Surjeet Singh vs State & Another on 27 April, 2012

Delhi High Court

Surjeet Singh vs State & Another on 27 April, 2012
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 19.04.2012

Judgment pronounced on: 27.04.2012

+ W.P.(Crl.) 494/2010

SURJEET SINGH ..... Petitioner

versus

STATE & ANOTHER ..... Respondents

Advocates who appeared in this case:

For the Petitioner : Mr. Arunav Patnaik & Mr. D.B.Ray
For the Respondent : Mr. Ravinder Singh for R-2

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN

V.K. JAIN, J.

This is a petition under Article 226 of the Constitution of India seeking issuance of a
writ/order/direction in the nature of habeas corpus to the respondents to produce minor children
viz. Jasmine Kaur and Vaani Kaur, daughters of the petitioner before this Court and giving their
custody to him.

Respondent No.2 before this Court Mrs. Harpreet Kaur is the wife of the petitioner and their
marriage was solemnized in India on 17.11.2003. The petitioner was a permanent resident of New
Zealand prior to his marriage. In February, 2004, both of them came to live in New Zealand.
Respondent No.2 also acquired permanent residency of New Zealand in the year 2006. The
petitioner became a New Zealand citizen in March, 2008. Both the children were born in New
Zealand and consequently acquired citizenship of that country.

The petitioner, respondent No.2 as well as both their children came to India on 6.3.2009. The
petitioner had planned to return to New Zealand on 10.4.2009, whereas respondent No.2 was to
return on 12.6.2009 along with both the children. It is alleged that respondent No.2 refused to
return to New Zealand and also retained the custody of the children with her, in India. On 25.2.2010
the petitioner preferred a petition before the High Court of New Zealand under the provisions of
Care of Children Act, 2004, for placing his minor children under the guardianship of the Court at
New Zealand. Vide order dated 12.3.2010, the High Court of New Zealand directed that both the
children be placed under the guardianship of that Court. Respondent No.2 was directed to ensure
that the children were returned to the jurisdiction of New Zealand court within two weeks. Since
respondent No.2 did not comply with the order passed by the New Zealand court, this petition has

Indian Kanoon - http://indiankanoon.org/doc/194224681/ 1

 Surjeet Singh vs State & Another on 27 April, 2012

been filed seeking production and custody of the children.

2. The petition has been opposed by respondent No.2. In her counter-affidavit she has alleged that
she apprehends danger/threat to her life and lives of her children, if she goes to New Zealand. She
also fears harassment by the petitioner, who is alleged to be violent by nature and guilty of treating
her with utmost cruelty on numerous occasions. She has also submitted that the children are not in
wrongful custody, she being their mother and having lawfully brought them to India along with the
petitioner. It has been pointed out that this is not a case where children have been brought to India
in disobedience of an order of the foreign court. It is further submitted that the children being girls
of tender age and respondent No.2, being their mother, the respondent No.2 is in a better position
to take care of them. Referring to the e-mails sent by the petitioner to her and the telephonic
conversation between them, respondent No.2 has alleged that in the light of his behavior, the
petitioner is not entitled to any relief from this Court.

3. It is an undisputed fact that both the children were brought to India jointly by the petitioner and
respondent No.2. It is also not in dispute that when the petitioner left for New Zealand, respondent
No.2 as well as children stayed back in India with his consent though they were scheduled to return
to New Zealand on 12.6.2009 and their air-tickets for the travel had been booked in advance. The
elder daughter viz. Jasmine Kaur was born on 16.9.2004 and the younger child Vaani Kaur was born
on 3.1.2008. Both these children were less than 5 years old when they were brought to India on
6.3.2009. Even as on today, Jasmine Kaur is about 7 ½ years old, whereas Vaani Kaur is about 04
years old. Section 6 of Hindu Minority and Guardianship Act, 1956 which applies to the parties, to
the extent it is relevant, provides that the custody of a minor child, who has not completed the age of
05 years shall ordinarily be with the mother. Hence, on the date these children were brought to
India, respondent No.2 being their mother, was lawfully entitled to their custody. She continues to
be entitled to the custody of Vaani Kaur, who is less than 05 years old. Section 13(2) of the Act
provides that no person shall be entitled to the guardianship by virtue of provisions of this Act or of
any law relating to guardianship in marriage among Hindus, if in the opinion of the Court, his or her
guardianship will not be for the welfare of the minor. Though the natural guardians are enumerated
in Section 6 the right is not absolute and the Court has to give paramount consideration to the
welfare of the minor.

4. In Syed Saleenmuddin v. Dr. Rukhsana and Ors, (2001) 5 SCC 247, the Supreme Court dealing
with a habeas corpus seeking custody of minor children, inter alia, observed as under:-

"11. From the principles laid down in the aforementioned cases it is clear that in an
application seeking a writ of Habeas Corpus for custody of minor children the
principal consideration for the Court is to ascertain whether the custody of the
children can be said to be unlawful or illegal and whether the welfare of the children
requires that present custody should be changed and the children should be left in
care and custody of somebody else. The principle is well settled that in a matter of
custody of a child the welfare of the child is of paramount consideration of the Court."

Indian Kanoon - http://indiankanoon.org/doc/194224681/ 2

 Surjeet Singh vs State & Another on 27 April, 2012

In Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, the Supreme Court quoted with approval
the following statement of law in America with respect to the custody of a child in a habeas corpus
matter:

"Generally, where the writ of habeas corpus is prosecuted for the purpose of
determining the right to custody of a child, the controversy does not involve the
question of personal freedom, because an infant is presumed to be in the custody of
someone until it attains its majority. The Court, in passing on the writ in a child
custody case, deals with a matter of an equitable nature, it is not bound by any mere
legal right of parent or guardian, but is to give his or her claim to the custody of the
child due weight as a claim founded on human nature and generally equitable and
just. Therefore, these cases are decided, not on the legal right of the petitioner to be
relieved from unlawful imprisonment or detention, as in the case of an adult, but on
the Court's view of the best interests of those whose welfare requires that they be in
custody of one person or another; and hence, a court is not bound to deliver a child
into the custody of any claimant or of any person, but should, in the exercise of a
sound discretion, after careful consideration of the facts, leave it in such custody as
its welfare at the time appears to require. In short, the child's welfare is the supreme
consideration, irrespective of the rights and wrongs of its contending parents,
although the natural rights of the parents are entitled to consideration.

An application by a parent, through the medium of a habeas corpus proceeding, for

custody of a child is addressed to the discretion of the court, and custody may be
withheld from the parent where it is made clearly to appear that by reason of
unfitness for the trust or of other sufficient causes the permanent interests of the
child would be sacrificed by a change of custody. In determining whether it will be for
the best interest of a child to award its custody to the father or mother, the Court may
properly consult the child, if it has sufficient judgment.

(emphasis supplied)"

With respect to the principle of comity of Courts, the Supreme Court in a recent decision in Ruchi
Majoo v. Sanjeev Majoo (2011) 6 SCC 479, inter alia, observed and held as under:

"47........Welfare of the minor in such cases being the paramount consideration; the
court has to approach the issue regarding the validity and enforcement of a foreign
decree or order carefully. Simply because a foreign court has taken a particular view
on any aspect concerning the welfare of the minor is not enough for the courts in this
country to shut out an independent consideration of the matter. Objectivity and not
abject surrender is the mantra in such cases. That does not, however, mean that the
order passed by a foreign court is not even a factor to be kept in view. But it is one
thing to consider the foreign judgment to be conclusive and another to treat it as a
factor or consideration that would go into the making of a final decision......

Indian Kanoon - http://indiankanoon.org/doc/194224681/ 3

 Surjeet Singh vs State & Another on 27 April, 2012

58. Proceedings in the nature of Habeas Corpus are summary in nature, where the
legality of the detention of the alleged detente is examined on the basis of affidavits
placed by the parties. Even so, nothing prevents the High Court from embarking
upon a detailed enquiry in cases where the welfare of a minor is in question, which is
the paramount consideration for the Court while exercising its parens patriae
jurisdiction. A High Court may, therefore, invoke its extra ordinary jurisdiction to
determine the validity of the detention, in cases that fall within its jurisdiction and
may also issue orders as to custody of the minor depending upon how the court views
the rival claims, if any, to such custody.

59. The Court may also direct repatriation of the minor child for the country from
where he/she may have been removed by a parent or other person; as was directed by
this Court in Ravi Chandran's & Shilpa Aggarwal's cases or refuse to do so as was the
position in Sarita Sharma's case. What is important is that so long as the alleged
detenue is within the jurisdiction of the High Court no question of its competence to
pass appropriate orders arises. The writ court's jurisdiction to make appropriate
orders regarding custody arises no sooner it is found that the alleged detenue is
within its territorial jurisdiction.

63....... What needs to be examined is whether the High Court was right in relying
upon the principle of comity of courts and dismissing the application. Our answer is
in the negative. The reasons are not far to seek. The first and foremost of them being
that `comity of courts' principle ensures that foreign judgments and orders are
unconditionally conclusive of the matter in controversy. This is all the more so where
the courts in this country deal with matters concerning the interest and welfare of
minors including their custody. Interest and welfare of the minor being paramount, a
competent court in this country is entitled and indeed duty bound to examine the
matter independently, taking the foreign judgment, if any, only as an input for its
final adjudication. Decisions of this Court in Dhanwanti Joshi, and Sarita Sharma's
cases, clearly support that proposition."

5. In an earlier decision, Sarita Sharma vs. Sushil Sharma (2000) 3 SCC 14, the parties were residing
in USA along with their two minor children one aged seven years and the other aged three years.
Proceedings for dissolution of marriage were initiated by the husband in a US court. In those
proceedings, interim orders were passed from time to time with respect to the care and custody of
the children and visitation right of the appellants. During the pendency of divorce proceedings, the
petitioner-mother of the children took the children with her though in USA itself. The Associate
Judge passed an order for putting children back in the care of the father and the mother was given
only visitation right. On 7.5.1997, the mother Smt. Sarita picked up the children from the residence
of the husband while exercising her visitation right. She was to bring the children back to the school
next day morning, but she failed to do so. On the husband informing the police, a warrant of her
arrest was issued. Smt. Sarita came to India with her children. On 12.6.1997, a divorce decree was
passed by the Associate Judge and the husband was given sole custody of the children. Sarita was
denied even the visitation right. The husband Sushil Sharma then filed a writ petition in this Court.

Indian Kanoon - http://indiankanoon.org/doc/194224681/ 4

 Surjeet Singh vs State & Another on 27 April, 2012

This Court rejected the contention of Sarita Sharma that the decree of divorce and order for custody
of the children had been obtained by the husband by practising fraud on the Court and directed
Sarita Sharma to restore the custody of the children to the husband. Their passports were also
ordered to be handed over to him. Being aggrieved from the order passed by this Court, the wife
Sarita approached the Supreme Court by way of a Special Leave Petition. It was contended by her
that when she came to India with children, she was their natural guardian.

The question which arose before the Court was whether the custody of the children had become
illegal as Sarita committed a breach of the order of the Marriage Court directing her not to remove
children from the jurisdiction of the court without its permission. Another question which came up
before the Supreme Court was as to whether her custody of the children became illegal after decree
of divorce and order passed by American Court giving custody of children to her husband. Allowing
the appeal of the mother and setting aside the order passed by this Court, the Supreme Court, inter
alia, held as under:

"6. Therefore, it will not be proper to be guided entirely by the fact that the appellant
Sarita had removed the children from U.S.A. despite the order of the Court of that
country. So also, in view of the facts and circumstances of the case, the decree passed
by the American Court though a relevant factor, cannot override the consideration of
welfare of the minor children. We have already stated earlier that in U.S.A.
respondent Sushil is staying along with his mother aged about 80 years. There is no
one else in the family. The respondent appears to be in the habit of taking excessive
alcohol. Though it is true that both the children have the American citizenship and
there is a possibility that in U.S.A. they may be able to get better education, it is
doubtful if the respondent will be in a position to take proper care of the children
when they are so young. Out of them one is a female child. She is aged about 5 years.
Ordinarily, a female child should be allowed to remain with the mother so that she
can be properly looked after. It is also not desirable that two children are separated
from each other. If a female child has to stay with the mother, it will be in the interest
of both the children that they both stay with the mother. Here in India also proper
care of the children is taken and they are at present studying in good schools. We
have not found the appellant wanting in taking proper care of the children. Both the
children have a desire to stay with the mother. At the same time it must be said that
the son, who is elder than daughter, has good feelings for his father also. Considering
all the aspects relating to the Welfare of the children, we are of the opinion that in
spite of the order passed by the Court in U.S.A. it was not proper for the High Court
to have allowed the Habeas Corpus writ petition and directed the appellant to hand
over custody of the children to the respondent and permit him to take them away to
U.S.A. What would be in the interest of the children requires a full and thorough
inquiry and, therefore, the High Court should have directed the respondent to initiate
appropriate proceedings in which such an inquiry can be held.........."

In Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112, the appellant who was living with the
husband in USA for ten months after her marriage to him on 11.6.1982, left the respondent on

Indian Kanoon - http://indiankanoon.org/doc/194224681/ 5

 Surjeet Singh vs State & Another on 27 April, 2012

20.4.1983 along with their child who at that time was 35 days old. There was litigation between the
parties, both civil and criminal, in India as well as in USA for 14 years. The husband continued to
live in USA while the wife along with her son was living in India. The husband filed a divorce case in
USA and also sought custody of the child. A divorce decree was passed ex parte on 23.9.1983. On
20.2.1984, the appellant came to India along with the child. The respondent husband then obtained
an order on 11.4.1984 whereby visitation rights were given to him. This was followed by another
order whereby temporary custody was given to him. On 28.4.1986, the US Court passed an ex parte
order granting permanent custody of the child to the respondent-husband. The appellant filed a
petition in the Civil Court seeking declaration that her marriage with respondent was null and void,
he being already married at that time. The respondent came to India and filed a Habeas Corpus
petition seeking custody of the child. The writ petition was dismissed by the High Court. The
husband, however, was given visitation rights. A petition under Section 13 of the Hindu Minority
and Guardianship Act was filed by the appellant/mother, seeking permanent custody of the person
and property of her son. The court appointed her the permanent and lawful guardian of the person
and property of the child. The order of the trial court was upheld by the High Court. The matter was
taken to Supreme Court, by the husband. The Supreme Court, while dismissing the appeal filed by
the husband observed that he could have any other remedy open in law against the ex parte decree.
The husband/respondent then filed a petition seeking custody of the child. The family court allowed
the application filed by him and granted custody of the child to the respondent. The appeal filed by
the mother/appellant against the order of the family court was dismissed for non-prosecution. An
application filed by her to set aside the dismissal order, was also dismissed holding that she had no
case, on merit, for retaining the custody of the child. One of the questions which fell for
consideration before the Supreme Court in the appeal filed by the wife was as to whether her
bringing the child to India contrary to the order of US Court, would have any bearing on the decision
of the courts in India, while deciding about custody and welfare of the child. The Supreme Court
held that it was the duty of the courts in the country to which a child is removed, to consider the
question of the custody having regard to the welfare of the child. As observed by the Supreme Court
in Ruchi Majoo (supra), in doing so, the order passed by the foreign court would yield to the welfare
of the child and comity of Courts simply demands consideration of any such order issued by the
foreign courts and not necessarily their enforcement.

6. It would, thus, be seen that in the case of Sarita Sharma (supra), the Supreme Court allowed the
wife to have custody of the child, giving primacy to the welfare of the child, despite the fact that she
had removed the children from the custody of the husband, in violation of the order passed by the
Associate Judge, who had put them in custody of her husband and further order of the US Court,
declaring that the sole custody of the children shall be with the husband. In Dhanwanti's case
(supra), also, Supreme Court allowed the wife to retain custody of the child despite the order of US
court, giving permanent custody of the child to the husband. In both these cases welfare of the child
was held to be the paramount consideration in such matters. The court was clearly of the view that
the principle of comity of Courts and the orders passed by the foreign courts were only one of the
relevant factors to be taken by the courts into consideration, the prime consideration in all such
cases being as to whether the welfare of the child lies with the husband or the wife. In the case
before this court, admittedly, there was no order of New Zealand court giving custody of the children
to the petitioner alone or to both, the husband and wife, at the time the children came to India. The

Indian Kanoon - http://indiankanoon.org/doc/194224681/ 6

 Surjeet Singh vs State & Another on 27 April, 2012

children were not brought to India at the back of their father or without his consent. The entire
family came together to India. While leaving India, the petitioner agreed that respondent No.2
would join him later in New Zealand in the month of June along with children. Therefore, neither
the children were brought to India in violation of a court's order nor can it be said that respondent
No.2 was illegally withholding the children with her when they came to India or when the petitioner
left for New Zealand.

7. It is not in dispute that the relations between the petitioner and respondent No.2 are far from
cordial. This became evident when respondent No.2 did not return to New Zealand along with the
children in June 2009 despite their return tickets having already been booked. In her counter
affidavit, respondent No.2 has alleged cruelty and harassment at the hands of the petitioner. Some
of the instances of cruelty and harassment alleged in the counter affidavit are as under:

"13.04.2005 That on the 13th of April, 2005, the respondent called her mother to
wish her on her birthday. She inquired about her father and learnt that he was
attending the Sat Sang. On haring this, the petitioner got angry and started shouting
at the respondent and also slapped her despite the assurance of petitioner's parents.

Jan 2006 That in January, 2006 a friend of respondent was leaving for India and
while returning from the New Zealand airport after seeing her off, the petitioner
started shouting at the respondent for having talked about her parents at the airport.

Oct 2007 That in October, 2007, respondent was expecting another baby and the
petitioner insisted her to call her mother to New Zealnad. The brother of respondent
No.2 asked her about the visa procedure and for this too she was slapped by the
petitioner. The mother of respondent no.2 visited her in New Zealand on 3.1.2008
and on that date, her second daughter was born. During the stay of the respondent
mother, the father of the petitioner abused the mother of respondent and blamed her
that it was because of her, the respondent no.2 had a pre-mature baby and they had
to spend money on her medical treatment.

11.03.2009 That on 11.3.2009, the parties came to Delhi and went to the house of the
petitioner where they stayed till 8.4.2009 when the petitioner left for New Zealand.
During this stay, the respondent and her minor children only once visited the house
of her parents.

10.4.2009 That on 10.4.2009, the respondent came to her parents house for few days
in May, 2009 her brother came to India from U.S.A. to find a suitable match for his
marriage. The respondent's brother found a match and on 6.6.2009 a Roka ceremony
was held. At, 9 a.m., the father of the respondent invited at phone the family of the
petitioner but the petitioner had instructed not to attend the function. The ceremony
was to be held at 11.30 a.m., followed by a lunch at 2.30 p.m. but with the intent to
harass the respondent, the petitioner sent respondent late so that ceremony could be
held at 1.30 p.m. and lunch at 5 p.m. the respondent was brought by her father in law

Indian Kanoon - http://indiankanoon.org/doc/194224681/ 7

 Surjeet Singh vs State & Another on 27 April, 2012

at 6 p.m. 08.06.2009 That on 8.6.2009, the father of the petitioner told the father of
the respondent to give a phone call to the petitioner thanking him for allowing the
respondent to attend the function. But the petitioner abused him on pone for an hour
using filthy language.

09.06.2009 That on 9.6.2009, the uncle of respondent came to her in laws house to
bring her to Rajinder Nagar, New Delhi, as the respondent was suspposed to leave for
New Zealand on 10.6.2009, and after begging for four hours, the father of the
petitioner allowed the respondent to go but after getting in writing four pages with
her signatures and dates that is she is going on her own accord and she was not
allowed to take her kids, Ms. Jasmine Kaur and Ms. Vaani Kaur as was instructed by
the respondent. The purse of the respondent was also checked. She was allowed to go
at 4 p.m. without her daughters aged 5 years and 1½ years old. She requested her
father in law to give her kids as her younger daughter was on breast feed but he
abused her. At 11 p.m. respondent and her uncle went to the house of the in-laws and
the father in law started abusing them. He also gave a jolt to the turban of the uncle
of the respondent and also slapped him. The shocked uncle came back quietly.

10.06.2009 That on 10.6.2009, the father in law of the respondent who had received
instructions from the petitioner started using rough and filthy language and forcibly
put off the jewellery of the respondent. At 1 p.m. the father of respondent having
undergone so much trauma about these cruelties with the help of police freed
respondent and her kids from her father in law and brought her back home wearing
apparels only. Since then she is living with her parents and all her belongings are also
kept by the in laws."

8. The allegations made in the counter affidavit have been denied by the petitioner in the rejoinder
affidavit filed by him. We cannot examine the truthfulness or otherwise of all these allegations in
this petition under Article 226 of the Constitution. We would, however, like to take note of certain
facts which have a bearing on the issue of welfare of the minor children:

(a) Criminal M.A. No. 83/2010 was filed by respondent No.2 alleging therein that the petitioner
made a telephone call to her on 23.5.2010 and made derogatory, abusing, threatening and
uncivilized remarks not only against her but against her parents and relatives as well. A cassette of
the tape-recorded telephonic conversation was also annexed to the application. The learned counsel
representing the petitioner on 04.06.2010, on instructions from the petitioner, categorically denied
that the petitioners had made any such telephonic call on 23.5.2010 at 11 a.m. or that he had used
derogatory remarks against by respondent No.2 or her parents or relatives. Vide order dated
13.8.2010 we directed the petitioner to file an affidavit indicating as to whether the male voice in the
recorded conversation was his voice or not. Another copy of the audio cassette was also handed over
to his counsel. We also directed learned counsel for the petitioner to take instructions from him as to
whether he was willing to come to India for giving his voice sample so that the same can be
compared with male voice in the recorded cassette submitted by the respondent No.2. On
26.11.2010, we were informed that the petitioner was not willing to come to India for this purpose.

Indian Kanoon - http://indiankanoon.org/doc/194224681/ 8

 Surjeet Singh vs State & Another on 27 April, 2012

The cassette was then sent by us to CFSL, CBI, New Delhi for the purpose of examining as to
whether the audio contained therein had been deterred/tampered with or not by insertion or
deletion of pieces of conversation which is recorded therein. We received a report from CFSL,
opining that the recording in the cassette was continuous and no form of tampering to the recording
had been detected. Therefore, it cannot be said that the cassette filed by respondent No.2 has been
interpolated in any manner. As regards the male voice in the cassette, it was subsequently conceded
by the learned counsel for the petitioner, during the course of arguments before us that the voice
was that of the petitioner. Thus, we have an admission of the petitioner that the voice in the cassette
is his voice and we also have a report from the CFSL opining that there has been no tampering with
the said cassette. It is also evident from the admission made by the learned counsel for the
petitioner before us, during the course of arguments, that the petitioner, through his counsel, had
made a false statement before us on 04.06.2010 when he stated that he had not made any
derogatory remarks against respondent No.2 or her parents or her relatives. Some of the extracts
from the English translation of the Hindi conversation recorded in the said cassette read as under:

"Surjeet:-Where Jasmine is gone.

Harpreet:-She went to Gurudwara.

Surjeet:-You bastard are sitting in the house, Bhen ki lori sent her to Gurudwara,
Haramjadi, Kutte ki bacchi I am trying on phone for two hours and not attending,
your entire family is sons of bastard, Kanjaro, Bhenchodo live ashamed.

Harpreet:-Really you have no manners.

Surjeet:-Bhen ki lodi, kutti, Bhenchod, Randi you have no manners.

Harpreet:-This is manners, this is manners, this is manners. Surjeet:-You will teach

me manners, why you sit for fucking when your father shown manners and what
manners shown by your father, your uncle bhen ka loda, son of dog what manners he
shown to you.

Harpreet:-good on you, Good on you. You have got these manners. I say one year has
completed in one man. Surjeet:-You come to fuck your mother, your attraction has
finished and you again coming for fucking sister. You and your father are very
bastards and he was not feeling ashamed while disconnecting phone. And on next
day when I made phone call he called police then he was not ashamed.

Harpreet:-Your father not ashamed when took out my jewellery and not ashamed
while naked her daughter in law. Surjeet:-Kutti ki bacchi, Harm ki aulad, Benchod,
your father was not ashamed.

Harpreet:- Your parents are not ashamed when they gives filthy abusing.

Indian Kanoon - http://indiankanoon.org/doc/194224681/ 9

 Surjeet Singh vs State & Another on 27 April, 2012

Surjeet:-Call your brother, Bhen ke lode in my front, Bhenchod has died.

Harpreet:-You, You are a impossible person. Surjeet:-Tere maa ki chut, Bhenki lodi,
callyour father I will talk with him, call that Bhenchod if he is son of only a man. Call
your brother and father so that I can talk with them.

xx xx xx xx xx xx xx xx xx Surjeet:-Your uncle Randwa, Behnchod says me that my

wife has lost attraction for me and he was putting penis for giving, you were sitting
for fucking by your uncle. Harpreet:-Be ashamed, how can a person can tell all these
for his wife and what compromise will be made by him, what is your aim.

Surjeet:-Bhenki Lodi, talk with me on phone today, come in front of me I fuck your
mother.

Harpreet:-Very good, give more abusing except that what you know and learnt and I
was telling for long time what type of you and know this person very well.

xx xx xx xx xx xx xx xx xx Surjeet:-He will fuck his daughter after going in house.

xx xx xx xx xx xx xx xx xx Surjeet:-Your father was bastard since first day and use to

say I demand for dowry.

Harpreet:-Whether you have married with me or my father. Tell me from whom you
married.

Surjeet:-Haram ki aulad, call your Benchod father.

xx xx xx xx xx xx xx xx xx Surjeet:-I say that you are daughter of bastard and not

daughter of your father and you will be daughter of bastard if you not tell that you
have to live with me after marriage. You should come her along with children. Come
here and why are escaping from situation and responsibility.

xx xx xx xx xx xx xx xx xx Harpreet:-I have allowed my children to talk with you but

how can allow a father who talks with children by giving abusing.

Surjeet:-The person will be son of dog who will sent his sister for fucking again and
why you not told before the court that you want to live with me and why told lie.

xx xx xx xx xx xx xx xx xx Surjeet:-Kutte ki bacchi, haramjadi, Ullu ki pathi."

(b) The petitioner has been sending messages to respondent No.2 and to say the least, the
expressions used in some of these SMSs cannot be said to be parliamentary and do not behove of an
educated person like him. One SMS sent by the petitioner to respondent No.2 reads as under:-

Indian Kanoon - http://indiankanoon.org/doc/194224681/ 10

 Surjeet Singh vs State & Another on 27 April, 2012

"Is it your status'O' you mean character bastard father, you have given these bad
teachings to your daughter that she lost her attraction towards her husband & you
will search new husband for your daughter.

9. Having considered the matter and heard the learned counsel for the parties at considerable
length, we are of the opinion that for the reasons stated herein below, it could not be in the interest
of the minor children, to sent them to New Zealand.

i) Both the children are minor girls, one aged about seven years and the other aged about four years
and hence both of them need constant company of their mother. If we direct the respondent No.2 to
take the children to New Zealand and live with the petitioner, considering the behavior of the
petitioner as is reflected in the tape-recorded conversation, it will not be safe for respondent No.2 to
live with the petitioner in New Zealand. The petitioner is likely to cause mental as well as physical
cruelty to respondent No.2 if she lives with him. If the petitioner misbehaves with respondent No.2
in the presence of these minor girls, it is bound to have a damaging and ever-lasting negative impact
on them and make them constantly worry about their safety and the safety and welfare of their
mother. The cruelty with respondent No.2 is likely to cause trauma and distress not only to her, but
also to her children.

ii) If we give custody of the children to the petitioner, that would not be in the interest of these girls
who need constant care, attention, devotion and love from their mother. Of course, it cannot be
disputed that the children need the company of the father as well, but if a choice has to be made
between the father and the mother, we are of the firm view that in the facts and circumstances of the
case, the welfare of the children lies in being with the mother rather than being with the father.

iii) As far as the younger daughter Vaani's care is concerned, she being less than five years old,
respondent No.2 continues to be her natural guardian in terms of Hindu Minority and Guardianship
Act, 1956 and it would not be in the interest of the children to separate them from each other. Even
the children would not like to part with the company of each other, even if it is at the cost of losing
the company of their father.

iv) Both the children are now in India for the last almost three years and are receiving education in
Delhi. It will not be in their interest to discontinue their studies abruptly and join some school in
New Zealand, since the education received by them in India is not likely to be recognized by the
schools in New Zealand.

v) Section 3(3) of Domestic Violence Act, 1995 (New Zealand) reads as under:-

"3 Meaning of domestic violence:

(1) In this Act, domestic violence , in relation to any person, means violence against
that person by any other person with whom that person is, or has been, in a domestic
relationship.

Indian Kanoon - http://indiankanoon.org/doc/194224681/ 11

 Surjeet Singh vs State & Another on 27 April, 2012

(2) In this section, violence means--

(a) Physical abuse:

(b) Sexual abuse:

(c) Psychological abuse, including, but not limited to,--

(i) Intimidation:

(ii) Harassment:

(iii) Damage to property:

(iv) Threats of physical abuse, sexual abuse, or psy- chological abuse:

(v) In relation to a child, abuse of the kind set out in subsection (3) of this section.

(3) Without limiting subsection (2)(c), a person psychologically abuses a child if that
person--

(a) causes or allows the child to see or hear the physical, sexual, or psychological
abuse of a person with whom the child has a domestic relationship; or

(b) puts the child, or allows the child to be put, at real risk of seeing or hearing that
abuse occurring;--

but the person who suffers that abuse is not regarded, for the purposes of this
subsection, as having caused or allowed the child to see or hear the abuse, or, as the
case may be, as having put the child, or allowed the child to be put, at risk of seeing or
hearing the abuse."

Considering the behavior of the petitioner as is reflected in the tape-recorded

conversation referred hereinabove, if the petitioner physically or mentally abuses
respondent No.2, which we feel he is likely to do considering his past behavior, and
such an act on the part of the petitioner is witnessed by the children, this would
amount to psychologically abusing the children under the laws of New Zealand and it
would not be appropriate for us to pass an order which is likely to result in the
children being psychologically abused by the petitioner.

vi) On 19.4.2012, we interacted with the children in our chambers in the presence of the learned
counsel for the parties, to ascertain whether they wanted to live in India or to go to New Zealand.
Both the children clearly stated that they would like to stay in India with their mother even if it is at
the cost of being deprived of the company of their father. Both the children, therefore, have clearly

Indian Kanoon - http://indiankanoon.org/doc/194224681/ 12

 Surjeet Singh vs State & Another on 27 April, 2012

expressed a disinclination to go to New Zealand to their father.

10. Having given due regard to the order passed by the New Zealand Court directing the respondent
No.2 to place both the children in its custody, we are of the view that the relief sought in this petition
should not be granted since it will not be in the interest of the children to send them back to New
Zealand. The welfare of the minor is the paramount consideration, even in a case involving principle
of comity of courts.

11. During the course of arguments, learned counsel for the petitioner placed reliance upon the
decisions of the Supreme Court in V. Ravi Chandran v. Union of India and Ors (2010) 1 SCC 174 and
Shilpa Aggarwal vs. Aviral Mittal (2010) 1 SCC 591. In V. Ravi Chandran (supra), the Supreme Court
was dealing with a Habeas Corpus petition filed directly before it under Article 32 of the
Constitution. In that case, respondent No.6 before the Supreme Court had approached New York
State Supreme Court, for divorce and dissolution of marriage. A consent order governing issue of
custody and guardianship of minor child Adithya was passed by the court on 18.4.2005, granting
joint custody of the child to the petitioner and respondent No.6. Both of them consented to the order
giving joint custody of the child to them. The marriage between them was dissolved on 8.9.2005.
The order pertaining to the custody of the child was incorporated in that order. With the consent of
the parties, the order was passed by the family court of State of New York on 18.6.2007, ordering
that the parties shall share joint legal and physical custody of the minor child. Some other directions
were also given in that order. On 28.6.07, respondent No.6 brought the minor child to India
informing the petitioner that she would be residing with her parents in Chennai. On 8.8.2007, the
petitioner filed a petition before the family court of the State of New York, for modification and
alleging violation of the custody order, by respondent no.6. The Court passed an order giving
temporary sole custody of the child to the petitioner and respondent no.6 was directed to
immediately return minor child and his passport to the petitioner. The family court of the State of
New York also issued Child-abuse Non- bailable warrant against respondent No.6. It was in this
backdrop that the Supreme court, directed respondent No.6 to take the child to United States of
America as per the consent order dated 18.6.2007 passed by the family court of the State of New
York till such time any further order was passed by that Court. Certain directions with respect to
travelling expenses of respondent No.6 and the child as well as for making arrangements for
residence of respondent No.6 in the USA were also given by the court. In the course of judgment,
Supreme Court, inter alia, observed as under:

"29. While dealing with a case of custody of a child removed by a parent from one
country to another in contravention to the orders of the court where the parties had
set up their matrimonial home, the court in the country to which child has been
removed must first consider the question whether the court could conduct an
elaborate enquiry on the question of custody or by dealing with the matter summarily
order a parent to return custody of the child to the country from which the child was
removed and all aspects relating to child's welfare be investigated in a court in his
own country. Should the court take a view that an elaborate enquiry is necessary,
obviously the court is bound to consider the welfare and happiness of the child as the
paramount consideration and go into all relevant aspects of welfare of child including

Indian Kanoon - http://indiankanoon.org/doc/194224681/ 13

 Surjeet Singh vs State & Another on 27 April, 2012

stability and security, loving and understanding care and guidance and full
development of the child's character, personality and talents. While doing so, the
order of a foreign court as to his custody may be given due weight; the weight and
persuasive effect of a foreign judgment must depend on the circumstances of each
case."

The Supreme Court took note of the fact that keeping in view the welfare and happiness of the child
and in his best interests, the parties had obtained a series of consent orders concerning his
custody/parenting rights, maintenance etc from the competent court of jurisdiction in USA. The
court also found that there was nothing on record which may even remotely suggest that it would be
harmful to the child to be returned to USA. However, in the present case, the children have not been
brought to India in violation of any order passed by a court at New Zealand. The children came to
India with their parents and with the consent of both of them. No order with respect to the custody
of the children was passed by the Court at New Zealand with the consent of the parties. In the case
of V. Ravi Chandran (supra), there was nothing to even remotely suggest that it would be harmful to
the child to be returned to USA. On the other hand, there is ample material before this Court which
clearly suggests that it would be harmful not only for respondent No.2 but also for the children if
they are sent to New Zealand. The facts of this case are, therefore, clearly distinguishable from the
facts in V. Ravi Chandran (supra).

In Shilpa Aggarwal (supra), following some disagreement between the parties, the appellant before
the Supreme Court came to India on 12.9.2008, but returned on 14.10.2008. The appellant was
supposed to join him in his family at New Delhi at his arrival in to India but she chose not to do so.
Both of them were supposed to leave for U.K. 9.11.2008, but, the appellant got their tickets cancelled
on 7.11.2008 and remained behind in India. The respondent husband thereupon started
proceedings before the High Court of Justice, Family Division, U.K. on 25.11.2008, for an order that
the minor child be made ward of the court and for a direction to the appellant to return the minor
child to the jurisdiction of the said court. On the application of the husband, the High Court of
Justice, Family Division, U.K. vide order 26.11.2008 directed the appellant to return the minor child
to the jurisdiction of the court. A further direction was given for the passport and travelling
documents of the minor child to be handed over to the Solicitor of respondent No.1. This Court
directed the appellant before the Supreme Court to take the child to England and join proceedings
failing which the child was to be handed over to the husband to be taken of England as a measure of
interim custody, and thereafter, it was for the courts of England and Wales to determine which
parent would be best suited to have the custody of child. Finding no fault with the order of this
Court, the appeal filed by the wife was dismissed by the Supreme Court. It would be pertinent to
take note of the fact that in the case of Shilpa Aggarwal (supra), there was nothing before the court
to even suggest that the husband was likely to cause physical or mental cruelty to his wife, and
therefore, it would be in the interest of the child to send him back to U.K. On the other hand, in the
case before this Court, the conduct of the petitioner as reflected in the tape- recorded conversation
filed by respondent No.2 in the Court, clearly indicates that it would not be in the interest of the
minor daughters of the parties to sent them to New Zealand, with or without respondent No.2
accompanying them. If these girls are sent to New Zealand, there is all likelihood of respondent No.2
being tortured mentally and/or physically by the petitioner and such torture being witnessed by the

Indian Kanoon - http://indiankanoon.org/doc/194224681/ 14

 Surjeet Singh vs State & Another on 27 April, 2012

children which, in turn, is bound to have an adverse impact on them thereby amounting to their
psychological abuse in terms of the laws applicable in New Zealand.

12. For the reasons stated hereinabove, we are of the view that it is not a fit case for exercising our
extraordinary jurisdiction under Article 226 of the Constitution by directing respondent No.2 to
either return to New Zealand along with children or to give custody of the children to the petitioner.
It would, however, be open to the petitioner, if he so desires, to apply to the appropriate court in
India seeking custody of the children.

However, in order to ensure that the petitioner is not deprived of his legitimate right to be in the
company of his children, whenever he visits India, we direct that he will be entitled to visit after
advance intimation, the house where the respondent No.2 is residing at that time with the children
and be in the company of the children for two hours during day time, on every Saturday, Sunday and
school holiday. While visiting the house of respondent No.2 in India, the petitioner will be alone and
will not misbehave with her or any member of her family in any manner and will conduct himself in
a dignified and appropriate manner. If the petitioner fails to do so, it would be open to respondent
No.2 to refuse entry to the petitioner in her house. If the petitioner while at the house of respondent
No.2 in India, conducts himself appropriately, he will be entitled to a peaceful company of his
children uninterrupted by respondent No.2 or any member of her family in terms of this order.

The writ petition stands disposed of accordingly. In the facts and circumstances of the case, there
shall be no order as to costs.

V.K.JAIN, J BADAR DURREZ AHMED, J APRIL 27, 2012 'raj'

Indian Kanoon - http://indiankanoon.org/doc/194224681/ 15