Gujarat High Court
Bhavnaben D/O Lebabhai Rabari vs State Of Gujarat on 25 June, 2021
Bench: Gita Gopi
R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 9007 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the judgment ? NO
4 Whether this case involves a substantial question of law as to the NO
interpretation of the Constitution of India or any order made thereunder ?
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BHAVNABEN D/O LEBABHAI RABARI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MS ARCHANA R ACHARYA(2475) for the Applicant(s) No. 1
A A DAUDIVHORA(7516) for the Respondent(s) No. 4,5,6,7,8
NOTICE SERVED(4) for the Respondent(s) No. 2,3
PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 25/06/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. This is an application preferred under Article 226 of
the Constitution of India by the mother seeking custody of
her daughter, who is presently with her divorced husband.
2. The petitioner married the respondent No.4 on
10.05.2011 and her daughter came to be born out of the
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said wedlock. Between the spouses, due to internal
disputes which had led to irretrievable break down of the
marriage, the divorce was perceived to be last resort and
accordingly, on 04.10.2020, by way of a customary
divorce permissible in their caste, the spouses chose to
severe their ties finally.
3. It is the say of the petitioner that at the time of the
divorce, it had been decided between the parties that the
daughter would continue to be with the mother and the
respondent No.4 whenever would choose to meet his
daughter he would be permitted to so do it. In between,
he had taken the daughter for a few days and had
returned her to mother.
4. On 02.12.2020, the respondent No.4 took his
daughter for some days and the petitioner was under the
impression that he would be returning the daughter after
a few days. When that did not happen, and when the
petitioner realized that the respondent No.4 got engaged
with the third person, on 09.12.2020, her brother and
cousin had gone to village Methan to take back the
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daughter. The former husband-respondent No.4 had
denied to handover the custody of the child and instead,
had abused the relatives of the petitioner.
5. The grievance on the part of the petitioner is that the
daughter is only four years of age and she is required to
be with her mother and instead she has been illegally
detained by the respondent Nos.4 to 9. The mother is not
being permitted to meet the daughter therefore, she
firstly chose to give an application to P.S.I., Kakoshi Police
Station. She has expressed her apprehension that the
daughter was not well and may suffer further for want of
care of mother. Therefore, in absence of any efficacious
remedy, in the present pandemic, she has chosen to
approached this Court by way of writ petition seeking the
writ of Habeas Corpus or any other appropriate writ with
the following reliefs:
"12...
a. To admit and allow this petition.
b. Your Lordships may be pleased to issue
writ of Habeas Corpus or any other writ and
directing the respondent authority to
produce the corpus Jensi before this Hon'ble
Court.
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c. Pending admission, final hearing and
disposal of this petition appropriate writ of
Habeas Corpus or order or direction against
the respondents for production and the
corpus-Jensi before this Hon'ble Court be
passed in the interest of justice;
d. To pass any other and further orders as
may be deemed fit and proper."
6. Noticing the fact that this petitioner is seeking the
production of the corpus, who is a daughter born out of
the wedlock of these litigants and who after the customary
divorce on 04.10.2020 was to be continued in the custody
of the mother, has been allegedly unauthorizedly taken
away by the divorced husband-respondent No.4 herein
and noticing the age of child, this Court issued the notice
directing the corpus to be brought before it through the
video conference on 06.01.2020.
6.1 On the returnable date i.e. 13.01.2020 the
respondent No.4-father of the corpus kept the
daughter present. He admitted that the customary
divorce had already been taken place between the
spouses and it was agreed by both the sides that the
custody of the daughter needs to be continued with
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the father although, there is nothing reduced into the
writing. He emphasised that for retaining the custody
of his child, he has paid the substantial amount and
the amount has been given to the parents of the
petitioner. He also expressed his wish to take the
petitioner back as his wife. Respondent No.4 is
serving as a teacher in District Kutch and the child
essentially is being looked after by the grandparents.
He also has admitted that he has been engaged
elsewhere, but still insisted that he can once again
start the martial life with the petitioner.
7. In these circumstances, we made a request to the
Member Secretary, Gujarat State Legal Service Authority,
Shri H.S.Mulia to personally mediate in this matter as the
circumstances themselves necessiated mediation in the
matter.
8. On 25.01.2021, affidavit-in-reply has been filed by
the respondent No.4. According to whom, this is nothing
but-the abuse of process of law. The corpus being the
minor daughter is neither in wrongful confinement of her
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father nor can she be said to be unauthorizedly detained
by the father. The custody was handed-over on the
permanent basis by the petitioner herself on 04.10.2020
in presence of the members of family, friends and
relatives. It is the say of the respondent that the petitioner
was not willing to take custody of the corpus at the time of
divorce and the respondent No.4 since has a joint family,
they accepted her custody. The present petition is
preferred misrepresenting the facts. The intent on the part
of the petitioner is to extract money and the child has
been used as an instrument. The petitioner has extracted
Rs.9.50 Lakh under the guise of divorce and after getting
the amount, she wants the custody of the child back. She
is neither interested in a custody of the child nor anything
else, but, the monetary aspect alone.
8.1 According to the respondent No.4, there were
about more than 250 persons present at the time of
meeting of compromise at Siddhpur Unjha Highway,
Near Avkar Hotel Unjha Road on 04.10.2020. The
petitioner in that meeting had not uttered a single
word about the custody of her child. He has also
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annexed affidavits of the Panchas and the relatives,
who were present at the time of compromise
meeting.
8.2 According to the respondent, he needed to take
a loan from IIFL Finance (Formerly Known as IIFL
Holdings Limited) and DCB Bank, Kakoshi Branch by
mortgaging some gold ornaments of their family
members for making the payment of Rs.9.50 Lakh.
He also denied that there was any attempt of taking
away the corpus from the petitioner as she continued
to be with her father from 04.10.2020. The
respondent No.4 said that he is a teacher at
Raydhanjar Panchayati Primary School, Mouje village
Raydhanjar, Taluka Abdasa, District Kutch. The
distance between village Raydhanjar where he works
and Visnagar where he resides with his parents is
about 500 kms and it is about 12 hours run by car. It
is impossible for him to visit Visnagar for taking away
the minor daughter as alleged by the petitioner. The
entire story of taking away the minor daughter is
concocted as the customary divorce has taken place
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between the spouses, where she is not entitled to
take back the child on the ground of engagement or
the remarriage of respondent No.4.
8.3 The respondent No.4 further has urged that he
resides in a joint family. The child has a grandmother,
paternal aunt and just because he needs to remarry
that would not make the custody of the child illegal.
He has also produced various photographs to reflect
his love and affection for the child. The affidavits of
the four neighbors to contradict such allegations also
have been reproduced.
8.4 It is reiteratively emphasised that the
respondent No.4 being the father, cannot be said to
have an illegal custody and the writ of Habeas
Corpus is not maintainable. He ephasised on the
affidavits of two of his neighbors Shri Maganbhai
Cheharbhai Desai and Shri Kanjibhai Bababhai Desai,
who have confirmed the love and affection enjoyed
by the corpus daughter from the respondent No.4
and his family.
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8.5 According to the respondents, the present
petition is nothing but a foul game and there is not a
single document produced by the wife to establish
her case.
8.6 Some of the persons who have filed their
affidavits can be named as follow:
No Names of the persons who have filed their affidavits.
.
1 Desai Maganbhai Jivabhai
2 Desai Kanjibhai Bababhai
3 Desai Labhubhai Chaganbhai
4 Rabari Prabhatbhai Jaksibhai
5 Rabari Kanjibhai Maganbhai
6 Rabari Shaileshbhai Vashrambhai
7 Desai Ghemabhai Shankarbhai
8 Desai Dineshbhai Naagjibhai
9 Desai Govindbhai Shakkarbhai
10 Desai Mohanbhai Jethabhai
11 Desai Shaharbhai Lallubhai
12 Desai Gemarbhai Vastabhai
13 Desai Bhikhabhai Ratnabhai
14 Desai Kanjibhai Sankabhai
15 Desai Maheshbahi Mafabhai
16 Desai Maganbhai Cheharabhai
17 Desai Amratbhai Madhabhai
18 Desai Sanjaybhai Somabhai
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The gist of all these affidavits is that the customary
divorce took place between the spouses on 04.10.2020 in
presence of the panchas. The meeting was arranged near
Siddhpur Unjha Highway, Nr.Avkar Hotel Unjha Road in the
open field at around 05:00p.m. on 04.10.2020. The
custody of the child in presence of the panchas and others
had been handed over to the respondent No.4, father of
the child and he, in turn had given Rs.9.50 Lakh to the
mother of the child for retaining custody.
8.7 The photographs produced of the child of its being
with the father at different places and enjoying her days of
innocence.
8.8 The neighbors, who have filed the affidavits have
stated that the respondent No.4 frequently is taking the
daughter out and also is bringing the toys, new cloths and
other items. She is being looked after very well. The
respondent No.4 is residing at Raydhanjar, she at no point
of time is being harassed and after 04.10.2020, petitioner
has not gone to the village to meet her daughter. It is a
very small village and therefore, anyone would know
about her visit if she would have visited. Likewise, Desai
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Maheshbhai Mafabhai president of Siddhpur, opposite
Dudh Sagar Dairy claims to have very cordial relations
with the family of the respondent No.4. He has also
reiterated the details which have been given by other
neighbors. Petitioner as a mother, at no point of time, had
met the daughter and the family looks after the daughter
quite well. Other neighbors Desai Kanjibhai Shakabhai and
Desai Maganbhai Cherabhai have also stated the very
details in a stereo typed manner, which would not require
further elaboration.
9. Affidavit-in-rejoinder filed by the petitioner-
Bhavnaben laments that different affidavits filed by 25-30
persons are having the similar contentions. It is only with
a view to create evidence against the lawful right of the
petitioner that such attempts are made where there are
either relatives or unknown persons of the respondent
No.4 and therefore, their affidavits cannot be relied upon.
9.1 According to the petitioner, the writ of Habeas
Corpus would be maintainable in relation to the custody of
the minor child since retaining at the custody by the
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respondent No.4 is unlawful and illegal. The custody of the
minor child is to be examined on the touchstone of the
principle of parens patriae. The Division Bench of this
Court in case of Sejalben Arpitshah vs. State of
Gujarat, reported in (2019) (3) GLR 2247 relying on the
various decisions of the Apex Court has held that the
mother should not be deprived of her right considering the
tender age of the child and she being the girl child, the
father and the grandparents may be taking good care of
the child, but they cannot substitute the mother.
9.2 According to the petitioner, the respondent No.4
produced several photographs to demonstrate that he is
taking good care of his daughter, but they do not depict
the love and affection required by a child.
9.3 It is further the say of the petitioner that at the time
of customary divorce, the respondent No.4 had agreed to
handover the custody of a minor child and the petitioner
being the mother also never agreed as she did not want to
let go the custody of the child.
10. The maternal uncle Saharbhai Versibhai Rabari and
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Rameshbhai Motibhai Rabari, who also were present at the
time of customary divorce have sworn their affidavits
stating on oath that the petitioner has never agreed to
part with the minor child.
11. Rameshbhai Rabari who is the cousin brother of the
petitioner-Bhavnaben has stated that he was personally
present when the divorce took place. The amount of
Rs.9.50 Lakh was a penalty amount as per their customs
given to Bhavnaben at the time of divorce. He has also
further stated that Kanjibhai Shankarbhai Desai and
Maganbhai Cheharbhai Desai are relatives of respondent
No.4, who themselves have decided the amount of penalty
as per their customs, Bhavnaben had never agreed to
handover the custody of minor child. The entire story is
concocted that the custody of child was to be handed-over
to the respondents.
12. Similarly, Saharbhai Versibhai Rabari the maternal
uncle of the petitioner-Bhavnaben has along the very line
filed the affidavit. He too was personally present at the
time of customary divorce and according to him, the
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custody of the child was never given.
13. As noted above, the reference made to the Member
Secretary, GSLA was for mediation and On 28.01.2021,
the report of the Mediator made it clear that the mediation
had not been successful. We could also notice as reflected
in our order dated 28.01.2021 that the girl was found
attached to the father. We, therefore, permitted four
different dates for meeting of mother with the child at the
Court at Siddhpur. The learned Principal District Judge,
Patan was also requested to communicate to the Principal
Senior Civil Judge to provide the space to the petitioner
and her daughter and to further facilitate the process of
mediation. The receipt of report of every meeting of
mother with the child was also directed.
14. We could notice on 28.01.2021 that the grievance on
the part of the learned advocate appearing for the
petitioner-mother that the mother was not permitted the
exclusive meeting with the daughter and there was an
attempt to make a show that the daughter is quite friendly
with the father, which in fact was not the case.
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15. We heard both the sides on the grievance of meeting
at District Patan and could know that the atmosphere was
not conducive and therefore, we directed the mediation to
happen at City Civil and Sessions Court, Ahmedabad at
the Mediation Centre and learned Principal District Judge
was also requested to ensure the presence of one of the
judges, on both the days i.e. on 25.02.2021 and
26.02.2021. We posted the matter after once the Court
received the report through the learned Principal District
Judge. The said report was received on 02.03.2021.
16. The report 02.03.2021 is received from Ms.Preet
Kamal Tirath Ram, learned judge, Court No.27, City Civil
and Sessions Court, Ahmedabad in whose presence the
Court had directed the mother to meet the child. In wake
of the complaints made by the learned advocate of the
petitioner and the developments noticed through reports,
she has specified that the meetings of the child corpus
was conducted under her supervision. It was otherwise to
be held at mediation centre, but the same had been
conducted in her chamber as another habeas corpus
petition was pending and the comfort of the child was
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also taken care of. Initially, the child was not wanting to
talk to her mother but she opened-up and started playing
with her mother. Respondent No.4 was requested to be
out of the chamber, however the child was not
comfortable. Attempt was made for mediation and the
respondent-father did not want to give the custody of the
child and the petitioner is not willing to reunite. According
to the respondent No.4, with the intervention of the
respected members of the society, the marriage has been
dissolved and Rs.9.50 Lakh had been given in lieu of
custody of the child. He is very happy to continue to live
with the child and the child is quite attached to him. He
also was engaged after dissolution of the marriage;
however, according to him, he was ready to revoke the
said engagement.
16.1 According to this report,on 26.02.2021,
both of them came back along with the child and the
child was very comfortable and happy to meet the
petitioner mother. She spent quality time and when
the child was asked whether she was ready to go
with mother, she said yes. The Court also gave
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proposal to the couple to reunite so that the
relationship could be seemed for the safe and better
future of child to which the respondent-husband
agreed, but, the petitioner-mother refused to reunite
and she insisted for the custody of child.
16.2 According to the learned judge, when she
talked to the family members and the brother of the
petitioner, it was realized that the amount of Rs.9.50
Lakh has been received, but the same was not for
giving the custody of the child, however, the society/
community pays fine as punishment and the amount
was given by way of a fine.
16.3 The learned judge has further observed
that the custody of the child was given to the
respondent No.4 with the consent of the family of the
petitioner by the mediators of both the sides.
However, the petitioner herself was given the
impression that child would come back to her after
two days and she was not aware of giving the
custody to the respondent-father.
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16.4 When she came to know of reality, she
filed a writ petition. She also is not aware of the
amount of Rs.9.50 Lakh given by the respondent. It is
also observed by the learned judge that the apparent
look of the respondent of being extremely obedient,
but, in reality this attitude was not found genuine by
her and this was the impression she carried while
interacting with the respondent No.4. According to
her, he would need to take care of the girl child which
he would not be capable to do himself, whereas the
petitioner mother is living in a joint family and here
being the girl child, the petitioner according to her, is
a deserving parent. The parental side of the
petitioner is ready to deposit Rs.9.50 Lakh in the
name of the child and as per the social custom also,
the petitioner does not agree with the decision of the
respectable members of the community and if she
insists to have the custody of the child, the amount
needs to be returned to the respondent No.4.
17. We also had further alongside had directed both the
sides to take instructions with regard to the amount of
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Rs.9.50 Lakh averred to have been given by the
respondent No.4 to the parents of the petitioner for
handing-over the custody of the daughter. Since it was
realized that the caste leaders had decided the customary
divorce placing certain terms and conditions to both the
sides without anything in writing, some persons had filed
affidavits and according to the petitioner's side, they were
the relatives of the other side. Therefore, the caste
leaders who remained present when meeting of the
parties materialized, this Court directed two senior most
persons of the community to remain present through
video conference from each side and this was to be
conducted from the chamber of learned Principal District
Judge, Patan. Accordingly, the meeting through video
conference was conducted and the following order dated
05.03.2021 came to be passed:
"1. Pursuant to the last order passed by us the
affidavit in rejoinder on behalf of the petitioner is
produced today on record. As directed by us, two
persons namely each from petitioner's side
Saharbhai Versibhai Rabari and Rameshbhai
Motibhai Rabari and from the respondents side
Desai Kanjibhai Maganbhai and Desai Kanjibhai
Sondhabhai are present. They submitted that
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the amount of Rs. 9.5 Lakhs has been given in
presence of the panchas and handed over the
custody of the daughter to the father in wake of
the proposal made by the father of the
petitioner. This has been accepted in cash in
presence of the father, brother of the petitioner
and other panchas. Whereas, Saharbhai and
Rameshbhai have been given this amount by way of
penalty charges for the act committed on the part of
Sureshbhai Babarbhai Rabari.
2.We have noticed that the panchas have acted without any
consideration of the case as there is neither any
constitution of the caste nor any rules nor any written
code for the panchas to act as panchas. The number
of panchas in each matter would also differ. After
hearing the learned Advocates Ms. Acharya and Mr.Daudhivhora
appearing in the instant case, it was submitted that 1520
persons on each side remained present. They
submitted that during the selection of the panchas, it
was seen that none of them had any legal background
nor any understanding of how the law operates in any
of the matters they deal with. They confirm that in
Taluka : Siddhpur the community of Desai and Rabari
do not have any knowledge of the written constitution
or rules. Neither sides have any understanding of the
provision of the Legal Services Authority Act, 1987.
They never had heard any feature of the Lok Adalat or
any compromise apart from the litigation steps. After
hearing Ms. Acharya on the issue we would be pleased
to highlight this aspect and prefer to give appropriate
directions in this regard. Matter for that cause, be
posted on 18.03.2021.
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4.It is directed that the mother and the daughter can meet each
other exclusively on 12.03.2021 between 12:00 P.M.
to 4:00 P.M. at the City Civil Court, Ahmedabad in the
premises of the State Legal Services Authority.
Necessary arrangement shall be made by the
Registrar, City Civil Court."
18. The report also has been prepared by the Police Sub
Inspector, Mr.N.D.Parmar, Kakoshi Police Station. An
application came to be moved being Application Inward
No.1470 of 2020 by brother of the petitioner-Vishalbhai
Lenbabhai Rabari, who sent this application on 18.12.2020
to Kakoshi Police Station. According to whom, his sister
Bhavnaben has not remarried and she was staying with
them at Visnagar. The respondent No.4 already got
himself engaged and when this news was received by the
petitioner, her brothers Vishal and Ankit (cousin) arrived at
Methan on 09.12.2020. The respondent No.4 since was at
Kutch, all the three had gone to his residence and made a
request for daughter's custody and they have been
refused by his family. According to these persons, as
Sureshbhai was engaged elsewhere, they came to take
the custody of the child, nothing has been reduced into
writing at the time of divorce. It was also decided that the
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daughter would stay with mother and sometime
occasionally she would be taken to Methan. The police
officer also took the statement of other side and according
to them, the brother of the applicant-Vishal or petitioner
herself and her cousin had not gone to the respondent's
family. Ankit Saharbhai Desai had gone there on
18.12.2020, they were also offered tea and the daughter
was not present and in a cordial atmosphere they had left.
The child had gone with her grandparents to Kutch where
the father has been serving.
19. This Court extensively heard the learned advocates
on both the sides, who along the line of the rival
contentions argued this matter. There is no requirement
for the court to reiterate detailed submissions made by
both the sides. Suffice to note that to support the
respective pleadings, the learned advocates, Ms.Archana
Acharya for the petitioner and Mr.Mitesh Rangras with
Mr.A.A.Daudivhora for respondent Nos.4 to 8 and learned
Additional Public Prosecutor, Ms.Jirga Jhaveri for
respondent-State argued fervently.
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20. Having thus heard learned advocates on both the
sides and also noticing closely the material on the record,
what emerges before this Court is the petitioner-
Bhavnaben married respondent No.4-Sureshbhai
Babarbhai Desai, both belonging to Rabari community on
10.05.2011. The daughter was born out of the said
wedlock and is presently four years of age. She is born on
12.10.2016 at Visnagar.
20.1 Due to matrimonial disputes, the parents
chose to end their marital ties and accordingly the
customary divorce has taken place. It appears that
under the law, the customary divorce is feasible on a
stamp paper where the caste permits such divorce
and everything is reduced into writing, the same is
also stamped at the office of the Sub-Registrar. This
is permissible in some of the castes which recognize
the customary divorce. Here undoubtedly, the parties
chose to take the route of customary divorce to end
their marital tie on 04.10.2020, but instead of
reducing the same into writing the caste leaders
worked together at open field on 04.10.2020 near
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Avkar Hotel Unjha Road,Siddhpur-Unjha Highway. It is
surprising as to why 250 caste peoples gathered as
emphasized by the respondent on that day for
working out the divorce!!. It is quite strange and
intriguing as to why so many people needed to be
present!! certainly is not a happy occasion to
celebrate nor an occasion where people gather to
mourn the demise of any near ones or of a leader! If
the caste leaders are to mediate, there is bound to
be a written constitution in every caste and the
leaders, in a limited numbers would sit together in
presence of the spouses and close family members.
The terms of divorce would be ordinarily reduced into
writing and the same would be placed in black &
white and everything is made clear on paper for the
parties to refer the same in the future. Nothing of the
sort is noticed. Both the sides agreed, however that
the divorce took place on 04.10.2020.
20.2 It is although not in dispute that parties from
both the sides had remained present and nothing has
been reduced into writing and no terms and
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conditions are brought on the record, which will
govern the future course of action of the spouses.
When this Court had an occasion to meet some of the
caste leaders pursuant to the order passed on
05.03.2021, it could be noticed clearly that during
the selection of the panchas, there was no legal
background nor even any basic understanding on the
part of anyone as to how the law operates and what
considerations need to be regarded in the matter of
custody. The community of Desai and Rabari at
Taluka Siddhpur had no knowledge of the
requirement of any written constitution or of the
rules. Neither side has any knowledge of the
provision of the Legal Service Authorities Act, which
permits the parties to compromise without litigating
in an adversarial litigation at a pre-litigation stage in
Permanent Lok Adalat under the Legal Service
Authorities Act. They were clueless that it is feasible
for the parties to arrive at the compromise, which will
have the form of court's decree once such a
compromise is finalized under the law. These leaders
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had no knowledge of any Lok Adalat or the
compromise at a pre-litigation stage. It is quite
unfortunate that this act has come into being with
laudable objectives and one of the ways expected is
to propagate these very useful & vital aspects which
are meant for the benefits of the common man and
the spread of legal awareness through legal
education is also made an integral part of the
statutory provisions so that the common man is
made aware of his rights and informed as well as the
enlightened citizenry can better perform and make
an enriching society where the rights of all concerns
are better protected. Had there been a little
awareness of such provisions made under the
statutes,this would have saved enormous time,
energy and resources, which are otherwise scarce
and are expected to be utilized judiciously.
21. Some of the provisions which will cursorily require a
reference are Section 20, 21 and 22 of the Legal Service
Authorities Act, however the vital Chapter VI A under the
heading of Pre-Litigation Conciliation And Settlement.
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21.1 Section 22 B speaks of establishment of
Permanent Lok Adalat and Section 22 C speaks of
Cognizance of cases by Permanent Lok Adalat, which
require reproduction.
"Section 22B. (1) Notwithstanding
anything contained in section 19, the
Central Authority or, as the case may be,
every State Authority shall,by
notification, establish Permanent Lok
Adalats at such places and for exercising
such jurisdiction in respect of one or
more public utility services and for such
areas as may be specified in the
notification.
(2) Every Permanent Lok Adalat
established for an area notified under
sub-section (1) shall consist of (a) a
person who is, or has been, a district
judge or additional district judge or has
held judicial officer higher in rank than
that of a district judge, shall be the
Chairman of the Permanent Lok Adalat;
and (b) two other persons having
adequate experience in public utility
service to be nominated by the Central
Government or, as the case may be, the
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State Government on the
recommendation of the Cnetral Authority
or, as the case may be the State
Authority, appointed by the Central
Authority or, as the case may be, the
State Authority, establishing such
Permanent Lok Adalat and the other
terms and conditions of the appointment
of the Chairman and other persons
referred to in clause (b) shall be such as
may be prescribed by the Central
Government.
Section 22C. (1) Any party to a dispute
may, before the dispute is brought
before any court, make an application to
the Permanent Lok Adalat for the
settlement of dispute:
Provided that the Permanent Lok
Adalat shall not have jurisdiction in
respect of any matter relating to an
offence not compoundable under any
law:
Provided also that the Central government,
may, by notification, increase the limit of ten
lakh rupees specified in the second proviso in
consultation with the Central Authority.
(2) After an application is made under sub-
section (1) to the Permanent Lok Adalat, no
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party to that application shall invoke
jurisdiction of any court in the same dispute.
(3) Where an application is made to a
Permanent Lok Adalat under sub-section (1),
it-
(a) shall direct each party to the application
to file before it a written statement, stating
therein the facts and nature of dispute under
the application points or issues in such dispute
and grounds relied in support of, or in
opposition to, such points or issues, as the
case may be, and such party may supplement
such statement with any document and other
evidence which such party deems appropriate
in proof of such facts and grounds and shall
send a copy of such statement together with a
copy of such document and other evidence, if
any, to each of the parties to the application;
(b) may require any party to the application
to file additional statement before it at any
stage of the conciliation proceedings;
(c) shall communicate any document
or statement received by it from any
party to the application to the other
party, to enable such other party to
present reply thereto.
(4) When statement, additional statement
and reply, if any, have been filed under sub-
section (3), to the satisfaction of the
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Permanent Lok Adalat, it shall conduct
conciliation proceedings between the parties
to the application in such manner as it thinks
appropriate taking into account the
circumstances of the dispute.
(5) The Permanent Lok Adalat shall, during
conduct of conciliation proceedings under sub-
section (4), assist the parties in their attempt
to reach an amicable settlement of the dispute
in an independent and impartial manner.
(6) It shall be the duty of very party to the
application to cooperate in good faith with the
Permanent Lok Adalat in conciliation of the
dispute relating to the application and to
comply with the direction of the Permanent
Lok Adalat to produce evidence and other
related documents before it.
(7) When a Permanent Lok Adalat, in the
aforesaid conciliation proceedings, is of
opinion that there exist elements of
settlement in such proceedings which may be
acceptable to the parties, it may formulate the
terms of a possible settlement of the dispute
and give to the parties concerned for their
observations and in case the parties reach at
an agreement on the settlement of the
dispute, they shall sign the settlement
agreement and the Permanent Lok Adalat shall
pass an award in terms thereof and furnish a
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copy of the same to each of the parties
concerned.
(8) Where the parties fail to reach at an
agreement under sub-section (7), the
Permanent Lok Adalat shall, if the dispute does
not relate to any offence, decide the dispute."
21.2 Section 22D speaks of the Procedure of
Permanent Lok Adalat and Section 22E says that the
Award of Permanent Lok Adalat to be final.
21.3 Thus, these provisions have made it
extremely easy and every party which choses to
approach the Permanent Lok Adalat for their
settlement, the Award of Permanent Lok Adalat made
either on merit or in the terms of the settlement
agreement shall be final and binding on all the
parties and on persons claiming under them. If these
provisions were resorted to, this could have not only
made the things extremely clear for the parties, but
this would have saved enormous energy and
resources of the judicial system. At the end, certain
directions in this regard may necessitate.
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21.4 This brings this Court to the vital issue of
maintainability of the present petition & entitlement
of the petitioner to get the custody of the children.
Reliance is placed on the decision of the Sejalben
Arpit Shah (supra), where the petitioner had
prayed for writ of Habeas Corpus as according to her,
minor daughter aged 14 months was in unlawful
custody of the respondent-husband. There again, the
matrimonial disputes were between the spouses and
the petitioner mother sought custody of 14 months of
daughter. This Court examined threadbare the law on
the subject of writ of Habeas Corpus and held that
the mother should not be deprived of her right
especially considering the tender age and child being
a girl child. It was her case that she was forced to
leave the matrimonial home and to go to her father's
residence. It was her grievance that respondent No.3-
husband had taken away the daughter.
21.5 The Court extensively examined the law on the
subject to hold thus:
"38. It is well settled that in an application seeking
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a writ of habeas corpus for custody of minor child,
the principal consideration for the court is to
ascertain whether the custody of the child can be
said to be lawful or illegal and whether the welfare of
the child requires that the present custody should be
changed and the child should be left in the care and
custody of someone else. It is equally well settled
that in case of dispute between the mother and
father regarding the custody of their child, the
paramount consideration is welfare of the child and
not the legal right of either of the parties. [See: Dr.
(Mrs.) Veena Kapoor vs. Shri Varinder Kumar Kapoor
(1981) 3 SCC 92 and Syed Saleemuddin vs. Dr.
Rukhsana and others (2001) 5 SCC 247]. It is,
therefore, to be examined what is in the best interest
of the child Priyanshi and whether her welfare would
be better looked after if she is given in the custody of
the appellant, who is her father.
39. In the case of Nil Ratan Kundu, AIR 2009 SC
(Supp) 732 (supra), the Apex Court opined as under:
In selecting a guardian, the Court is exercising
parens patriae jurisdiction and is expected, nay
bound, to give due weight to a child's ordinary
comfort, contentment, health, education, intellectual
development and favourable surroundings. But over
and above physical comforts, moral and ethical
values cannot be ignored. They are equally, or we
may say, even more important, essential and
indispensable considerations. If the minor is old
enough to form an intelligent preference or
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judgment, the Court must consider such preference
as well, though the final decision should rest with the
Court as to what is conducive to the welfare of the
minor.
40. Thus, the Court should avoid a technical and
legalistic view; it should adopt a pragmatic and
realistic view in such a case. Moreover, the Court
acts less as a Court of law, and more as a Court of
equity. For it deals less with legal issues, and more
with a human problem of the parents and the
children. According to the Apex Court, "To repeat,
issues relating to custody of minors and tender aged
children have to be handled with love, affection,
sentiments and by applying human touch to the
problem." Ref. To Nil Ratan Kundu, AIR 2009 SC
(Supp) 732 (supra).
41. The disturbing part of this litigation,
irrespective of the fact whether the custody of
Priyanshi with her father could be termed as unlawful
or otherwise is that the husband projected his wife as
mentally ill and not fit to take care of minor
Priyanshi. As we are dealing with a matter in which
the interest of 14 months old girl is involved, we did
not wanted to take any chance and in such
circumstances, very reluctantly thought fit to subject
the writ applicant to undergo medical examination.
In fact it was very painful to ask a young lady to
undergo tests of such nature. The writ applicant in
Paragraph3.4 of her writ application has stated as
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under:
3.4 Despite continued torture from the family of
Respondent No.3, the petitioner continued to live at
the matrimonial home only with a view to safeguard
the future of Priyanshi. However, on 15.1.2019, the
petitioner was driven out from the matrimonial home
by Respondent No.3 after forcibly taking away the
custody of Priyanshi. The petitioner states that
Priyanshi was forcibly snatched from the hands of
the petitioner and the petitioner was driven out from
the house.
42. We take notice of the fact that the afore noted
averments made in Paragraph3.4 of the writ
application have not been directly or indirectly
refuted by the respondent no.4. This prima facie is
suggestive of the fact that on account of matrimonial
disputes, the writapplicant had to leave her
matrimonial home, but while leaving, she was not
permitted to take alongwith her minor daughter
Priyanshi.
43. As observed by the Supreme Court in Vivek Singh
Vs. Ramani Singh : 2017 (3) SCC 231, in cases of this
nature, where a child feels tormented because of the
strained relations between her parents and ideally
needs the company of both of them, it becomes, at
times, a difficult choice for the court to decide as to
whom the custody should be given. However, even in
such of dilemma, the paramount consideration is the
welfare of the child. However, at times the prevailing
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circumstances are so puzzling that it becomes
difficult to weigh the conflicting parameters and
decide on which side the balance tilts.
44. The Hindu Minority and Guardianship Act, 1956
lays down the principles on which custody disputes
are to be decided. Section7 of this Act empowers the
Court to make order as to guardianship. Section17
enumerates the matters which need to be
considered by the Court in appointing guardian and
among others, enshrines the principle of welfare of
the minor child. This is also stated very eloquently in
Section13 which reads as under:
"13. Welfare of minor to be paramount consideration.
(1) In the appointment or declaration of any person
as guardian of a Hindu minor by a court, the welfare
of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by
virtue of the provisions of this Act or of any law
relating to guardianship in marriage among Hindus, if
the court is of opinion that his or her guardianship
will not be for the welfare of the minor."
45. The Supreme Court in the case of Gaurav Nagpal
v. Sumedha Nagpal, (2009) 1 SCC 42 stated in detail,
the law relating to custody in England and America
and pointed out that even in those jurisdictions,
welfare of the minor child is the first and paramount
consideration and in order to determine child
custody, the jurisdiction exercised by the Court rests
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on its own inherent equality powers where the Court
acts as 'Parens Patriae'. The Court further observed
that various statutes give legislative recognition to
the aforesaid established principles. The Court
explained the expression 'welfare', occurring in
Section13 of the said Act in the following manner:
"51.The word "welfare" used in Section 13 of the Act
has to be construed literally and must be taken in its
widest sense. The moral and ethical welfare of the
child must also weigh with the court as well as its
physical wellbeing.Though the provisions of the
special statutes which govern the rights of the
parents or guardians may be taken into
consideration, there is nothing which can stand in
the way of the court exercising its parens patriae
jurisdiction arising in such cases.
52. The trump card in the appellant's argument is
that the child is living since long with the father. The
argument is attractive. But the same overlooks a
very significant factor. By flouting various orders,
leading even to initiation of contempt proceedings,
the appellant has managed to keep custody of the
child. He cannot be a beneficiary of his own wrongs.
The High Court has referred to these aspects in detail
in the impugned judgments."
46.We understand that the aforesaid principle is
aimed at serving twin objectives. In the first instance,
it is to ensure that the child grows and develops in
the best environment. The best interest of the child
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has been placed at the vanguard of family/custody
disputes according the optimal growth and
development of the child primacy over other
considerations. The child is often left to grapple with
the breakdown of an adult institution. While the
parents aim to ensure that the child is least affected
by the outcome, the inevitability of the uncertainty
that follows regarding the child's growth lingers on
till the new routine sinks in. The effect of separation
of spouses, on children, psychologically, emotionally
and even to some extent physically, spans from
negligible to serious, which could be insignificant to
noticeably critical. It could also have effects that are
more immediate and transitory to long lasting
thereby having a significantly negative repercussion
in the advancement of the child. While these effects
don't apply to every child of a separated or divorced
couple, nor has any child experienced all these
effects, the deleterious risks of maladjustment
remains the objective of the parents to evade and
the court's intent to circumvent. This right of the
child is also based on individual dignity. [Vide Vivek
Sing (Supra)].
47. Second justification behind the 'welfare' principle
is the public interest that stand served with the
optimal growth of the children. It is well recognised
that children are the supreme asset of the nation.
Rightful place of the child in the sizeable fabric has
been recognised in many international covenants,
which are adopted in this country as well.
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Childcentric human rights jurisprudence that has
been evolved over a period of time is founded on the
principle that public good demands proper growth of
the child, who are the future of the nation. [Vide
Vivek Sing (Supra)].
48. The Supreme Court has observed in Bandhua
Mukti Morcha v. Union of India & Ors., (1997) 10 SCC
549:
"4. The child of today cannot develop to be a
responsible and productive member of tomorrow's
society unless an environment which is conducive to
his social and physical health is assured to him.
Every nation, developed or developing, links its
future with the status of the child. Childhood holds
the potential and also sets the limit to the future
development of the society. Children are the greatest
gift to humanity. Mankind has the best hold of itself.
The parents themselves live for them. They embody
the joy of life in them and in the innocence relieving
the fatigue and drudgery in their struggle of daily
life. Parents regain peace and happiness in the
company of the children. The children signify eternal
optimism in the human being and always provide the
potential for human development. If the children are
better equipped with a broader human output, the
society will feel happy with them. Neglecting the
children means loss to the society as a whole. If
children are deprived of their childhood socially,
economically, physically and mentally the nation
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gets deprived of the potential human resources for
social progress, economic empowerment and peace
and order, the social stability and good citizenry. The
Founding Fathers of the Constitution, therefore, have
emphasised the importance of the role of the child
and the need of its best development."
49. Same sentiments were earlier expressed in Rosy
Jacob v. Jacob A.Chakramakka, (1973) 1 SCC 840 in
the following words:
"15. ...The children are not mere chattels : nor are
they mere playthings for their parents. Absolute right
of parents over the destinies and the lives of their
children has, in the modern changed social
conditions, yielded to the considerations of their
welfare as human beings so that they may grow up
in a normal balanced manner to be useful members
of the society..."
50. The role of the mother in the development of
a child's personality can never be doubted. A child
gets the best protection through the mother. It is a
most natural thing for any child to grow up in the
company of one's mother. The company of the
mother is the most natural thing for a child. Neither
the father nor any other person can give the same
kind of love, affection, care and sympathies to a child
as that of a mother. The company of a mother is
more valuable to a growing up female child unless
there are compelling and justifiable reasons, a child
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should not be deprived of the company of the
mother. The company of the mother is always in the
welfare of the minor child.[Vide Vivek Sing (Supra)].
51. The respondent no.3 is a chartered
accountant. It goes without saying that he has
tremendous love and affection towards Priyanshi.
Even in the course of personal interaction with him,
he made himself very clear that he would not be in a
position to live without his daughter Priyanshi. At
that point of time, with folded hands, we requested
him to see that some settlement takes place, even if
he has to sacrifice something very dear to him.
During our interaction with the writapplicant, we
gathered an impression that she wants to live
separately with her husband and Priyanshi. At the
same time, the respondent no.3 is very firm that he
would not leave his parents.
52. We are of the view that the mother should not
be deprived of her right especially considering the
tender age and child being a girl child. The
grandparents may be taking very good care of
Priyanshi, but at the same time, they cannot be a
substitute for natural mother. In fact, there is no
substitute for mother's love in this world. It appears
that the grandparents are old. The respondent no.3
is a professional and must be keeping himself quite
busy as a Chartered Accountant. Considering the
totality of facts and circumstances, the welfare of the
child lies with the mother. At this stage, we deem fit
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to quote few observations of the Supreme Court in
the case of Vivek Singh (Supra) as those are very apt
so far as the case on hand is concerned. In Vivek
Singh (Supra), the Supreme Court had to deal with
almost an identical problem like the one on hand.
The Supreme Court has observed as under:
This Court cannot turn a blind eye to the fact that
there have been strong feelings of bitterness,
betrayal, anger and distress between the appellant
and the respondent, where each party feels that they
are 'right' in many of their views on issues which led
to separation. The intensity of negative feeling of the
appellant towards the respondent would have
obvious effect on the psyche of Saesha, who has
remained in the company of her father, to the
exclusion of her mother. The possibility of appellant's
effort to get the child to give up her own positive
perceptions of the other parent, I.e., the mother and
change her to agree with the appellant's view point
cannot be ruled out thereby diminishing the affection
of Saesha towards her mother. Obviously, the
appellant, during all this period, would not have said
anything about the positive traits of the respondent.
Even the matrimonial discord between the two
parties would have been understood by Saesha, as
perceived by the appellant. Psychologist term it as
'The Parental Alienation Syndrome'. It has at least
two psychological destructive effects:
(I) First, it puts the child squarely in the middle of a
contest of loyalty, a contest which cannot possibly be
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won. The child is asked to choose who is the
preferred parent. No matter whatever is the choice,
the child is very likely to end up feeling painfully
guilty and confused. This is because in the
overwhelming majority of cases, what the child
wants and needs is to continue a relationship with
each parent, as independent as possible from their
own conflicts.
(ii) Second, the child is required to make a shift in
assessing reality. One parent is presented as being
totally to blame for all problems, and as someone
who is devoid of any positive characteristics. Both of
these assertions represent one parent's distortions of
reality.
The aforesaid discussion leads us to feel that
continuous company of the mother with Saesha, for
some time, is absolutely essential. It may also be
underlying that the notion that a child's 4 The
Parental Alienation Syndrome was originally
described by Dr. Richard Gardner in "Recent
Developments in Child Custody Litigation", The
Academy Forum Vol. 29 No.2: The American
Academy of Psychoanalysis, 1985). primary need is
for the care and love of its mother, where she has
been its primary care giving parent, is supported by
a vast body of psychological literature. Empirical
studies show that mother infant "bonding" begins at
the child's birth and that infants as young as two
months old frequently show signs of distress when
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the mother is replaced by a substitute caregiver. An
infant typically responds preferentially to the sound
of its mother's voice by four weeks, actively
demands her presence and protests her absence by
eight months, and within the first year has formed a
profound and enduring attachment to her.
Psychological theory hypothesizes that the mother is
the center of an infant's small world, his
psychological homebase, and that she "must
continue to be so for some years to come."
Developmental psychologists believe that the quality
and strength of this original bond largely determines
the child's later capacity to fulfill her individual
potential and to form attachments to other
individuals and to the human community.
53. The "tender years rule" has found statutory
recognition and the legislative policy underlying
thereto is based not only on the social philosophy but
also in realities and points in the direction that the
custody of minor children who have not completed
the age of 5 years should ordinarily be with the
mother irrespective of the fact that the father is the
natural guardian of such minors. When moved for a
writ of Habeas Corpus and in exercising the general
and inherent jurisdiction in a child custody case, the
Court is required to bear this legislative prescription
in mind while judging the issue as to the welfare of
the child. In the present case, Priyanshi is just 14
months old. The parties are Hindus and the "tender
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years rule", as statutorily recognized, is immediately
attracted in their case and should not be ignored in
judging her welfare.
54. In view of the aforesaid discussion, this petition
succeeds and is hereby allowed. The respondent
no.3 is directed to hand over the custody of the
minor Priyanshi to her mother I.e. the writ applicant
at the earliest. We would like to make it clear,
however, that the order is of a temporary nature and
that it is open to review according to the
circumstances that may arise in future and that in
such circumstances, the parties will be at liberty to
apply to the court of competent jurisdiction for an
appropriate relief. We are also of the view that the
best interests of the minor children require that they
should not be altogether deprived of the paternal
affection and company and, therefore, it shall be
open for the respondent no.3 to visit the parental
home of the writ applicant to see and meet Priyanshi
at any time. If the respondent no.3 wants to meet
Priyanshi, then he shall not be restrained by the writ
applicant or any of her family members."
22. This Court also in case of DIVYAKUMARI
KEVALKUMAR BHATT Versus STATE OF GUJARAT had
handed over the custody of the child who has aged 07
months to mother. Some of the findings and observations
of the Court are necessary to be reproduced.
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"7.We could notice the corpus- child(Avyansh) with the
grandparents in healthy condition. We also could notice
that petitioner mother joined from the Lunavada Court
through Video Conferencing with her paternal
grandfather. Extensively both the learned advocates
are heard and the litigating parties are also availed an
opportunity on the very issue of custody of the child to
present their rival contentions. Without entering into
allegations of either sides, it is quite apparent that
child continued to be with the respondent No.3 -
husband who resisted handing over of the custody on
the ground of he being a premature baby and again,
due to pandemic because of Covid-19 viruses, the
respondents are not desirous of sending the child to
mother who is at Lunavada, ostensibly because of their
concern of the child in the event of any health issue. At
the same time, we could notice that mother is
thoroughly agitated and fervently urges that medical
facilities are also available at Lunavada and in
surrounding area.
It is alleged that she left home on her own, leaving
the child behind, according to respondent No.3
whereas,as per the say of the petitioner herself, she
was driven out when the child was only five months of
age. And, almost three months have passed she is
running from pillar to post to get the custody of child
who is only 7 months old. Noticing extremely young
age of child who simply could not be kept away from
his mother, we deem it necessary to exercise writ
jurisdiction to accede to the request of the Petitioner
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without at this stage granting the request of learned
advocate Ms.Pandya to file the affidavit in reply
formally as this surely is a nature of litigation where
parties can be permitted luxury of long drawn
pleadings and litigation only once the custody of the
child is handed over to the mother. Let this happen at
the earliest. It is a birth right of the child to be
embraced in the warmth and protection of
motherhood. His foundation of health and key nutritive
diet is mother's milk. He cannot be deprived of these
valuable requirements. For the better and the fullest
health, growth and development of the child, ordinarily
mother's custody is a must. The child has no voice of
his nor means nor capability to knock the doors of
justice for establishing his right of welfare. It is an
axiomatic truth that both the parents, father and
mother are required to look after the welfare of the
minor and are treated as natural guardians and yet,
rigid insistence of statutory interpretation would not be
welcomed for the welfare of such a young child. It is
trite law that the custody of child at least till the age of
five needs to be with mother.
In re Mc Grath(1893, 1 Ch.143) Lindsey, L.J.
Observed, "The dominant matter for the consideration
of the court is the welfare of the child. But the welfare
of a child is not to be measured by money only, nor by
physical comfort only. The word 'welfare' must be
taken in its widest sense. The moral and religious
welfare of the child must be considered as well as its
physical well-being. Nor can the ties of affection be
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disregarded."
8. Considering the fact that the petitioner - mother is
residing with the grandparents and also noticing the
concern of Respondent No.3 for the child, let him carry
the child to the Petitioner mother and he can also
ensure generating a conducive atmosphere, keeping
aside all other contentious issues which make their
relationship sore. Bearing in mind the disputes
between the spouses, we are of the opinion that this
matter requires presence of some authority which can
monitor process of smooth handing over and,
therefore, it is directed that the child shall be handed
over to the petitioner - mother, at the earliest, at the
District Court, Lunawada in presence of Learned
Principal District Judge. Let the same be done on or
before 06.11.2020. "
23. Remembering Khalil Gibran 'on children' who
reminds the parents "your children are not your children.
They are the sons and daughters of life's longing for itself.
They come through you but not from you and though they
are with you yet they belong not to you...."
23.1 Bearing in mind his words that "their souls dwell
in the house of tomorrow" and the ration laid down as also
the fact that it is the husband and the family of the husband whose
custody is sought to be challenged by the petitioner, this issue needs
redressal.As held by the Courts even while taking note of the special
statute while speaking of the rights of the parents and guardian, the
Court is always obligated to exercise its parens patriae jurisdiction
and shall need to give necessary weightage to
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the child's comfort, the contentment, intellectual, moral,
ethical and physical development and all other
surrounding circumstances. The best interest of the child
is the welfare of the child which alone needs to govern the
court's decision.
24. So far as the Hindu Minority & Guardianship Act is
concerned, the tender years' rule requires that the
custody of the children of tender age must be with the
mother and mother's protection for children is
indispensable. Section 6 of the said Act speaks of natural
guardian for a girl child of age of five years to be her
mother ordinarily and section 13 of the said Act provides
that in the appointment or declaration of any person as
guardian of a Hindu minor by a court, the welfare of the
minor shall be the paramount consideration. It thus
speaks of paramount consideration of the child while
exercising powers to declare guardian. The Apex Court in
the case of Smt. Surindar Kaur Sandhu vs Harbax
Singh Sandhu & Anr, reported in 1984 (3) SCC 698 has
held that provision of Section 6 cannot supersede the paramount
consideration as to what is conducive to the welfare of the minor.
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25. In the matter on hand, the requirement for this Court to
entertain this petition also is in exceptional circumstances
when the society is in the grip of the pandemic due to COVID-
19 virus and Family Courts were not taking up custody matters
and were dealing in a limited manner with miscellaneous
matters. Again, the maintainability of the petition under Article
226 of the Constitution in the custody matters is well discussed
& established in the above referred matters and deserves no
independent findings and thus, when a young child is deprived
of the warmth of the natural guardian mother, no objection in
this respect deserve any entertainment.
26. Again, in the instant case, as could be noticed, the dispute is
with regard to giving of the custody of the child. There is no dispute
with regard to divorce between the parties, taken customarily,
however, the child's custody is a serious debate, which has no
written proof at all. There are rival contentions on both the sides
and admittedly, the Siddhpur Rabari Community also has no
written constitution for it to mediate and as mentioned herein
above in detail, none of the leaders had any knowledge as
to how the law operates when the court interacted with
them through video conferencing. In such circumstances,
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this Court is inclined to handover the custody to the
mother from the overall consideration of age, family
circumstances, job of the father, at Kutchh away from his
family, his engagement status and his marriage in a near
future coupled with complete absence of any writing with
regard to the custody of his child and rival stands of
community leaders and more particularly, the report of
learned judge, City Civil and Sessions Court, Ahmedabad
who has made very clear that the child was very
comfortable with the mother and she longed for her. The
respondent No.4-father of the child herein though has
shown his willingness to reunite with the petitioner, apart
from her own denial expressing inability to live together as
spouses due to past experiences, he also has engaged
himself and as stated in a near future, is to get married to
his fiancée. The divorce has not taken much time and he
chose to engage himself elsewhere, although he is entitled
and has expressed that for looking after the custody of the
child, it would be necessary for him to get married, the
Court may not get impressed with such reason . The fact
remains that the mother has pleaded all along that she
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at no point of time has given the custody of the child . She
never questioned the divorce and his getting married
elsewhere for starting his life afresh, whose engagement
is also an additional reason that when the mother is so
keen and is claiming for the daughter's custody, corpus
cannot be thrust upon the wife to be, of the respondent
No.4, when the natural mother and guardian is longing to
get her custody. There are no disabling grounds legally
existing for denying the custody of girl child to the mother.
What has weighed with the court not only from legalistic
and technical considerations but also from pragmatic and realistic
aspects that handing over of the custody to the Petitioner mother
would best serve the interest of the child. There could be no
substitute of mother's unbound care and unconditional love for the
child much less the paternal grand parents.
27. So far as the amount of Rs.9.50 Lakh is concerned, that
appears to be the matter of concern for one and all, which according
to the family of the respondent No.4 is the sum decided for handing
over the child's custody, which is a hurdle. Either it could be
for the permanent alimony of the wife or if the child's custody
handed over to the petitioner-mother, the same could be towards
the child's maintenance. For retaining the custody of the child
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that could not have been the amount of Rs.9.50 Lakh
given by the father. One set of affidavits state that while
imposing fine for wrongdoing, husband has paid this.
Without entering into the aspect of labelling the head for
labelling the head for this amount, it is to be directed to
be fixed deposited for the welfare of the child, which shall
be deposited by the parents of the petitioner within 30
days of the date of this order for which they have agreed
too and the same shall be fixed deposited in the joint
name of the corpus and mother for the period of 7 years
and the amount shall be utilized for her higher education.
If at all anytime issue of maintenance arises, the court
would regard this sum earmarked for the higher studies of
the corpus.
28. Resultantly, this petition is allowed. Custody of the
corpus shall be with the petitioner mother and the same
is to be handed over to the petitioner mother on
30.06.2021 at around 11:00 a.m. at City Civil & Sessions
Court, Ahmedabad in presence of learned Principal Judge,
City Civil and Sessions Court, Ahmedabad.
28.1. Amount of Rs.9.50 lakh (Rupees Nine lakhs
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and fifty thousand only) shall be deposited by the
father of the petitioner before this Court within a
period of two weeks which shall be fixed deposited
for the period of seven years in the joint name of the
petitioner and corpus. Without the permission of the
Court, during this period, the amount shall not be
withdrawn. The said amount shall be used for the
educational purpose of the corpus.
28.2 Let the father have visitation right, if he so
chooses, twice in the month on a Sunday in the
morning between 10:00a.m. to 12:00p.m. This can be
further worked out in details by the parties and in the
event of any hitch, it shall be sorted out by the
Member Secretary, the Gujarat State Legal Service
Authority.
29. A word of caution to the community leaders who
rather than taking upon themselves this task in future,
without any legal background, should approach the Taluka
Legal Services Authority or the District Legal Services
Authority under the Legal Services Authorities Act, 1987
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where any compromise in Lok Adalat and/or at pre -
litigation stage shall be worked out, culminating into the
decree of the Court. Not only the right guidance would
flow from the Legal Services Authority, but that would also
have a legal and binding effect for any such compromise
to govern the rights of the parties. The Member Secretary,
GSLSA may ensure spreading of legal awareness in this
direction for better handling of the situation by the
community leaders. The petition is disposed of
accordingly.
(SONIA GOKANI, J)
(GITA GOPI,J)
30. Today in the open Court when the matter is
pronounced, learned advocate, Mr.Rangrez appearing for
the respondent No.4 has made a request for the stay of
this order to enable the respondent No.4 to approach the
Apex Court to question this judgment and order.
30.1 This has been strongly objected to by the
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learned advocate, Ms.Archana Acharya appearing for the
petitioner.
30.2 Considering the age of the child and for the
reasons which have satisfied us to handover the custody
to the petitioner mother, we do not accede to the request
of Respondent no.4.
31. The child shall be brought by the family/
Respondent no.4 at Siddhpur Police Station who along
with the lady officer, shall be brought to the City Civil and
Sessions Court, Ahmedabad. Child shall be accompanied
by the respondent father, if he so wishes, who shall hand
over the corpus to the applicant-mother in presence of
learned Principal Judge, City Civil and Sessions Court,
Ahmedabad. If the petitioner mother requires any aid of
police, the learned Principal Judge shall make necessary
arrangement.
32. Criminal Misc. Application No.2 of 2021 stands
disposed of in view of the judgment rendered in the case
of Special Criminal Application No.9007 of 2000.
(SONIA GOKANI, J)
(GITA GOPI,J)
M.M.MIRZA
