Continued Custody Of Minor Child With Father Who Is Residing With His Second Wife Not Conducive To Child’s Welfare: Punjab & Haryana High Court
The petition before the Punjab and Haryana High Court was filed for the custody of a minor boy.
While granting custody of a minor child to the mother, who is an Australian citizen, the Punjab and Haryana High Court has held that continued custody of the minor child with the respondent-father, who is remarried and residing with his second wife, is not conducive to the welfare of the child.
The petition before the High Court was filed for the custody of a minor boy who was residing with his father in India. The father was granted custody only for a limited period.
The Single Bench of Justice Rajesh Bhardwaj said, “In view of the totality of the circumstances, this Court is of the considered opinion that the continued custody of the minor child with the respondent-father, who is remarried and residing with his second wife, is unjustified, contrary to the orders of a competent foreign Court, violative of the principles of comity of Courts, and not conducive to the welfare of the child.”
Advocate S.S. Salar represented the Petitioners while Addl. A.G. Tarun Aggarwal represented the Respondent.
Factual Background
It was the first petitioner’s case that the mother of the child, who is sought to be impleaded as the second petitioner in the main petition, is an Australian citizen who was married to the seventh respondent, and they were blessed with two children. Due to matrimonial discord between them, divorce was granted to them and the children were given to the mother. However, the respondent-father was granted visitation rights. Thereafter, the respondent-father, with permission of the Family Court, Australia, granted vide order January 7, 2025, brought both the children to India for almost a month.
However, the daughter was sent back to Australia in terms of the order, and the son was kept in India. The mother filed a petition upon which the Family Court of Australia passed the recovery order wherein the Government of India and the police authorities were requested to help in the execution of the order dated January 7, 2025, to facilitate the return of the child to Australia. The Petitioner claimed that, acting as per the mother’s authorization, the Petitioner had approached the High Court by filing a Petition of Habeas Corpus for searching his minor grandson.
Reasoning
Referring to a catena of judgments of the Apex Court, the Bench noted that the present petition in the form of habeas corpus for restoring custody of the minor child to the mother was maintainable as the custody of the minor child with the respondent father was prima facie illegal and without any authority of law.
On the issue regarding the enforcement of an order of a foreign court through judicial intervention in India, the Bench referred to the judgment of the Supreme Court in Shilpa Aggarwal v. Aviral Mittal & Anr. (2010) wherein it has been held that the order of the foreign court concerning the custody of a minor child can be implemented by Indian Courts.
The Bench noted that the marriage of the second petitioner has already been dissolved, and she has authorized her father to file the present petition. It was also revealed from the status report that the respondent-father had first brought the children to Ludhiana to attend a family function. This showed that the cause of action had arisen to the petitioners in the State of Punjab from the very beginning. Thus, the Bench found that even if the father had taken the minor child in Rajasthan at a later stage, the mother was competent to file the present petition to seek the welfare of the minor child, before the Punjab and Haryana High Court.
The Bench also took note of the contention that the respondent remarried in the year 2022. It was further noticed that the minor child is living in the company of his grandparents and his extended uncles and aunts. The respondent-father has been remarried; therefore, there was a probability that the respondent-father was not living with the minor child and residing separately with his second wife. “Once the respondent-father has been remarried, then it is obvious that the welfare of the child is with petitioner no.2-mother, who has not been remarried only because of the reason that she wants to devote her life for her children’s well being, their happiness and to make them successful in every aspect of life”, the Bench said.
Holding that Indian Courts cannot be reduced to instruments of convenience for litigating foreign nationals seeking to sidestep judicial proceedings in their own jurisdictions, the Bench allowed the Petition and asked the respondent-father to hand over the minor child to the petitioner 2-mother.
Cause Title: Joginder Singh Sekhon v. State of Punjab and Others (Neutral Citation: 2025:PHHC:073684)
Appearance
Petitioner: Advocates S.S.Salar, Jasjeet Singh Dhaliwal, Goldy Jakhar
Respondent: Addl. A.G. Tarun Aggarwal, Senior Panel Counsel Ashish Rawal, Advocate R.S. Atwal