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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ANUPINDER SINGH GREWAL, J.
Mandeep Kaur - Petitioner
Versus
State of Punjab and others – Respondent
CRWP No.8319 of 2020
Decided On : 10-05-2021
Habeas Corpus - Custody of Minor Child - Hindus Minority and Guardianship Act, 1956 - Section 6 - Summary: The court considered the custody of a minor child and referred to Section 6 of the Hindus Minority and Guardianship Act, 1956, which provides that the custody of a child under 5 years would be with the mother. The court emphasized the importance of the mother's love, care, and guidance for the child's development and welfare. It also highlighted the principle of comity of courts and the relevance of foreign court orders in determining custody. The court ultimately granted custody to the petitioner-mother based on the child's best interest and welfare.
Fact of the Case:
The petitioner sought habeas corpus for the release of her minor daughter from the custody of respondent No.4. The parties had marital differences, and the child was taken away by respondent No.4. The petitioner, a permanent resident of Australia, filed for custody in the Federal Circuit Court, Australia, which issued an interim order for the child's return.
Finding of the Court:
The court found that the mother, being the natural guardian of the child under 5 years, was seeking custody in the child's best interest. It considered the mother's financial stability, permanent residency in Australia, and the support available for the child's maintenance. The court also emphasized the importance of the mother's role in the child's upbringing and development.
Issues: The issues involved the custody of the minor child, the relevance of foreign court orders, and the best interest of the child. The court addressed the maintainability of the petition and the disputed facts raised by respondent No.4.
Ratio Decidendi: The court relied on Section 6 of the Hindus Minority and Guardianship Act, 1956, and previous judgments emphasizing the mother's role in the child's welfare. It also considered the principle of comity of courts and the relevance of foreign court orders in determining custody.
Final Decision: The court granted custody of the child to the petitioner-mother, emphasizing the child's best interest and welfare. It outlined arrangements for the petitioner's interaction with the child and directed compliance with orders from the Federal/Family Court in Australia.
JUDGMENT :
ANUPINDER SINGH GREWAL, J.
1. The petitioner has sought issuance of a writ in the nature of habeas corpus for the release of her minor daughter who is alleged to be in the custody of respondent No.4 and to handover the custody to her.
2. It is stated in the petition that the marriage of the petitioner and respondent No.4 was solemnized on 20.11.2013. The respondent No.4 was an Australian citizen and the petitioner later joined him in Australia.
3. Out of the wedlock, a girl child Jasreen Kaur Garcha was born on 27.06.2017. The petitioner and respondent No.4 developed matrimonial differences which led to their separation. The petitioner is stated to have filed a petition for divorce on 14.10.2019 in the Federal Circuit Court wherein respondent No.4 is alleged to have been served. However, before the divorce could be finalized, respondent No.4 promised that he will improve his behavior in future and thus, they, started living together. The petitioner withdrew the divorce proceedings on 09.12.2019. The parties while they were living together arrived in India on 24.01.2020. The respondent No.4 kept the passport of the child and in a deep rooted conspiracy, the child was taken away by respondent No.4 on 02.02.2020 when the petitioner had gone to her parental village Naulakha, District Fatehgarh Sahib. It is stated in the petition that respondent No.4 instead of acceding to the request of the petitioner to handover the child, started threatening her and the petitioner fearing her safety, fled back to Australia on 05.02.2020. She filed a petition for the custody of the minor child in the Federal Circuit Court, Australia and the court passed an interim order on 01.04.2020 (Annexure P-3) directing the respondent No.4 to return the minor child to Australia. It is also stated that the Family Court of Australia issued warrant of arrest against respondent No.4 on 13.10.2020 (Annexure P-9).
4. Learned counsel for the petitioner submitted that the child is, at present, 4 ½ year of age and the mother is the natural guardian of the child. He referred to Section 6 of the Hindus Minority and Guardianship Act, 1956, wherein the custody of a child under 5 years would be with the mother. The mother has a permanent residency in Australia. She is getting a salary of 70,000/- Australian dollars per annum. She has bought a double storey house in Melbourne for 6,00,000/- Australian dollars. It is also stated that she has studied Bachelor degree of Physiotherapy and, therefore, is having a sound economic status for the proper upbringing of the child. The Australian government, as a measure of social security, provides 1100/- Australian dollars per month for the upkeep of a child. He also submitted that respondent No.4 is an Australian citizen and was well settled in Australia as he had even obtained a diploma in Hospitality management in Australia but he is unemployed in India. Being a small landowner, he does not have the financial status for the proper8 maintenance of the child. He further submitted that the federal court passed an interim order, directing the respondent No.4 to bring the child to Australia. The principle of comity of court entails that as a foreign court had passed an order, this Court should direct respondent No.4 to handover the custody of the minor child to the petitioner. He further contended that in response to the preliminary objection raised by the counsel for the respondent No.4 about the maintainability of the petition, it has been held by the Supreme Court of India in the case of Yashita Sahu vs. State of Rajasthan, AIR 2020 (SC) 577 that a petition for writ of habeas corpus for the custody of the child would be maintainable. In support of his submissions, he has also cited judgment of the Supreme Court in the case of Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw and another, reported as 1987(1) SCC 42 and judgments of this Court in the case of Amita Chhabra vs. State of Haryana and others, 2015 (1) RCR (Civil) 43, Gip
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