The welfare of the child and the child's desire are paramount in custody disputes, and foreign judgments may not be conclusive if they conflict with Indian law and public policy.

JUDGMENT

Jasgurpreet Singh Puri, J. (Oral) - The present is a petition filed under Article 226 of the Constitution of India which is primarily in the nature of a Habeas Corpus seeking release of alleged detenue namely Jasnaaz Kaur who is the daughter of the petitioner and respondent No.5 from the custody of respondent Nos. 6 and 7.

2. The facts which have arisen for filing of the present petition are summarized as follows:-

The petitioner namely Sukhjinder Singh got married with respondent No.5 namely Avneet Kaur on 29.11.2015 at Ludhiana which was an arranged marriage. The couple was blessed with a girl child on 15.07.2017 at Ludhiana. After the marriage, the couple resided at Ludhiana, Faridkot and some other places in Punjab since respondent No.5 was working as a Probationary Officer in a bank. Thereafter, the petitioner and respondent No.5 decided to move to Canada on the basis of Family Permanent Residency System and in this way, the petitioner, respondent No.5 and the girl child went to Canada on P.R basis on 24.04.2018. At that time, minor girl was even less than 1 year. In Canada the family stayed with one of the relatives of the petitioner from 28.04.2018 to 25.06.2018. However, a matrimonial discord arose between the petitioner and respondent No.5 and there were allegations of beatings by the petitioner towards respondent No.5 and consequently, the respondent No.5 called the police in Canada and respondent No.5 alongwith child were taken to protection home where they stayed for two months.

3. Thereafter, respondent No.5 who is the mother of the girl child filed custody proceedings before the Courts at Ontario in Canada and vide Annexure P-2 an order was passed on 14.03.2019 by giving various directions. One of the directions was that respondent No.5 shall deliver the girl child to the parents of the petitioner in India on 18.03.2019. In case she fails comply with the aforesaid directions, then immediately she shall return the child to Brantford, Ontario, Canada and deliver the child into the care of the petitioner. Various other directions were also issued pertaining to costs etc. in this regard.

4. However, prior to the passing of the aforesaid order which was passed on 14.03.2019, respondent No.5 alongwith minor child came back to India on 13.01.2019 and they started living at Ludhiana at the parental house of respondent No.5. After some time the child was admitted in Oquid Pre School, Ludhiana and thereafter, she has now been admitted in DAV Public School, Ludhiana and is now in Class UKG. At present the age of the girl child is about 5 years.

5. Both the petitioner and respondent No.5 are citizens of India as of today as per the learned counsel for the parties and they are holding Indian Passports. The same is the position with the girl child. However, the petitioner has been staying in Canada on P.R basis and as per the learned counsel for the petitioner as of now he has not been conferred with citizenship of Canada.

6. On 28.02.2020 respondent No.5 went to Australia for pursuing her Master course in Mathematics which was of about 2 years and learned counsel for respondent No.5 has stated that the aforesaid course is now going to be completed within a period of 2 months and thereafter, she will be coming back to India and will reside in India. He further submitted that respondent No.5 is Masters in Professional Accounting, BBA and MBA and during the course of arguments, the learned counsel for respondent No.5 has stated that he has sought specific instructions that respondent No.5 has got a job offer from one international company by which she has an option for working online from India itself through video conferencing and learned counsel also specifically stated that he has instructions to say that respondent No.5 has decided to come back after completion of course in 2 months and to reside in India as per job requirement.

7. Learned counsel for the petitioner submitted that the petitioner is the father of the girl ch