ZORAWAR SINGH ATWAL Vs. RACHNA

JUDGEMENT

(1.) THIS is a writ petition under Article 226 of the Constitution of India read with Section 100 Cr.P.C. seeking the custody of Kumari Natalia (daughter of the petitioner), to be given to the petitioner from the possession of respondents.

(2.) IN the petition it was alleged that the petitioner and his wife Smt. Rachna (respondent No. 1) were citizens of India by birth and that petitioner and respondent No. 1, Smt. Rachna had a daughter namely Kumari Natalia, who was also citizen of India by birth. It was alleged that respondents 2 to 4 are close relatives of respondent No. 1 Smt. Rachna. It was alleged that respondent No. 4 Rajiv Monga and respondent No. 3 Smt. Surjit Kaur hatched a conspiracy and they put pressure on respondent No. 1 Smt. Rachna (wife of the petitioner) and instigated her against the petitioner and persuaded her to get settled in USA at their expense. It was alleged that respondent No. 3 Surjit Kaur called petitioner's wife Smt. Rachna on 30.10.1999 to visit her home in Gurgaon for two days and the petitioner, thinking that it was a courtesy call by Smt. Surjit Kaur to call her daughter Smt. Rachna, allowed her to go to her house, whereupon Smt. Rachna went to house of Smt. Surjit Kaur alongwith petitioner's minor daughter namely Kumari Natalia on 31.10.1999. It was alleged that after one week when the petitioner contacted Smt. Rachna to return to his house, Smt. Rachna wanted some more time to stay with her mother and as the time passed, the petitioner realised that Smt. Surjit Kaur, respondent No. 3 had called her daughter Smt. Rachna under a conspiracy to withdraw her from the society of the petitioner and to blackmail the petitioner and his parents. It was alleged that the petitioner went to their house to see Smt. Rachna and Kumari Natalia, minor, many a time but he was not allowed to meet them. Thereupon, the petitioner came to know that Smt. Rachna and Kumari Natalia were being confined by respondent No. 2 Jagjit Singh Monga, respondent No. 3 Smt. Surjit Kaur in their custody against their wishes and during this period both these respondents had hatched conspiracy to take away Smt. Rachna and Kumari Natalia, minor to USA. It was alleged that on 20.5.2000, Smt. Rachna contacted the petitioner and expressed her desire to join the petitioner and she also told him that she was being detained and illegally confined by her parents against her wishes alongwith her child Kumari Natalia. It was also alleged that on one occasion Smt. Rachna called the petitioner on phone and told the petitioner that she was badly in need of Rs. 20,000/- whereupon the petitioner sent the money to Smt. Rachna through a messenger. It was alleged that the petitioner also received a call from the school with regard to the outstanding dues of fees for the months of July, August and September in respect of Kumari Natalia and the petitioner also arranged and paid the said fees. It was alleged that Smt. Rachna called upon the petitioner and asked him that she would be going to a hill station for a week in the month of May 2000 and would be returning to Gurgaon after a week and being assured about the safety of his wife and daughter the petitioner went for a business tour and after one month when the petitioner returned to Gurgaon and tried to find out Smt. Rachna and Kumari Natalia, the petitioner came to know that Jagjit Singh Monga and Smt. Surjit Kaur had influenced Smt. Rachna to go abroad and in that design Smt. Rachna and Kumari Natalia flew out of the country without the consent and knowledge of the petitioner, on 31.5.2000. It was alleged that before leaving for America, Jagjit Singh Monga and Smt. Surjit Kaur had demanded a sum of Rs. 15 lacs from the petitioner for returning the custody of Kumari Natalia to the petitioner failing which they had threatened that they would take the daughter of the petitioner out of country. It was alleged that to meet the said threat, Smt. Rachna and Kumari Natalia were taken away on 31.5.2000 to USA where Kumari Natalia was being kept in hiding for meeting the demand of Rs. 15 lacs. It was alleged that in this manner Jagjit Singh Monga, Smt. Surjit Kaur and Smt. Rachna had abducted Kumari Natalia without the consent to petitioner, who is natural guardian of Kumari Natalia. It was alleged that grievance of the petitioner was the his daughter was kept in illegal custody of Smt. Rachna and her parents namely Jagjit Singh Monga and Smt. Surjit Kaur and also by her brother Rajiv Monga. It was alleged that the petitioner was natural guardian of his minor daughter, Kumari Natalia, who is aged 3-1/2 years and she has been taken away illegally from the custody of the petitioner without his consent. It was alleged that it was a fit case where necessary action be taken for securing the liberty and release of the minor daughter of the petitioner from unlawful detention of respondents and that too in a foreign country. It was accordingly prayed that a writ of habeas corpus be issued against the respondents to produce Kumari Natalia, minor daughter of the petitioner in the court.

(3.) LEARNED counsel fro the petitioner has submitted before me that the petitioner was entitled to the custody of his minor daughter Kumari Natalia and that it was a fit case for the issuance of writ of habeas corpus directing the respondents to produce Kumari Natalia in the court. Reliance was placed on the law laid down by their Lordships of the Supreme Court, in the case reported as Mrs. Elizabeth Dinshaw v. Arvind M. Dinshaw and another, AIR 1987 SC 3; Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and another, AIR 1984 SC 1224 and Sarita Sharma v. Sushil Sharma, AIR 2000 SC 1019 : 2000(2) RCR(Crl.) 194 (SC).