Rashneet Kaur vs State Of Haryana - 2022 Supreme(P&H) 290

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(P&H) 290

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Jasjit Singh Bedi, J.
Rashneet Kaur – Appellant
Versus
State Of Haryana & Ors. – Respondents
CRWP-3251-2022
Decided On : 13-06-2022

Advocates Appeared:
Mr. Himanshu Sharma, Advocate, for the Appellant; Mr. Parveen Kumar Aggarwal, Deputy Advocate General, Haryana., Mr. Kanwaljeet Singh, Advocate for respondent nos.7 & 8, for the Respondent

Headnote:
The court held that the welfare of the child is the paramount consideration in child custody matters and that the mother is entitled to the custody of a child who is less than five years old, unless the father can show cogent reasons that the child's welfare would be jeopardized by entrusting custody to the mother. The court also held that the writ of habeas corpus is maintainable to ensure the safety, security, welfare, and happiness of a minor child and that the court can exercise its jurisdiction to issue a writ of habeas corpus when the custody of the child has been taken away by one of the natural guardians by playing a fraud upon the another.
Fact of the Case:

The petitioner, a mother, filed a petition for a writ of habeas corpus seeking the custody of her minor daughter, who had been taken away by the father and grandparents. The petitioner and the father were both Indian citizens, but the petitioner was a permanent resident of Australia and the father was a resident of India. The child was born in Australia and had been living there with the petitioner and the father until the petitioner came to India to visit her family. During her visit, the father took the child to India without the petitioner's consent. The petitioner filed a petition for habeas corpus in the High Court of Punjab and Haryana, seeking the return of the child.
Finding of the Court:

The court held that the welfare of the child was the paramount consideration in child custody matters and that the mother was entitled to the custody of a child who is less than five years old, unless the father can show cogent reasons that the child's welfare would be jeopardized by entrusting custody to the mother. The court also held that the writ of habeas corpus is maintainable to ensure the safety, security, welfare, and happiness of a minor child and that the court can exercise its jurisdiction to issue a writ of habeas corpus when the custody of the child has been taken away by one of the natural guardians by playing a fraud upon the another.
Issues: 1. Whether the writ of habeas corpus is maintainable in a case where the custody of a child has been taken away by one of the natural guardians without the consent of the other natural guardian. 2. Whether the mother is entitled to the custody of a child who is less than five years old, unless the father can show cogent reasons that the child's welfare would be jeopardized by entrusting custody to the mother.
Ratio Decidendi: The court held that the welfare of the child is the paramount consideration in child custody matters and that the mother is entitled to the custody of a child who is less than five years old, unless the father can show cogent reasons that the child's welfare would be jeopardized by entrusting custody to the mother. The court also held that the writ of habeas corpus is maintainable to ensure the safety, security, welfare, and happiness of a minor child and that the court can exercise its jurisdiction to issue a writ of habeas corpus when the custody of the child has been taken away by one of the natural guardians by playing a fraud upon the another.
Final Decision: The court allowed the petition and directed the father and grandparents to hand over the custody of the child to the mother immediately.

JUDGMENT

Jasjit Singh Bedi, J. - The present criminal writ petition under Article 226 of the Constitution of India has been filed for the issuance of a Writ in the nature of Habeas Corpus directing the respondents to produce the minor girl child of the petitioner i.e. Avneet Turka (aged 4-1/2 years) daughter of Sh. Avikash Turka resident of H.No.174, Sector D, Defence Colony, Ambala Cantonment and handover the custody of the minor child to the petitioner, who is the mother and natural guardian of the child.

2. The brief facts as emanating from the petition are that the petitioner who was born in Shahbad, District Kurukshetra got married to Avikash Turka son of respondent nos.7 & 8, resident of 174, Sector D, Defence Colony, Ambala Cantonment on 15.12.20213 at Gambhir Farms, Shahbad, District Kurukshetra. Immediately after the marriage the petitioner and Avikash Turka immigrated to Australia and after three years of the wedlock a female child i.e. Avneet Turka was born on 01.08.2017 at Mater Hospital, South Brisbane, Queensland, Australia. The details of the passport of the minor child are attached as Annexure P-3. Meanwhile, the petitioner qualified as a nurse with a Bachelor Degree in Nursing from Griffith University, Brisbane, Queensland, Australia and has been working at RSL Remembrance Village, Mount Austin, New South Wales, Australia drawing an annual salary of Australian Dollar 67,000/-.

3. Though there was marital discord between the couple from time to time, however, the petitioner who was residing in Australia along with her husband travelled to India to meet her family and relatives between 29.04.2019 to 13.05.2019. Her parents-in-laws i.e. Respondent nos.7 & 8 would also travel to Australia for visiting the petitioner, her husband and their child Avneet Turka.

4. As per the petitioner, on 23.01.2020 her in-laws brought the minor child Avneet Turka along with them to India and petitioner was to visit India soon thereafter. However, due to the outbreak of COVID-19 in 2020 followed by the unforeseen and unavoidable circumstances of overseas travel restrictions and suspension of international flights the petitioner got stranded in Australia and could not visit India in 2020 and 2021. Thereafter the petitioner came to India on 21.03.2022 to visit family and relatives after a gap of 02 years and went to the matrimonial home situated at # 174, Sector D, Defence Colony, Ambala Cantonment. The petitioner resided there for about a week and suffered domestic violence and maltreatment at the hands of her in-laws respondent nos.7 & 8. Due to the same, the petitioner decided to visit her parental home situated at Shahbad, District Kurukshetra and after packing their bags and dressing up her daughter Avneet Turka to visit her parental home, the respondent nos.7 & 8 did not allow the petitioner to take along her daughter with her.

5. Due to the aforementioned incident and domestic violence, the petitioner approached Police Station Panjokhra, and filed a complaint dated 28.03.2022 (Annexure P-1) against respondent nos.7 & 8 seeking the release of her minor daughter from the forcible custody of respondent nos.7 & 8 and to hand over the custody to her. On 30.03.2022 the respondent nos.7 alone appeared before the police at Police Station Panjokhra and did not produce the minor child. The police again called respondent nos.7 & 8 and the petitioner at P.S. Panjokhra on 6.4.2022 and directed them to produce the minor child. However, while the respondents nos.7 & 8 did appear on 6.4.2022 but they did not produce the minor child and kept the matter pending on one pretext or the other.

6. The petitioner thereafter visited the matrimonial home again. However, the said house was locked and on an inquiry the neighbour informed her that the respondents nos.7 & 8 had left the house and their current location was not known. Thus it was apparent that the intention of the respondent nos.7 & 8 was to harass the petitioner and keep her away from her minor