CRM not M-1713 o”

1. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM not M-1713 of 2013 Date of Decision:- 19.2.2013 Sandeep Singh & Ors. .....Petitioners Versus Manmeet Kaur Randhawa .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Argued by:- Dr.Anmol Rattan Sidhu, Senior Advocate with Mr.Karan Vir Nanda, Advocate for the petitioners. Mr.Kanwaljit Singh, Senior Advocate with Mr.Sumit Kumar, Advocate for the respondent. MEHINDER SINGH SULLAR, J.(Oral) The matrix of the facts & material, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant petition and emanating from the record, is that the marriage of complainant-respondent Manmeet Kaur Randhawa, a Canadian citizen, (for brevity “the complainant”.) was solemnized on 27.5.2006 as per Sikh rites & ceremonies by way of Anand Karaj, with Sandeep Singh Mann (petitioner No.1) son of Surinder Singh Mann and Harbhajan Kaur (petitioner Nos.2 & 3) at Gurudwara in Toronto, Canada. The parents of complainant were stated to have spent huge amount, on the marriage, reception party at National Banquet Hall, Toronto, Canada, other ceremonies and on account of dowry articles. After solemnization of the marriage, they resided together and cohabited as husband & wife. CRM not M-1713 o”

2. A female child, namely, Gurnoor Kaur Mann was born out of the said wedlock on 6.1.2010 at Ontario, Canada. Unfortunately, she was suffering from some Orthopedic problem since her birth. She was getting treatment from Dr.John H.Wedge in Sick Kids Hospital, University at Toronto for “Hip Dysplasia.”

2. The complainant claimed that her husband Sandeep Singh was twice convicted by the Canadian Court. His application for permanent resident status under the spouse of common law partner in Canada was rejected by the Canadian Authority on the following ground as described in para No.36(2)(a) of the Immigration and Refuges Protection Act:- “A foreign national is inadmissible on grounds of criminality for having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence.”

3. Faced with the situation, Sandeep Singh Mann (petitioner No.1) was deported from Canada to India. He asked the complainant to accompany him to India to enable her to challenge his deportation before the appropriate authority in Canada. Consequently, they started residing in Manimajra, Chandigarh along with petitioner Nos.2 and 3. It was claimed that during the period of her stay, the petitioners have started harassing and beating her. She was even tied with the rope, deprived from food and compelled her to accept their illegal demand of dowry and that baby Gurnoor Kaur Mann will stay in India with them. Since no relative of complainant was available to narrate the tale of her woe, so, she was forced to leave India on 22.8.2011 and her daughter of about two years CRM not M-1713 o”

3. was forcibly kept by them. Consequently, she moved a petition for return of her daughter and Superior Court of Justice, Brampton, Canada directed her husband Sandeep Singh Mann (petitioner No.1) to hand over baby Gurnoor Kaur Mann to her along with all the original documents, by virtue of order dated 8.6.2012 (Annexure R1).

4. The case of the complainant further proceeds that she along with her father came to India on 17.6.2012 along with the order of Superior Court of Justice, Brampton and requested the petitioners to hand over the child to her along with the original travel documents, but in vain. Instead of handing over the custody of child to the complainant, the petitioner-husband started abusing her in a drunken condition. Even she was not allowed to meet her minot daughter.

5. Leveling a variety of allegations and narrating the sequence of events in detail in the petition, in all, according to the complainant that she and her daughter Gurnoor Kaur Mann are Canadian citizens. Gurnoor Kaur Mann is minot child of 2½ years of age, suffering from hip Dysplasia and was getting treatment from Dr.John H.Wedge in Sick Kids Hospital, University at Toronto, but the petitioners have treated her with cruelty. The Canadian Government was stated to have been paying 450 Dollars per month for the treatment of minot child. The petitioners did not hand over the custody of her daughter despite order dated 8.6.2012 of Superior Court of Justice Brampton, Canada. A canadian passport was issued to Gurnoor Kaur Mann and her stay in India was only valid till 15.6.2012. Thereafter, her stay in India is illegal. In the background of these allegations, the respondent-complainant filed the petition CRM not M-1713 o”

4. (Annexure P9) against the petitioners under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter to be referred as “the Act”.). She has also prayed for interim custody of her minot child Gurnoor Kaur Mann.

6. Sequelly, the petitioners have refuted the prayer of complainant for interim custody of her minot child and filed the reply. Although they have admitted the factum of marriage, birth of minot child at Canada and her disease, however, it was submitted that she is getting the medical treatment from PGI Chandigarh and there are signs of improvement in her condition. It was alleged that if the child is allowed to go with the complainant, then, there will be a gap in medical treatment, which will not be in her interest. It will not be out of place to mention here that the petitioners have stoutly denied all other allegations contained in the petition and prayed for its dismissal.

7. The trial Court declined the prayer of the complainant for interim custody of the minor, by means of order dated 9.10.2012 (Annexure P10).

8. Aggrieved thereby, the appeal (Annexure P11) filed by the complainant was accepted and petitioners were directed to hand over the interim custody of minot child Gurnoor Kaur Mann to her by the appellate Court, by way of impugned judgment dated 4.1.2013 (Annexrue P12).

9. The petitioners still did not feel satisfied and preferred the present petition to quash the impugned order (Annexure P12), invoking the provisions of section 482 Cr.PC. That is how I am seized of the CRM not M-1713 o”

5. matter.

10. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant petition in this context.

11. Ex facie the argument of learned senior counsel for the petitioners that since the minot child is getting adequate treatment from PGI Chandigarh and Saket Orthopedic Hospital, Panchkula and it would be in her interest & welfare if she remains in the custody of petitioners, but the appellate Court committed a legal mistake to direct them to hand over her custody to the complainant, is not only devoid of merit but misplaced as well.

12. At the very outset, it is not a matter of dispute that the law with regard to interim custody of minot child is not well settled. The paramount consideration of the court in determining the question as to who should be given custody of a minot child, is the “welfare of the child”. and not the emotions, wishful thinking and rights of the parents under a statute for the time being in force. not only that, the court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings, but at the same time, her physical comforts, the moral and ethical values have also to be kept in focus while considering such issue of interim custody of minot female child.

13. Equally, it is well settled that absolute right of parents over the destinies and the lives of their children, in the modern changed social CRM not M-1713 o”

6. conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of paramount consideration of welfare of the minot children and the rights of their respective parents over them.

14. Such thus being the legal position and material on record, not the short & significant question, though important, that arises for determination in this petition is, as to whether the welfare of the child is with the petitioners at this stage or not?.

15. Having regard to the rival contentions of learned counsel for parties, to me, the answer must obviously be in the negative in this respect.

16. As is evident from the record that the complainant has filed the petition (Annexure P9) u/s 12 of the Act. Her request for interim custody was declined by the trial Magistrate, vide order (Annexure P10). The main grounds, which appear to have been weighed with the trial Magistrate to negate the plea of interim custody of complainant were that (i) as per section 8 of the Hindu Minority and Guardian Act, 1956, in case of an unmarried girl, father is the natural guardian and after him, is the mother, (ii) she is getting treatment from PGI Chandigarh, (iii) if the custody of child is handed over to the complainant, she will take her to Toronto, Canada for treatment and (iv) it would not be just and proper to hand over her custody to the complainant. Here, to my mind, the trial Magistrate committed a legal mistake in this direction. CRM not M-1713 o”

7. 17. What cannot possibly be disputed here is that the date of birth of female child is 6.1.2010. She was born in Canada. The complainant and minot child are Canadian citizens. As luck would have been the child was suffering from disease of Hip Dysplasia since her birth. She was getting best treatment in Canada in the manner depicted here-in-above. The Canadian Government was providing 450 Dollars per month for her treatment.

18. On the contrary, the petitioner-husband was deported by the Canadian Government to India on account of his conviction twice. His application for permanent resident status under the spouse of common law partner in Canada was rejected by the Canadian Authority on the ground of his criminality for having been convicted in Canada. In that eventuality, it will not be prudent to keep the child in the custody of a convicted person. Moreover, the female child is 2½/3 years of age and she should live with the mother. That means, prima facie, it is proved on record that besides other pointed relatable factors of welfare, the minot was getting best treatment from Dr.John H.Wedge in Sick Kids Hospital, University of Toronto, Canada. The mere fact that during her compelled/forced stay in India, she was getting some treatment from PGI Chandigarh, vide OPD slip (Annexure P4) and getting physiotherapy from Saket Artificial Limbs Centre & Orthopedic Hospital, by virtue of prescription slips (Annexures P5 & P6 colly), ipso facto, is not at all sufficient ground, muchless cogent, to ignore the over-all indicated paramount considerations of welfare of child and her best treatment in Canada, as contrary urged on behalf of petitioners. CRM not M-1713 o”

8. 19. There is yet another aspect of the matter, which can be viewed entirely from a different angle. In the wake of petition of complainant and taking into consideration the paramount consideration of welfare of child, the Superior Court of Justice, Hurontario Street, Brampton Ontario has passed the following directions contained in the order dated 8.6.2012 (Annexure R1), which, in substance, is as under:- 1. A Temporary Order for the Applicant mother Manmeet Kaur Randhawa to have custody of the child of the marriage, namely known as Gurnoor Kaur Mann, born January 6, 2010.

2. An order for the Applicant mother to travel to India and have the child Gurnoor Kaur Mann returned to her care and control forthwith.

3. An order that all travel documents in the name of Gurnoor Kaur Mann shall be returned to the Applicant mother. The mother is permitted to travel with the child, to ensure her safe return to Canada.

4. The Respondent father shall comply with this order and return the child to Applicant mother for travel back to Canada forthwith.

20. Therefore, to me, the trial Magistrate has slipped into deep legal error in ignoring the pointed relatable factors of welfare of minot and her treatment, with impunity in this relevant connection. Moreover, on the appeal of complainant, the appellate Court has rectified the mistake committed by the trial Magistrate and negated the plea of petitioners, by means of impugned judgment (Annexure P12), the operative part of which is as under (para 16):- “In my opinion that learned trial Court has not properly appreciated all the aspects of the matter. The minot child is a girl child. She is of quite tender age. In such tender age the minot girl child requires the love, care and affection of her mother; and even the law recognizes it. Moreover, this fact has also come that the child is suffering from health CRM not M-1713 o”

9. problem since her birth and she is getting treatment in one of the best Hospital at Canada. The medical record which the petitioner has placed on record regarding the treatment of the child which she is getting at Canada, reveals that since birth she is getting treatment there. Further, the record reveals that as the child is here in India that has hampered her treatment there; and learned counsel for the appellant raised point that the child being a Canadian citizen, the Canadian Government is making the payment of $ 450 per month for her treatment and entire expenditure was being borne by the Canadian Government. She was under the treatment of Dr.John H.Wedge of Sick Kids, a Hospital for sick children, University of Toronto. I also find merit in this argument that the respondent had shown the child just in the PGI in OPD for 2-3 occasions and nothing has been done by respondent No.1 and on one occasion she has been shown at Saket Orthopedic Hospital. Except for the aforesaid examination, there is no other treatment. Whereas the minot child was getting best treatment at Hospital for sick children, University of Toronto, Canada. Moreover, she is getting treatment there since her birth.”

21. Meaning thereby, if the entire material, mitigating circumstances, paramount considerations of welfare of female child and totality of other facts & circumstances, as discussed here-in-above are put together, then, to my mind, the conclusion is inescapable and irresistible that it would be in the interest and justice would be sub-served if the custody of minot female child is handed over to the complainant. If the interim custody is not granted to her, in that eventuality, it will inculcate and perpetuate injustice to the minot female child of Canadian citizen.

22. Likewise, the learned counsel for petitioners did not point out any material/ground, muchless cogent, so as to warrant any interference in the impugned order (Annexure P12). Therefore, the appellate Court has examined the matter in the right perspective and CRM not M-1713 o”

10. recorded the cogent grounds in this respect. Such impugned order, containing valid reasons, cannot possibly be interfered with by this Court, in exercise of jurisdiction under Section 482 Cr.PC, unless and until, the same is illegal, perverse and without jurisdiction. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for petitioners, so, the impugned order deserves to be and is hereby maintained in the obtaining circumstances of the case.

23. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

24. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of hearing of main petition u/s 12 of the Act, as there is no merit, therefore, the instant petition is hereby dismissed as such.

25. Needless to mention that nothing observed, here-in-above, would reflect, on merits of the main case, in any manner, during the course of trial, as the same has been so recorded for a limited purpose of deciding the present petition of interim custody. 19.2.2013 (Mehinder Singh Sullar) AS Judge Whether to be referred to reporter?.Yes/No