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2013 DIGILAW 242 (UTT)

Rajbinder Kaur Dhillon v. State of Uttarakhand

2013-05-06

ALOK SINGH

body2013
Judgment Alok Singh, J. 1. Petitioner has invoked Article 226 of the Constitution of India for issuance of a writ of Habeas Corpus to secure the custody of Karamveer Kaur (respondent no. 6). 2. Brief facts of the present case, inter alia, are that petitioner Rajbinder Singh Dhillon, is a legally wedded wife of Jagbir Singh Dhillon. Respondent no. 4 Sarjeet Singh Dhillon is real brother of Jagbir Singh Dhillon while respondent no. 5 Kulvinder Kaur is wife of respondent no. 4. Respondent no. 6 is a minor daughter, aged about 4-year, of respondents no. 4 and 5, who was given in the custody of petitioner as well as her husband Jagbir Singh Dhillon along with authorization letter dated 02.03.2009, authorizing adoption by petitioner and her husband Jagbir Singh Dhillon. 3. Respondent nos. 4 and 5 are residents of India. It is alleged that after handing over authorization letter dated 02.03.2009, respondent nos. 4 and 5 returned to India while respondent no. 6 remained in custody of petitioner and her husband Jagbir Singh Dhillon. Petitioner and her husband Jagbir Singh Dhillon applied for residence order before Leicester County Court. It is alleged that Leicester County Court vide order dated 15.10.2009 granted residence order pertaining to respondent no. 6. 4. It is further alleged that marriage of petitioner with Jagbir Singh Dhillon suffered irreparable breakdown consequently, petitioner moved out of her matrimonial home with respondent no. 6 in November, 2010. Jagbir Singh Dhillon moved an application before the Court for sole residence and contract order regarding minor respondent no. 6. Petitioner applied for adoption order pertaining to minor respondent no. 6, meanwhile, it is alleged that respondent no. 6 minor was abducted and was brought back to India by Jagbir Singh Dhillon in collusion with respondent no.4 and 5 biological parents of respondent no. 6. It is further alleged that due to the fact that minor respondent no. 6 was brought back to India by Jagbir Singh Dhillon, former husband of petitioner, in collusion with respondent nos. 4 and 5, therefore, adoption proceedings could not be finalized. It is further alleged that minor respondent no. 6 was brought back to India by kidnapping her from the lawful custody of petitioner in gross violation of orders passed by UK Court authorizing the residence order of respondent no. 6 with the petitioner. Petitioner is seeking custody of respondent no. 4 and 5, therefore, adoption proceedings could not be finalized. It is further alleged that minor respondent no. 6 was brought back to India by kidnapping her from the lawful custody of petitioner in gross violation of orders passed by UK Court authorizing the residence order of respondent no. 6 with the petitioner. Petitioner is seeking custody of respondent no. 6 on the ground that she was kidnapped and brought to India in violation of UK’s Court order authorizing residence of respondent no. 6 with the petitioner. 5. Undisputedly, respondent nos. 4 and 5 are the biological parents of minor respondent no. 6. Undisputedly, till date adoption is not finalized pertaining to minor respondent no. 6 in favour of petitioner. 6. It is settled position of law that while considering the question of custody of a minor child, paramount consideration for the Court, is welfare of the minor child. In the considered opinion of this Court, since minor child respondent no. 6 is in lawful custody of her biological parents i.e. respondent nos. 4 and 5 and till date, petitioner could not get adoption order pertaining to respondent no. 6, therefore, mere assurance given by respondent nos. 4 and 5 to the effect that minor respondent no. 6 would be given in adoption to petitioner and her former husband Jagbir Singh Dhillon, does not make the petitioner entitled for the lawful custody of minor respondent no. 6. 7. It is true that minor respondent no. 6 remained in custody of the petitioner as well as her former husband Jagbir Singh Dhillon, who happened to be real uncle of minor respondent no. 6, however, facts remains that now, petitioner has separated from her husband Jagbir Singh Dhillon, real uncle of minor respondent no. 6, therefore, in the considered opinion of this Court welfare of the child with petitioner seems to be totally unjustified. 8. The argument that since minor was brought to India in violation of various orders passed by UK’s Court, therefore, she should be allowed to be taken to UK cannot be accepted for the simple reason that minor child is an Indian citizen, who is residing in India, with her biological parents. Violation of UK court’s orders does not mean that this Court will violate the Indian law, which permits the guardianship and custody of a minor child in normal circumstances with her biological parents. Violation of UK court’s orders does not mean that this Court will violate the Indian law, which permits the guardianship and custody of a minor child in normal circumstances with her biological parents. It is nowhere stated that biological parents of minor are acting against the interest of minor. 9. One more aspect of the matter is that suppose, tomorrow, adoption order is not passed in favour of the petitioner pertaining to respondent no. 6 in view of the fact that respondent nos. 4 and 5, biological parents of minor respondent no. 6, are now not willing to give respondent no. 6 in adoption in favour of the petitioner, what will happen to the minor respondent no. 6. This Court, while considering the paramount welfare of the child, cannot make child subject matter of the litigation. Child should not be separated in the normal course from her biological parents. 10. Learned counsel for the petitioner has placed reliance on the judgments of Hon’ble Apex Court in the case of Mrs. Elizabeth Dinshaw Vs. Arvand M Dinshaw reported in 1987 (1) SCC 42 and V. Ravi Chandran (Dr.) Vs. Union of India reported in 2010 (1) SCC 174 . In both the cases relied by the petitioner, dispute was between the spouses pertaining to the custody of child, which was allegedly brought to India by one of the spouses in violation of orders passed by the courts of other countries. However, in the present case, as observed hereinbefore, dispute regarding the custody of a minor child is not in between the spouses, rather, it is a dispute between biological parents, on the one hand and a person, with whom a promise was made to give a child in adoption by the biological parents, however, adoption could not be finalized. Therefore, in the humble opinion of this Court, judgments relied by learned counsel for the petitioner has no application in the present case. 11. Consequently, petition fails and is dismissed. No order as to cost.