KULWINDER DHALIWAL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner has invoked the jurisdiction of this court under Article 226 of the Constitution of India seeking inter-alia a writ in the nature of habeas corpus or any other writ or direction directing respondents Nos. 1 to 3 to search, recover and produce the detenu namely Harmanjot Singh, minor aged 7 years, and Loveleen Kaur minor, aged 5 years, who are Canadian Nationals and who are in the illegal custody of respondents Nos. 4 to 6 i.e. the husband and grandparents.

(2.) THE Petitioner who is resident of British Columbia got married to respondent No. 4 in December 1966 in India. After the marriage, the parties remained in India for approximately 6 months as husband and wife and thereafter the petitioner returned to Canada to pursue the sponsorship application of respondent No. 4. The immigration authorities at Canada did not accept the marriage of the petitioner and respondent No. 4 as genuine as it was considered to be only a religious marriage. The marriage was registered in India in the year 1998. Thereafter, the petitioner travelled to India on two occasions and spent several months in India in order to be with respondent No. 4. The detenu were born in Surrey, British Columbia Canada and after the DNA test was conducted the immigration authorities accepted the marriage to be genuine and respondent No. 4 was permitted to land in Canada in July, 2002. Respondent No. 4 landed in Canada and stayed with the petitioner at Surrey B.C. Respondent No. 4 after going to Canada authorities started pressurizing the petitioner to move to Toronto, and on his insistence the petitioner along with respondent No. 4 moved to Toronto in October, 2003.

(3.) IN the month of November, 2005 the petitioner took children to India and lived with respondents Nos. 5 and 6 and returned to Canada in December, 2005 after staying here for a while. It is the case of the petitioner that as respondent No. 4 was convicted he could not stay with the petitioner till the terms of probation order were varied. With the consent of the petitioner said terms were varied in May, 2006 and respondent No. 4 moved back into matrimonial home and reconciliation was complete. It is the case of the petitioner that thereafter she showed her desire to have her children returned to Canada as it was proved difficult for herself to be away from her minor children. However, this request was not accepted and only an assurance was given that the children would be called to Canada at the earliest.