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Amarjeet Kaur Takhar vs State Of Punjab & Ors on 9 July, 2018

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,

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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

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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

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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

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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

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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

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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

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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

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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

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