Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
st
Date of Decision: 1 August, 2024
+ W.P.(CRL) 2014/2024
SHRI NISHANT KAPOOR .....Petitioner
Through: Mr Sounya Kundu, Advocates.
versus
STATE OF NCT DELHI & ORS. .....Respondents
Through: Mr. Sanjay Lao, Standing Counsel
with Ms. Priyam Agarwal and Mr.
Abhinav Kumar Arya, Advocates.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
2. The present petition has been filed by the Petitioner- Mr. Nishant
Kapoor under Article 226 of the Constitution of India read with Section 482
Cr.P.C. The Petitioner vide the present petition is seeking issuance of a writ
of nature of habeas corpus , thereby directing the Respondent Authorities to
produce his wife and son, Master ‘P’, before this Court.
3. It is stated in the petition that the Petitioner got married to Ms. Harpreet
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Kaur on 4 February, 2016. Further, from the wedlock they had a child,
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Master ‘P’, on 11 February, 2020. However, there were differences which
arose between the parties and subsequently, a petition under Section 25 of the
Guardians and Wards Act, 1890 was filed by the Petitioner herein against his
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wife. The same was disposed of as settled on 31 January, 2024.
4. In the order dated 19th January, 2023 in GP 23/23 titled Nishant v.
Harpreet , various terms have been recorded by the Court including the
possible treatment for the child- Master ‘P’ who is suffering from cerebral
palsy. The order would be relevant and set out hereinbelow:-
“The present case is assigned by the Hon'ble Court of Ms.
Nivedita Anil Sharma, Ld. Principal Judge, Family Court,
North District, Rohini Court, New Delhi. Process of
counselling has been explained in detail to the parties with
greater emphasis of confidentiality. Heard the parties jointly
as well as separately. They have agreed to settle their matter
voluntarily and amicably without any force/coercion on the
following terms and conditions:-
1. The child born from this wedlock is need more medical
care and attention due to his physical & mental inability.
2. That it is agreed between the parties that the Medical
expenses and other misc. expenses of the child Pragnay will
be borne by the father/ petitioner and respondent will take
all care of the child till 15/03/24 we join together with each
other company.
3. That it is agreed between the parties that the petitioner
have a visitation right to meet child Pragnay on every
Sunday between 2-4 p.m. at any public place or restaurant
as per convenience of the child.
4. That it is agreed between the parties that child Pragnay
used to go for therapy sessions 6 days in a week and
petitioner can meet his child during this therapy session also
and he used to meet the child several times during therapy
sessions.
5. That it is further decided between the parties that parents
of the child will also consult or treatment through out the
world for example US or Canada and they are ready to go
to the decided place for medical consultation regarding
paramount welfare of the child for 15 to 20 days trip.
6. That it is agreed between the parties that petitioner have
to arrange around 8.50Lakhs Rupees in his account for visa
purposes only before 30 November 2023. Petitioner said that
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he will arrange such amount by taking loan from bank or
relatives. For applying visa we need to show such amount in
our account for atleast more than I months in this situation
petitioner will give his updated statement to the respondent
prior to 30 November 2023 if Nishant miss that date He
would have buffer time for 15 days to provide statement for
further procedure of applying Visa. Once visas are done
,after booking flights tickets all cases will be withdrawn by
both the parties filed against each other.
7. That it is agreed between the parties that petitioner will
hand over all required and necessary documents regarding
visa formalities to the respondent on or before 1" November
2023.
8. That it is agreed between the parties that the travelling
expenses of petitioner, respondent and child will be borne by
both the parties and after reaching US or Canada all
expenses will be borne by. the respondent only.
9. That it is agreed between the parties that in case if their
second application for Visa got rejected for any reason then
respondent will withdraw all her cases against the petitioner
and also she will join back the society of the petitioner at
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rental accommodation on 15 March 2024. 10. That it is
agreed between the parties that all the belongings like gold
article cost around twenty five lakhs only appoximatly
purchase by the both parties of the respondent will be remain
with the respondent even after joining the society of the
petitioner.
11. Both the parties have been read out the contents of the
present settlement in vernacular language and the same
have been made understood to both the parties and both the
parties undertakes to be bound by the terms of this
settlement.”
5. An affidavit was sworn by Ms. Harpreet Kaur, confirming the
settlement. However, despite agreeing that she would join the Petitioner and
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start living together from 15 March 2024, the facts reveal that she flew to the
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United States of America on 13 March, 2024.
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6. According to the Petitioner, till 12 March 2024, they were together
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looking for a house and he was not informed that his wife had decided to
travel to New York along with their son. This was completely deceptive and
unlawful conduct on the part of the wife.
7. On the last date of hearing, the wife of the Petitioner- Ms. Harpreet
Kaur, had joined the proceedings virtually and submitted that the Petitioner
had agreed to travel with her and their son for medical treatment but had later
backed out. This is disputed by the Petitioner. During the proceedings, on the
last date of hearing, it was also confirmed that Ms. Harpreet is living with her
parents and siblings in the U.S. She was accordingly, impleaded as
Respondent No.6. After hearing the parties, the following directions were
issued:-
11. Considering the fact that the child, Master
Pragnay Kapoor has been taken away from the jurisdiction
of the Court, contrary to the order dated 31st January, 2024
passed by the Family Court, North District, Rohini Court,
Delhi, let the Respondent No. 6 file a reply as to why action
ought not to be initiated against her for contempt in
accordance with law.
12. It is further directed that the Respondent No. 6
shall facilitate a video call for at least ten minutes every day
with the child, Master Pragnay Kapoor with his father.
8. As per the above order, reply was to be filed by Respondent No.6 as to
why Contempt action should not be initiated against her.
9. Today, Mr. Sajal Manchanda, ld. Counsel appearing for Ms. Harpreet
submits that he needs more time to file the reply.
10. The prayer for adjournment has been opposed by the Petitioner. The
Petitioner himself is present in Court and he submits that insofar as the video
call was concerned, in the first week, no calls were made, however, thereafter
from the second week, he is being made to speak to his son every day in terms
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of the order.
11. It is also submitted by the Petitioner that the original passport of the
child, Master ‘P’, is with him. Ms. Harpreet Kaur, in fact, gave a false
complaint that the passport was misplaced and a fresh passport was obtained
by her on the basis of such false complaint without his consent.
12. He also submits that Ms. Harpreet Kaur herself does not have a valid
U.S. visa and has illegally entered the U.S. It is further his allegation that the
family of his wife including her father, Mr. Gurvinder Pal Singh, enables
Indian citizens to illegally immigrate to the US.
13. These contentions are disputed by Mr. Harpreet Kaur. She submits that
she is legally living in the U.S. and her son is being treated for cerebral palsy
and he cannot walk. On a specific query by the Court to Ms. Harpreet as to
whether she has a U.S. visa, she confirms that she does not have a U.S. visa.
However, her stand is that her stay in the U.S. is legally valid based on her
homeland security documents.
14. Clearly, the child has been taken out from the jurisdiction of this Court
and outside India, which is contrary to the settlement which was entered into
by the Petitioner and the Respondent No. 6- Ms. Harpreet Kaur.
15. The conduct of Ms. Harpreet has also been deceptive as the allegation
is that they were together looking for a house till 12th March, 2024, but
suddenly she flew to the U.S on the next day itself. This kind of conduct is
violative of terms and settlement which was arrived before the ld. Family
Court and the same cannot be condoned by this Court. The conduct of the
wife Mrs. Harpreet Kaur clearly constitutes contempt.
16. At this stage, the ld. Counsel for Respondent No. 6/Ms. Harpreet Kaur
seeks time to take instructions from his client.
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17. The matter was passed over and again was taken up after sometime.
18. Both Ms. Harpreet Kaur and her Counsel submit that she tenders her
unconditional apology for having violated the settlement terms and for having
taken the child out of the jurisdiction of this Court.
19. In the opinion of this Court, the conduct of Ms. Harpreet Kaur has been
deceptive to say the least. Under such circumstances she is now giving an
undertaking to the Court that she would return back to India by 10th
September, 2024 along with the child.
20. The Court accordingly directs that Ms. Harpreet Kaur shall return to
India with the child by 10th September, 2024. If there is failure to return to
India by the said date, the Petitioner is free to use the present order and
communicate the same to the U.S. Embassy in India as also for notify the
Immigration Authority in the U.S regarding the conduct of Ms. Harpreet
Kaur.
21. The original passport of the child has been produced before the Court
and has been seen by the Court.
22. The Petitioner is given liberty to approach this Court if the wife and the
son do not return to India before the aforesaid date.
23. The petition is disposed of in the aforesaid terms.
24. Pending applications, if any, also stand disposed of accordingly.
PRATHIBA M. SINGH
JUDGE
AMIT SHARMA
JUDGE
AUGUST 01, 2024/ss/ bh/NS
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By:RAHUL
Signing Date:02.08.2024
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