Crl. W.P. No. 356 of 2018 (OM) (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. W.P. No. 356 of 2018 (OM)
DATE OF DECISION: 9.7.2018
Amarjeet Kaur Takhar ……….Petitioner
Versus
State of Punjab and others ……….Respondents
BEFORE:- HON’BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. K.S. Dadwal, Advocate
for the petitioner.
Mr. Hittan Nehra, Addl. A.G., Punjab.
Mr. Kanwaljit Singh, Senior Advocate with
Mr. Sanjeev Duggal, Advocate
for respondents No. 7 to 9.
****
DAYA CHAUDHARY, J.
CRM-W-86 of 2018
This application has been filed for placing on record Annexures
R-6 to R-26.
Application is allowed and Annexures R-6 to R-26 are taken on
record.
CRWP No. 356 of 2018
The present petition has been filed by the petitioner under
Article 226 of the Constitution of India for issuance of a writ in the nature
of habeas corpus for searching the detenue, namely, Jaskirat Kaur Takhar,
1 of 9
22-07-2018 07:12:41 :::
Crl. W.P. No. 356 of 2018 (OM) (2)
the minor daughter of the petitioner, who is stated to be Canadian citizen
and has been detained by respondents No. 7 and 8 in connivance with
respondent No. 9 at Hoshiarpur or any other place to be pointed out by the
petitioner. A further prayer has also been made that said detenue be got
released immediately and her custody be given to the petitioner with
permission to go abroad with petitioner in view of consented order passed
by the Supreme Court of British Columbia.
Briefly, the facts of the case as made out in the present petition
are that the petitioner was married to respondent No.9 (Jagjit Singh Takhar)
on 22.11.2006. While living in Canada, two children, namely, Jaskirat Kaur
Takhar (daugther) and Kunwar Singh Takhar (son) were born out of the said
wedlock on 30.1.2010 and 26.1.2011, respectively. Due to some
matrimonial dispute between the petitioner and her husband, they were not
in a position to pull on together. Respondent No. 9 filed a divorce petition
against the petitioner before the Supreme Court of British Columbia,
Canada. During the proceedings, the matter was settled between the
parties. As per settlement dated 26.8.2012, Jaskirat Kaur Takhar (daugther)
was to stay with the petitioner, whereas, custody of Kunwar Singh Takhar
(son) was given to respondent No.9, which was duly signed by the
petitioner as well as respondent No.9. After the settlement arrived at
between the parties, a certificate of divorce was issued by the Supreme
Court of British Columbia on 17.1.2013, which was made effective from
October 27, 2012. Since the custody of minor Jaskirat Kaur Takhar was
given to the petitioner, Care Card Personal Health being citizen of Canada
was issued to the minor as she was born in Canada. Even social insurance
number was also issued to the minor. Alleged detenue Jaskirat Kaur Takhar
2 of 9
22-07-2018 07:12:42 :::
Crl. W.P. No. 356 of 2018 (OM) (3)
is also getting Child Tax benefit, Canada child benefit and petitioner is also
depositing 50.00 dollars in Educational Monthly Plan. Furthermore, the
petitioner is having Life Insurance of Half Million Dollars to which Jaskirat
Kaur Takhar has been nominated as one of the nominee. After divorce
between the petitioner and respondent No.9, the petitioner solemnized
second marriage with one Jaswinder Singh on 8.11.2017. It is pertinent to
mention that after 2012 till 2017, detenue-Jaskirat Kaur Takhar was residing
with the petitioner but in the month of January, 2017 when the petitioner
came to India along with detenue-Jaskirat Kaur Takhar, she was left with
respondents No. 7 and 8. While the petitioner was residing in Canada, she
was continuously sending money for her minor daughter, which is clear
from the receipts annexed as Annexure P-6. After the second marriage, the
petitioner was to go back, respondent No. 7 (brother of the petitioner)
insisted that Jaskirat Kaur Takhar be allowed to stay with him to continue
her session till March, 2018. The petitioner alone went to Canada and
Jaskirat Kaur Takhar stayed in India with brother and sister-in-law of the
petitioner. Meanwhile, respondent No. 9 (earlier husband) took her
daughter with him from the custody of respondents No. 7 and 8. On
knowing this fact, the petitioner came to India on 28.3.2018 and submitted
an application to Senior Superintendent of Police, Hoshiapur, which was
marked to SHO, Police Station, NRI, Hoshiarpur for the purpose of getting
warrant under Section 97 Cr.P.C.
As per case of the petitioner, respondents No. 7 and 8, who are
her brother and sister-in-law have handed over the child to respondent No. 9
(earlier husband). In pursuance of the said warrant, the police went to
District Jalandhar, where Sarpanch, Lambardar and other persons had
3 of 9
22-07-2018 07:12:42 :::
Crl. W.P. No. 356 of 2018 (OM) (4)
undertaken to produce the minor daughter of the petitioner before Sub
Divisional Magistrate on 30.3.2018. Respondents No. 7 to 9 produced the
child on 30.3.2018. Statement of respondent No. 9 was also recorded,
wherein, it has been stated that divorce had been granted as per mutual
consent. He also submitted that respondent No. 7 had informed him that the
petitioner had remarried and asked him to take away the daugther. As per
case of the petitioner, this foul play was played by respondents no. 7 and 8
in connivance with respondent No. 9 just to grab the property of the
petitioner, therefore, the petitioner got cancelled her Power of Attorney on
3.4.2018 vide Cancelled Deed No. 3 dated 3.4.2018. The Sub Divisional
Magistrate, Hoshiarpur handed over the custody of minor Jaskirat Kaur
Takhar to her maternal uncle-Racchpal Singh (respondent No.7) as the child
had also given her consent to go with him and directed both the parties to
take out proceedings before the competent Court of law. Aggrieved by said
order dated 30.3.2018 passed by Sub Divisional Magistrate, the present
petition has been filed by the petitioner for handing over the custody of
minor Jaskirat Kaur Takhar being her mother.
Learned counsel for the petitioner contends that the minor-
Jaskirat Kaur Takhar is citizen of Canada by birth and the petitioner who is
her mother is also residing and earning in Canada. She can easily look after
the interest of the child as earlier also she has been sending money to India
not only for bringing up her well but for education while staying in India.
The petitioner has also invested in many schemes for the welfare of
detenue-Jaskirat Kaur Takhar and being the citizen of Canada her interest is
to be looked into by the Government of Canada being Canadian citizen and
there is no occasion to keep her in India. Learned counsel further submits
4 of 9
22-07-2018 07:12:42 :::
Crl. W.P. No. 356 of 2018 (OM) (5)
that all these factors have not been taken into consideration by learned Sub
Divisional Magistrate while passing order of handing over the custody to
respondents No. 7 and 8. Learned counsel for the petitioner also submits
that the custody of male child is already with the father (respondent No.9)
and respondents No. 7 and 8 in connivance with respondent No. 9 have
hatched a conspiracy just to grab the property of the petitioner being NRI.
Learned counsel has also relied upon the judgments of Hon’ble the Apex
Court in the cases of Smt. Surinder Kaur Sandhu Vs. Harbax Singh
Sandhu and another 1984 AIR (SC) 1224, Mrs Elizabeth Dinshaw Vs.
Arvand M. Dinshaw and another 1987 (1) SCC 42, Gohar Begum Vs.
Suggi @ Nazma Begum and others 1960 AIR (SC) 93, Gaurav Nagpal
Vs. Sumedha Nagpal 2008 (4) RCR (Civil) 928, of this Court in the cases
of Sandeep Kaur Dhillon Vs. State of Punjab and others (CRWP No.
1144 of 2016 decided on 2.9.2016), Kulwinder Dhalilwal Vs. State of
Punjab and others 2009 (1) RCR (Civil) 224, Mrs. Kuldeep Sidhu Vs.
Chanan Singh and another 1988 (1) RCR (Criminal) 534, Ajay Bansal
Vs. State of Punjab and another 2013 (3) RCR (Civil) 340, Marilynn
Ainat Dhillon Gilmore @ Anita Dhillon Vs. Margret Nijjar and others
1983 (1) RCR (Criminal) 396 and Baldev Kaur Vs. General Public and
another 2013 (3) RCR (Civil) 237, in support of his contentions.
Learned senior counsel for respondents No. 7 to 9 has opposed
the submissions made by learned counsel for the petitioner by raising a
preliminary objection that the petitioner has availed wrong remedy by way
of filing the present habeas corpus petition, which is not maintainable. It
has also been argued by learned senior counsel for respondents No. 7 to 9
that custody of minor daughter was given by the petitioner to respondents
5 of 9
22-07-2018 07:12:42 :::
Crl. W.P. No. 356 of 2018 (OM) (6)
No. 7 and 8 as per her own free Will. Learned senior counsel for
respondents No. 7 to 9 submits that petitioner and respondent No. 9
remained together as husband and wife even after divorce, which is clear
from the documents like income tax return, air tickets etc. It has also
brought to the notice of this Court that even the minor is not interested to
accompany the petitioner. Learned senior counsel for respondents No. 7 to 9
has also relied upon the judgments of Hon’ble the Apex Court in the cases
of Dr. Mrs. Veena Kapoor Vs. Varinder Kumar Kapoor 1982 AIR (SC)
792, Nithya Anand Raghavan Vs. State of NCT of Delhi and another
2017 (3) RCR (Civil) 798, Prateek Gupta Vs. Shilpi Gupta and others
2018 (1) RCR (Civil) 210 and of this Court in the cases of Om Pati Vs.
Suraj Bhan 1997 (4) RCR (Civil) 6, Smali Bagga Vs. State of Punjab
and others 1996 (2) RRR 202, Kiran Rani Vs. Krishan Kumar and
others 1995 (1) RCR (Criminal) 430, Kulwinder Kaur Vs. State of
Punjab and others 2014 (2) RCR (Civil) 1051, Preet Ranjan Kaur Vs.
Harjit Singh and another 2012 (19) RCR (Criminal) 837, in support of
his contentions.
Heard the arguments advanced by learned counsel for the
parties and have also gone through the order passed by the Sub Divisional
Magistrate, Hoshiarpur and other documents available on the file.
From the arguments and perusal of documents available on the
file, it appears that alleged detenue-Jaskirat Kaur Takhar, who is daugther of
the petitioner was born in Canada and is a Canadian citizen. It is not
disputed that divorce has already been granted between petitioner and
respondent No. 9 by Supreme Court of British Columbia. After the divorce,
the petitioner remarried with Jaswinder Singh. From the earlier wedlock, the
6 of 9
22-07-2018 07:12:42 :::
Crl. W.P. No. 356 of 2018 (OM) (7)
petitioner is having two children i.e. son, namely, Kunwar Singh Takhar and
daughter, namely, Jaskirat Kaur Takhar. As per settlement arrived at
between the parties before the Supreme Court of British Columbia, son of
the petitioner was to stay with respondent No.9 and daughter with the
petitioner. Now in the present case, the dispute is of the custody of
daugther of the petitioner, which is with respondents No. 7 and 8, who are
brother and sister-in-law of the petitioner. On hearing the arguments, it
appears that brother and sister-in-law of the petitioner/maternal uncle and
aunt of the alleged detenue-Jaskirat Kaur Takhar are interested in having her
custody. The temporary custody of the alleged detenue-Jaskirat Kaur
Takhar was given to respondents No. 7 and 8 by Sub Divisional Magistrate,
Hoshiarpur with liberty to the parties to take appropriate proceedings
before the competent Court. Respondent No. 9, who is earlier husband of
the petitioner is also claiming custody of alleged detenue- Jaskirat Kaur
Takhar. Several arguments have been raised to show that although divorce
was granted but after divorce also petitioner and respondent No. 9 remained
together as wife and husband. Their relationship is also reflected in many
documents.
At the time of hearing of the case, petitioner and respondents
No. 7 to 9 along with both the children were present in the Court. The
judgment of the case was reserved on 1.6.2018 as learned senior counsel for
respondents No. 7 to 9 requested for some time to supply the written
submissions and the same were thereafter supplied. Respondent No. 9 has
supplied copy of the petition filed under Sections 7 and 25 of Guardian and
Wards Act, 1890 read with Sections 6 and 13 of Hindu Minority and
Guardianship Act, 1956 for grant of legal custody of minor daugther
7 of 9
22-07-2018 07:12:42 :::
Crl. W.P. No. 356 of 2018 (OM) (8)
Jaskirat Kaur Takhar, which is stated to be filed in the Court of Sh.
Rajesh Ahluwalia, Guardian Judge-cum-ACJ (SD), Nakodar but neither any
number nor date of filing is mentioned on the same. It has been signed by
respondent No. 9 as well as by Sh. Rohit Narang, Advocate, Civil Courts,
Nakodar. Without having date of filing and number, it cannot be
ascertained as to whether it has actually been filed or got prepared.
Petitioner-Amarjeet Kaur Takhar filed an application before Sub Divisional
Magistrate, Hoshiarpur regarding custody of minor daugther, which was
given to maternal uncle and aunt (respondents No. 7 and 8) vide order dated
30.3.2018. However a direction was issued to both the parties that they can
avail the appropriate remedy for custody of minor girl before the competent
authority. The relevant portion of order dated 30.3.2018 is reproduced as
under:-
“Therefore, I hereby pass an order for sending the girl Jaskirat
Kaur Takhar to her maternal uncle Shri Racchpal Singh
becuase the child has given her consent to go to her maternal
uncle and maternal aunt. The police department at his own
level can decide the security of the girl and while handing over
the girl Jaskirat Kaur Takhar to her maternal uncle Shri
Racchpal singh, can produce his report. Both the parties are
hereby directed that they for the custody of the girl Jaskirat
Kaur Takhar can take out proceedings before the Hon’ble
competent Court.”
It is also relevant to mention here that none of the parties had
challenged the aforesaid order passed by Sub Divisional Magistrate,
Hoshiarpur, which shows that they have accepted the same. However, the
8 of 9
22-07-2018 07:12:42 :::
Crl. W.P. No. 356 of 2018 (OM) (9)
present criminal writ petition has been filed by the petitioner under Section
226 of the Constitution of India for searching detenue-Jaskirat Kaur Takhar,
minor daugther of the petitioner, who is stated to be detained by respondents
No. 7 and 8 in connivance with respondent No.9. From the arguments as
well as documents available on the file, it is not clear as to whether the
petition for custody of child has actually been filed or not as in absence of
any case number and date of filing, it cannot be presumed that actually it has
been filed.
Keeping in view the facts and circumstances of the case as
mentioned above, the present petition is dismissed.
In case any petition for custody of alleged detenue-Jaskirat
Kaur Takhar has been filed, the parties are at liberty to pursue with the
proceedings. In case no such petition has been filed, the parties are at
liberty to avail the appropriate remedy before the competent authority as
directed by learned Sub Divisional Magistrate.
9.7.2018 (DAYA CHAUDHARY)
pooja JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes
9 of 9
22-07-2018 07:12:42 :::