry into the welfare of the child, rather than deciding the case on the basis of affidavits. 3. The petitioner was entitled to visitation and contact rights with Aarvi Ranga.
Final Decision: The Supreme Court dismissed the petitioner's petition and directed her to approach the Family Court for a determination of the custody issue. The Court also directed the respondent to allow the petitioner to talk to Aarvi Ranga through video calling facilities on a regular basis.
JUDGMENT
Arun Kumar Tyagi, J. - The petitioner has filed the present petition under Article 226/227 of the Constitution of India through her brother and special power of attorney Rajnish Dhawan, for issuance of a writ in the nature of Habeas Corpus directing respondent No.l for effecting the release of detenue Aarvi Ranga minor son of the petitioner from illegal custody of respondents No. 2 to 5.
2. Briefly stated, the petition has been filed on the averments that marriage of the petitioner was solemnized with respondent No. 2 on 04.12.2009 at Panchkula as per Hindu rites and ceremonies. At the time of marriage respondent No. 2 was residing in Australia. The petitioner joined respondent No. 2 in Australia on 13.07.2010 and a son named Aarvi Ranga was born out of the wedlock on 12.03.2011. The petitioner was subjected to cruelty by respondent No.2 in connection with demand of dowry. On 11.09.2019 the petitioner and minor son Aarvi Ranga had to travel with respondent No. 2 to India under his pressure. When they reached Kurukshetra, respondent No. 2 threatened the petitioner and forcibly took the custody of minor son Aarvi Ranga with the help of other respondents. The petitioner apprehended danger to her life and went back to Australia on the next day. After two days respondent No. 2 also reached Australia abandoning the minor son Aarvi Ranga in India. Respondent No. 2 also got the school leaving letter of minor son Aarvi Ranga from the school in Australia on 16.09.2019. Respondent No. 2 visited the house where the petitioner and respondent No.2 were living together and took his clothes, articles and documents and shifted to some unknown place in Australia. The petitioner tried to contact respondent No. 2 through whatsapp, facebook and common friends but to no avail. The petitioner contacted respondents No. 3 to 5 and asked them about her son who initially agreed to send her son to Australia but subsequently refused. Respondents No.3 to 5 threatened the petitioner and did not allow her to speak to her son despite repeated phone calls, whatsapp and facebook messages. The petitioner approached many lawyers in Australia who advised her to approach courts in India. The petitioner had apprehension of danger to her life in India and requested her brother to lodge complaint in the police station. Her brother made complaint dated 01.11.2019 to the Superintendent of Police, Kurukshetra. The detenue Aarvi Ranga is in illegal custody of respondents No. 3 to 5. The petitioner is a permanent resident of Australia currently employed in Australia and wants to keep her son with her in Australia. The son of the petitioner has been kept in India against its will and her consent which violates their right to life and personal liberty as guaranteed under Article 21 of the Constitution of India. Her son detenue-Aarvi Ranga was born in Australia, spent his childhood there, has Australian friends and likes to study and live in Australia. He was getting education in Australia which was better as compared to India and he can do many more things in Australia only. He never lived in India and has no social circle here. Respondent No. 2 did not care for the ordinary comfort, contentment, health, education, intellectual development and favourable surroundings of the child in Australia and abandoned him in India. The actions of the respondents No.2 to 5 are violative of the provisions of the Human Rights Act, 1993, the Juvenile Justice (Care and Protection of Children) Act, 2015 and the International Conventions and Covenants such as 'Universal Declaration of Human Rights', 'UN Declaration of the Rights of the Child' and 'UN Convention of the Rights of the Child' to which India is signatory. The petitioner is of the view that let the petitioner and respondent No. 2 have joint custody of their son, get him back to Australia and get the matter decided in Australian Court. It would be in the best interest of minor Aarvi Ranga to repatriate him to Australia. The p
