WRIT PETITION 162 of 2010 on 15 October 2006

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Case No. : Crl. W. P. No. 162 of 2010Date of Decision : September 20, 2011

Amardeep Pal Singh Mahal....PetitionerVs.State of Punjab and others....Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL

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Present :Mr. Pritpal Nijjar, Advocatefor the petitioner.

Mr. Ranbir Singh Rawat, AAG, Punjab

for respondents no.1 to 3.

Mr. Jaideep Verma, Advocatefor respondents no.4 to 6.

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L. N. MITTAL, J. (Oral) :

In matrimonial dispute between husband and wife, mostlyarising out of false ego or non-adjustment, it is the child who bears theburnt. The present Habeas Corpus writ petition is stark illustration of thisscenario.

Marriage of respondent no.4 Ramanjit Kaur Mahal wassolemnized with petitioner Amardeep Pal Singh Mahal on 15.10.2006 in India. The petitioner is resident of United Kingdom (UK). Respondentno.4 went to UK in March 2007. Out of this wedlock, Gurleen Kaur Mahal– respondent no.6 was born on 12.01.2009 in UK.

Respondent no.4, along with respondent no.6, came from UK toIndia at the end of April 2009, probably on 29.04.2009, with return ticketsfor UK for 23.05.2009. However, respondent no.4 did not return to UK andis still in India along with respondent no.6.

The petitioner filed custody and guardianship petition under theChildren Act, 1989 of UK for a residence, contact or other Section 8 orderin UK Court. The said Court passed orders dated 19.08.2009, 11.09.2009,16.10.2009 and 14.12.2009 (Annexure P-5 Colly.) inter alia makingrespondent no.6 Gurleen Kaur Mahal a Ward of the said Court until furtherorder and directing the defendant (respondent no.4 herein) to return GurleenKaur Mahal forthwith to the jurisdiction of England and Wales. Variousother directions were also given.

Petitioner has filed the instant Habeas Corpus writ petitionunder Article 226 of the Constitution of India read with Section 482 of theCode of Criminal Procedure seeking writ/order/direction for recovery ofrespondent no.6 from the custody of respondent no.4 and her father SwarnSingh Gill – respondent no.5 and for production of respondent no.6 beforethis Court and for direction to respondent no.4 to remain present in FamilyCourt in UK for custody proceedings of respondent no.6 who be allowed to travel to UK in the custody of the petitioner.

Factual position has not been controverted by respondent no.4in her reply. However, respondent no.4 has otherwise opposed the writpetition on various grounds. I have heard learned counsel for the parties and perused thecase file.

Before proceeding to deal with the contentions raised bycounsel for the parties, it has to be noticed that during pendency of this writpetition, on 06.10.2010, the petitioner offered to bear all travelling expensesof all the respondents for compliance of the order passed by Family Court inUK. In view of said offer, this Court, vide order dated 06.10.2010, directedthe petitioner to deposit Rs.4,00,000/- with the Registry of this Court up to09.11.2010 to establish bona fide of the petitioner to resume co-habitationwith respondent no.4 and to facilitate compliance with the order passed byFamily Court in UK. The case was adjourned to 16.11.2010. On16.11.2010, counsel for respondents no.4 to 6 submitted that if thepetitioner was ready to bear the expenses, respondent no.4 was ready to goto UK to comply with directions of the Family Court. On request of counselfor the petitioner, the case was adjourned to 15.12.1010 (taken up on20.12.2010) and then adjourned to 15.03.2011. On 15.03.2011, counsel forthe petitioner stated that in lieu of deposit of Rs.4,00,000/-, the petitionerwas ready to sponsor the visit of respondents no.4 and 6 (to UK). The case

was adjourned to different dates. Again on 18.05.2011, counsel forrespondents no.4 to 6 stated that respondents no.4 and 6 were ready toaccompany the petitioner (to UK) if he arranged tickets, food, residence etc.for them. Counsel for the petitioner sought adjournment to file affidavit inthis regard. Case was adjourned to 15.07.2011 and then to 17.08.2011.Affidavit of petitioner was filed on 17.08.2011 offering to bear expenditureof respondents no.4 and 6 for being taken to UK and also to maintain themin the matrimonial home there. However, in view of past conduct of thepetitioner, the offer made by the petitioner in the affidavit could not betaken at face value. In view of this observation by this Court, counsel forthe petitioner undertook to deposit Rs.4,00,000/- with the Registry of thisCourt within two weeks to depict bona fide of the petitioner regarding hisoffer made in his affidavit. The petitioner was accordingly directed todeposit the said amount with the Registry of this Court. However, theamount has not been deposited.

Counsel for the petitioner, relying on judgments of Hon'ble Supreme Court in the cases of Shilpa Aggarwal vs. Aviral Mittal andanother reported as JT 2009 (15) SC 188 (hereinafter called case ofShilpa Aggarwal – I) and V. Ravi Chandran vs. Union of India andothers reported as (2010) 1 Supreme Court Cases 174 contended that inview of orders passed by Family Court in UK, respondent no.4 is obliged totake respondent no.6 to UK and to submit to the jurisdiction of Family Court in UK.

Counsel for respondents no.4 to 6 submitted that respondentsno.4 to 6 have already submitted that respondents no.4 and 6 are ready to goto UK provided the petitioner agreed to bear the expenses of their travel,food, shelter etc. in UK, but the petitioner, by seeking adjournments and bynot depositing the amount of Rs.4,00,000/- with the Registry of this Courtand by not complying with the orders dated 06.10.2010 and 17.08.2011, hasdepicted that he is not ready to bear the expenses of respondents no.4 and 6.Counsel for the respondents has cited judgment of Hon'ble Supreme Courtin the case of Shilpa Aggarwal vs. Aviral Mittal and another reportedas 2010 (3) Civil Court Cases 320 (S.C.)(hereinafter called case ofShilpa Aggarwal – II).

I have carefully considered the rival contentions. Conduct ofthe petitioner is not bona fide. As observed herein before, the petitioneroffered to bear travel expenses of respondents no.4 and 6. To establish hisbona fide, he was directed vide order dated 06.10.2010 to depositRs.4,00,000/- with the Registry of this Court, but he did not do so. Thepetitioner then filed affidavit on 17.08.2011 offering to bear the expenses.His counsel also undertook to deposit Rs.4,00,000/- with the Registry of thisCourt, but again the amount has not been deposited. Thus, it is manifestthat the petitioner has taken this Court for a ride and has been playing hideand seek with the Court. This conduct of the petitioner has to be condemned in strongest terms. It is also manifest from this conduct thatpetitioner's offer in the affidavit filed on 17.08.2011 and also offer bycounsel for the petitioner, as noticed in earlier orders, was not bona fide andwas made just to mislead the Court and to obtain favourable orders. Forthis conduct, the petitioner has to be subjected to heavy cost.

As regards necessary orders to be passed in the instant writpetition, in view of judgments in the cases of Shilpa Aggarwal – I)(supra) and V. Ravi Chandran(supra), cited by counsel for thepetitioner himself and also in view of judgment in the case of ShilpaAggarwal – II)(supra), the petitioner has to bear all the expenses ofrespondents no.4 and 6 for their travel to UK, food, stay, legal proceedingsin Family Court in UK etc. Prima facie, it appears that the petitioner is notready to do so. Consequently, conditional order has to be passed in theinstant writ petition.

Accordingly, the writ petition is disposed of with the followingdirections :-

Conclusion

1. The petitioner shall, within one month fromtoday, deposit Rs.25,000/- as cost with the Registry ofthis Court for his above mentioned conduct. The otherdirections shall be subject to compliance with thisdirection as condition precedent.

2. The petitioner shall bear all the travel expenses of respondents no.4 and 6 from India to UKand if necessary, back to India. For this purpose, thepetitioner shall deposit Rs.4,00,000/- with the Registryof this Court.

3. Marriage between petitioner and

respondent no.4 has since been dissolved by ex-partedecree of divorce vide judgment and decree dated01.08.2011 passed by learned Additional District Judge,Ludhiana. Consequently, petitioner has to makeseparate arrangement for boarding and lodging ofrespondents no.4 and 6 in UK.

4. The petitioner shall also bear expenses ofrespondent no.4 to defend the proceedings in FamilyCourt in UK.

5. The petitioner shall also provide 300pounds per month towards travel expenses forrespondents no.4 and 6 during their stay in UK. Childbenefit, which the petitioner has been receiving onaccount of expenses of the minor child – respondentno.6, shall also be handed over to respondent no.4 bythe petitioner, if not legally prohibited from doing so.

6. The petitioner shall also provide initial amount of 200 pounds for medical expenses that may beincurred by respondents no.4 and 6.

7. The petitioner shall pay 1200 pounds per month towards food and daily inidental expenses ofrespondents no.4 and 6.

8. The petitioner shall also provide for healthinsurance and life insurance cover to respondents no.4and 6 on their arrival in UK.

9. The petitioner shall pay 1600 pounds

towards legal expenses to respondent no.4 forcontesting the custody and guardianship case in FamilyCourt in UK.

10. The petitioner shall also provide for laptopand printer for use of respondent no.4.

If respondent no.4 has any Bank Accountin UK, then she shall intimate the same to counsel forthe petitioner and in that event, the petitioner maydeposit the requisite amount in her said Account.

The above directions have been given, keeping in view the judgment of Hon'ble Supreme Court in the case of Shilpa Aggarwal – II(supra).

The petitioner shall furnish proof of compliance with aforesaid directions, in the Registry of this Court with copy to respondent no.4 or hercounsel.

On compliance with the aforesaid directions by the petitioner,respondent no.4 shall, within one month of receiving information ofcompliance of all the directions by the petitioner, proceed to UK along withrespondent no.6, with prior intimation to the petitioner.

If the above directions are not complied with within fourmonths, the writ petition shall be deemed to have been dismissed. Even ifthe petitioner does not comply with the other directions, directionmentioned at Sr. No.1 regarding deposit of Rs.25,000/- as cost with theRegistry of this Court has to be complied with and the said amount has to bedeposited within one month from today, failing which the case shall belisted for this purpose.

September 20, 2011monika

( L. N. MITTAL )JUDGE