Gujarat High Court

Poonamben Hasmukhbhai Brambhatt vs Varun Gaurangbhai Patel on 6 January, 2022

Bench: Mauna M. Bhatt

    R/SCR.A/4482/2021                            JUDGMENT DATED: 06/01/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
            R/SPECIAL CRIMINAL APPLICATION NO. 4482 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SONIA GOKANI

and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT

==========================================================

1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                   POONAMBEN HASMUKHBHAI BRAMBHATT
                                Versus
                   VARUN GAURANGBHAI PATEL & 2 other(s)
==========================================================
Appearance:
MR VAIBHAV A VYAS(2896) for the Applicant(s) No. 1
MR SHIVANG M SHAH(5916) for the Respondent(s) No. 1
MS DHARA M SHAH(5546) for the Respondent(s) No. 1
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 3
MR H K PATEL, ADDL.PUBLIC PROSECUTOR(2) for the Respondent(s) No.
2
==========================================================
    CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
          and
          HONOURABLE MRS. JUSTICE MAUNA M. BHATT
                        Date : 06/01/2022
                       ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. Present petition is preferred under

Article 226 of the Constitution of

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

India seeking issuance of the writ of

habeas corpus for production of the

corpus minor son Raghav and handing

over his legal and lawful custody to

the petitioner mother in the

following factual background.

1.1. The petitioner's marriage with the

respondent No.1 had been solemnized

on 25.02.2012 at Ahmedabad as per the

Hindu Rites and Rituals. His son

Raghav was born out of the said

wedlock on 17.12.2014. The disputes

and the differences between the

spouses had led to the decree of

divorce passed in a Family Suit

No.140 of 2020, this was consent

decree under Section 13 (B) of the

Hindu Marriage Act, 1955. Parties

mutually agreed to handover the

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

custody of the child to the

petitioner, who is an educated mother

having qualification of MBA in

Finance and the father also agreed to

the amount of maintenance and

education expenses for the child. The

judgment and decree of dissolution of

the Family Court is dated 26.08.2020.

The petitioner and minor son started

residing separately from 26.11.2016,

when the child was barely two years

of age. The decree of dissolution of

marriage came on 26.08.2020 where the

son was merely two years of age.

1.2. It is the case of the petitioner

that in the month of December, 2020,

she was to remarry with one Bimalsharan

Pankajkumar Brahmbhatt. On 03.12.2020

the respondent No.1 took minor son

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

Raghav with him at his home and she

had not objected to the same thinking

that respondent No.1 will return the

custody of the child after a few

days. She got remarried on 07.12.2020

and went for the registration of the

marriage, which is now compulsory.

        She realised             that the first marriage

        of          Mr.Brahambhatt              had          not            been

legally desolved and thus, the second

marriage could not be performed

legally and hence, the Regular Civil

Suit No.18 of 2021 before the

Principal Senior Civil Judge,

Rajpipla under Section 34 of the

Specific Relief Act seeking to

declare the marriage as null and void

has been preferred. The suit was

withdrawn eventually with the

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

permission of to file appropriate

proceedings under the Hindu Marriage

Act for dissolving the marriage and

accordingly, the order was passed on

02.04.2021.

1.3. It is the say of the petitioner

that she made a request to respondent

No.1 to handover the custody of the

child as per the judgment of the

Family Court in Family Suit No.140 of

2020. He chose not to return the

custody of the child.

1.4. The respondent No.1 filed CMA No.95

of 2020 under sections 7 and 25 of

the Guardian and Wards Act praying to

take the permanent custody of the

minor son Raghav and to appoint a

guardian on 17.12.2020. She appeared

and replied by stating the correct

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

facts on 25.03.2020. She had in the

meantime, preferred a writ petition

being Special Civil Application

(Stamp) No.10180 of 2021 seeking the

custody of the minor child, which was

numbered later and she had also made

a grievances of not allowing her to

meet the child till 13.03.2021 when

the family on both the sides had

intervened. She also preferred

Special Civil Application NO.6948 of

2021 seeking to question the action

of the respondent No.1 of preferring

an application under the Guardians

and Wards Act when the decree of the

Family Court is still in existence.

        This          Court   by      way          of     an        interim

        relief          directed             the     Family              Court

concerned not to hear the CMA No.95

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

of 2020, noticing the preferring of

habeas corpus petition by the

petitioner, such order came to be

passed on 29.04.2021.

2. Prayers sought for in this petition

are as follow:

"8...

(a) This Honourable Court may be pleased to issue writ of Habeas Corpus or any appropriate writ, order or direction directing the respondents herein to produce the Corpus i.e. Minor son Raghaav before this Hon'ble Court and further be pleased to set Minor Son Raghaav at liberty by handing over his legal and lawful custody to the petitioner-mother as per order, judgement and decree dated 26/08/2020 passed by the Ld. Family Court, in Family Suit No. 140 of 2020, which is at Annexure-A;

(b) This Honourable Court may be pleased to issue writ of Habeas Corpus or any appropriate writ, order or direction to direct the respondent no.1herein to forthwith handover the custody of Corpus i.e. Minor

3. This Court at the time of issuance of

notice directed the police authority

to produce the corpus before this

Court through the video conference

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

from the District and Sessions Court,

Ahmedabad. On 15.06.2021, it was also

noted that the custody of the corpus

is with the respondent No.1 and

understanding had been arrived at

between the parties for an interim

arrangements and the presence of the

corpus was dispensed with. With the

further direction, the respondent

No.1 was to produce the corpus as and

when required. The Co-ordinate Bench

also chose to meet the corpus and

once again the child was called for

meeting on 08.10.2021 as per the

order dated 01.10.2021.

4. We notice further affidavit on the

part of the petitioner, where she has

made a grievance that the son has

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

been tutored against her by the

father and she has not allowed to

freely meet the son. According to

her, even when she has permitted to

meet, there is no privacy and all the

conversations with her son are

constantly audited, monitored and

listened to by the respondent No.1

and his family members. She has also

narrated certain instances as to how

the child is being tutored and

brainwashed by the father for holding

on to the alleged illegal custody. We

shall choose not to go into the

detailed narration of these instances

of the mother. She has insisted that

the role of the mother in the

development of the child's

personality can never be questioned.

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

The child gets the best education and

protection through the mother and she

being a natural guardian, the child

cannot be deprived of the company of

the mother.

5. The Court also noticed that there are

certain correspondence through

whatsapp which are forming the part

of record. We have also chosen not to

delve into the same for the simple

reason that there are all going to

the factual narration and its

explanations.

5.1. The affidavit-in-reply has been

filed by the respondent No.1 ex-

husband of the petitioner. As

contended by him that the petitioner

has not approached with the clean

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

hands as has attempted to mislead the

Court by narrating incorrect facts

and therefore, the writ of habeas

corpus should not be lie.

5.2. According to him, both the parties

have equal educational qualifications

and compatibility. The families of

both the parties along with the

petitioner and the respondent met on

25.02.2012 the marriage between the

petitioner and respondent No.1 was

solemnized. The son was born,

undoubtedly out of the said wedlock

on 17.12.2014. The parties started

living separately due to the disputes

which had cropped up and eventually,

on 18.01.2020 by mutual consent the

divorce proceedings being Family Suit

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

No.140 of 2020 was preferred under

Section 13(B) of the Hindu Marriage

Act. The meetings which were held to

decide the terms and conditions for

the settlement of mutual consent

divorce, noticing that the petitioner

being extremely insecure about Raghav

that the Raghav may prefer to go back

to his father's place and also

noticing overall environment and the

love and care that was being given,

she was over possessive and was not

ready to give the necessary required

visitation right to the respondent

No.1. The respondent No.1 agreed to

the petitioner's requirement of

letting go the kid's visitation right

in writing and requested to send

Raghav as and when she was

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

comfortable to do so. It is only to

avoid the rifts between the parties

every time there will be a visit of

the minor child that this was

decided.

6. It is further his say that because of

natural love and affection from time

to time the son had gone to him to

stay for a few days and he also

visited the grandparents after the

decree was passed. From 16.07.2020

to 10.08.2020, the petitioner was

diagnosed positive with Covid-19

virus and the minor was staying with

respondent No.1 at his house and

there was no one at the petitioner's

house to take care of him. The

petitioner also had agreed to that

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

arrangement.

7. On 11.10.2020 the petitioner met the

respondent No.1 multiple times and

inquired whether he is interested to

take the custody of the minor son

since it was becoming difficult for

her to look-after him. Since it was a

question of minor son and with an

intention to see that his life did

not get disturb, the respondent No.1

asked the petitioner to thing over it

again and to take a final decision.

8. Again in the 3rd week of November, 2020 she met the respondent No.1 and requested to take the custody of the minor son and she was ready to complete legal formalities and the documentation requirement for the same. The respondent No.1 suggested that more than legal documentation, the mental status of the minor son

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

was and therefore, suggested for the gradual shift from her place to the respondent No.1's place.

8.1. According to him, he got a surprise

call on 03.12.2020 from the

petitioner at around 08:15p.m. and

was asked to take the son Raghav with

him to stay for a weekend and drop

him back to the petitioner's house

after two days on 06.12.2020.

9. On 07.12.2021 when the respondent was

to drop the child back in the morning

he received a call from her where she

asked him not to drop the child back

and keep him with father (himself)

for a few more days. She informed

that she had some developments and

will inform the respondent No.1

later.

10. On 08.12.2020 also she called up and

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

in the conversation which lasted for

about 45 minutes, the family of the

respondent No.1 came to know about

her remarriage and hence, she wanted

a son to be with the respondent No.1.

11. On 17.12.2020, the respondent No.1

moved a Civil Misc.Application No.95

of 2020 under Sections 7 and 25 of

the Guardians and Wards Act, 1955.

Though the petitioner wanted to

handover the custody of the minor son

to the respondent No.1, she was not

coming to any final conclusion. It is

contended that she had come out with

the false statement and she was not

allowed to meet or to stay in touch

with Raghav. She was constantly

permitted to do so and lastly she did

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

on 25.05.2021. The petitioner met

minor son on 14.03.2021, 21.03.2021,

20.04.2021, 09.05.2021 and

25.05.2021. The numerous video calls

also had happened between the mother

and the child.

12. It has therefore urged by the

respondent No.1 that the custody of

the child cannot be said to be

unlawful or illegal and whether the

welfare of the child required the

present custody should be left in the

care of somebody else shall need to

be decided in proper proceedings

which shall be not in the writ

jurisdiction. His academic graph also

has gone substantially high after he

resides with the respondent No.1.

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

13. Reliance is placed on the decision of

the Apex Court rendered in case of

Tejaswini Gaud and Ors. Vs. Shekhar

Jagdish Prasad Tewari and ors,

reported in 2019 7 SCC 42 where the

Apex Court said that the habeas

corpus petition is not to justify or

examine the legality of the custody

of the minor and ordinary remedy lies

only under the Hindu Minority and

Guardianship Act.

14. We have extensively heard the learned

senior advocate, Mr.Joshi assisted by

the learned advocate, Mr.Vaibhav Vyas

and learned senior advocate,

Mr.Shelat assisted by the learned

advocate, Ms.Dhara Shah for the

respondent No.1.

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

15. Both have as per the elaborate

pleadings made have put forth the

submissions without elaborating the

same firstly the question that would

need to be decided by this Court is

as to whether the writ petition would

lie in the circumstances which have

been brought on the record before

this Court.

16. The             Apex   Court        in          case     of       Yashita

        Sahu         vs.    State              of     Rajasthan                 and

others, reported in (2020) 3 SCC 67

while considering the scope of

Article 226 of the Constitution of

India and maintainability of writ of

habeas corpus the Apex Court held

that the writ of habeas corpus would

lie and it is too late in the day to

urge that a writ of habeas corpus is

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

not maintainable if the child is in

the custody of another parent. The

law in this regard according to the

Apex Court has developed a lot over a

period of time but now it is a

settled position that the court can

invoke its extraordinary writ

jurisdiction for the best interest of

the child. Before the Apex Court the

wife had brought the minor to India

from USA in violation of the orders

of the jurisdictional court in the

USA, her custody of the child, the

Court has held not to be strictly

legal. However, the High Court when

had directed the wife to go back to

USA, the Court had intervened and

said that the wife is an adult and no

court can force her to stay at a

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

place where she does not want to stay

by holding that the custody is a

different issue, but while deciding

the issue of custody of the child, no

direction can be issued to the adult

spouse to go and live with the other

strained spouse in writ jurisdiction

of the Court. Apt would be to refer

to some of the findings and

observations in this regard.

17. "10 We need not refer to all decisions in this regard but it would be apposite to refer to the following observations from the judgment in Nithya Anand Raghavan (supra):

46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the court, in each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised.

47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private Respondent named in the writ petition) 11 Further, in the case of Kanika Goel vs. State of Delhi, 2018 9 SCC 578 it was held as follows:

34. As expounded in the recent decisions of this Court, the issue ought not to be decided on the basis of rights of the parties claiming custody of the minor child but the focus should constantly remain on whether the factum of best interest of the minor child is to return to the native country or otherwise. The fact that the minor child will have better prospects upon return to his/her native country, may be a relevant aspect in a substantive proceedings for grant of custody of the minor child but not decisive to examine the threshold issues in a habeas corpus petition. For the purpose of habeas corpus petition, the Court ought to focus on the obtaining circumstances of the minor child having been removed from the native country and taken to a place to encounter alien environment, language, custom, etc. interfering with his/her overall growth and grooming and whether continuance there will be harmful 12 In the present case since the wife brought the minor to India in violation of the orders of the jurisdictional court in USA, her custody of the child cannot be said to be strictly legal. However, we agree with the learned counsel for the appellant that the High Court could not have directed the

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

appellant wife to go to the USA. The wife is an adult and no court can force her to stay at a place where she does not want to stay. Custody of a child is a different issue, but even while deciding the issue of custody of a child, we are clearly of the view that no direction can be issued to the adult spouse to go and live with the other strained spouse in writ jurisdiction.

Comity of Courts 13 In the fast shrinking world where adults marry and shift from one jurisdiction to another there are increasing issues of jurisdiction as to which country s courts will have jurisdiction. In many cases the jurisdiction may vest in two countries. The issue is important and needs to be dealt with care and sensitivity. Though the interest of the child is extremely important and is, in fact, of paramount importance, the courts of one jurisdiction should respect the orders of a court of competent jurisdiction even if it is beyond its territories. When a child is removed by one parent from one country to another, especially in violation of the orders passed by a court, the country to which the child is removed must consider the question of custody and decide whether the court should conduct an elaborate enquiry on the question of child s custody or deal with the matter summarily, ordering the parent to return the custody of the child to the jurisdiction from which the child was removed, and all aspects relating to the child s welfare be investigated in a court in his/ her own country.

18. 14 Reference in this regard may be made to the judgment in Elizabeth Dinshaw (supra) wherein this Court was dealing with a case where the wife was an American citizen whereas the husband was a citizen of India. They got married in America and a child was born to them in the year 1978. In 1980, differences arose between the couple and the wife filed a petition for divorce. The jurisdictional court in America had dissolved the

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

marriage by a decree of divorce on 23.04.1982 and by the same decree it was directed that the wife would have the care, custody and control of the child till he reaches the age of 18 years. The husband was given visitation rights. Taking advantage of the weekend visitation rights, the husband picked up the child from school on 11.01.1986 and brought him to India. The wife filed a petition under Article 32 of the Constitution of India before this Court. Not only was the petition entertained, but the same was allowed and we would like to refer to certain important observations of this Court in Para 8:

8. Whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. We have twice interviewed Dustan in our chambers and talked with him. We found him to be too tender in age and totally immature to be able to form any independent opinion of his own as to which parent he should stay with. The child is an American citizen. Excepting for the last few months that have elapsed since his being brought to India by the process of illegal abduction by the father, he has spent the rest of his life in the United States of America and he was doing well in school there. In our considered opinion it will be in the best interests and welfare of Dustan that he should go back to the United States of America and continue his education there under the custody and guardianship of the mother to whom such custody and guardianship have been entrusted by a competent court in that country. We are also satisfied that the petitioner who is the mother, is full of genuine love and affection for the child and she can be safely trusted to look after him, educate him and attend in every possible way to his proper upbringing. The child has not taken root in this country and he is still accustomed and

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

acclimatized to the conditions and environments obtaining in the place of his origin in the United States of America. The child s presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child in some school in Pune. The conduct of the father has not been such as to inspire confidence in us that he is a fit and suitable person to be entrusted with the custody and guardianship of the child for the present. In V. Ravi Chandran (Dr.) (2) vs. Union of India (UOI) and Ors., 2010 1 SCC 174 it was held as follows:

29. While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, the court in the country to which child has been removed must first consider the question whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to child's welfare be investigated in a court in his own country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of child including stability and security, loving and understanding care and guidance and full development of the child's character, personality and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case.

30. However, in a case where the court decides to exercise its jurisdiction summarily to return the

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

child to his own country, keeping in view the jurisdiction of the court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interest of the child .

15 In Nithya Anand Raghavan (supra), this Court took the following view:

42. The consistent view of this Court is that if the child has been brought within India, the courts in India may conduct: (a) summary inquiry; or (b) an elaborate inquiry on the question of custody. In the case of a summary inquiry, the court may deem it fit to order return of the child to the country from where he/she was removed unless such return is shown to be harmful to the child. In other words, even in the matter of a summary inquiry, it is open to the court to decline the relief of return of the child to the country from where he/she was removed irrespective of a pre existing order of return of the child by a foreign court. In an elaborate inquiry, the court is obliged to examine the merits as to where the paramount interests and welfare of the child lay and reckon the fact of a pre existing order of the foreign court for return of the child as only one of the circumstances. In either case, the crucial question to be considered by the court (in the country to which the child is removed) is to answer the issue according to the child s welfare. That has to be done bearing in mind the totality of facts and circumstances of each case independently. Even on close scrutiny of the several decisions pressed before us, we do not find any contra view in this behalf. To put it differently, the principle of comity of courts cannot be given primacy or more weightage for deciding the matter of custody or for return of the child to the native State.

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

Thereafter, another bench of this Court in Lahari Sakhamuri (supra), while interpreting the judgment in Nithya Anand Raghavan (supra) held as follows :

41 the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child etc., cannot override the consideration of the best interest and the welfare of the child and the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child. 16 We are of the considered view that the doctrine of comity of courts is a very healthy doctrine. If courts in different jurisdictions do not respect the orders passed by each other it will lead to contradictory orders being passed in different jurisdictions. No hard and fast guidelines can be laid down in this regard and each case has to be decided on its own facts. We may however again reiterate that the welfare of the child will always remain the paramount consideration."

19. The decision of the Apex Court in

case of Tejaswini Gaud (supra) also

emphatically specified as to when

the writ jurisdiction would lie in

case of custody of the minor

child.The Apex Court has held that

the writ of habeas corpus is a

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

prerogative process for securing the

liberty of the subject by affording

an effective means of immediate

release from an illegal or improper

detention. The writ also extends its

influence to restore the custody of a

minor to his guardian when wrongfully

deprived of it. The detention of a

minor by a person who is not entitled

to his legal custody is treated as

equivalent to illegal detention for

the purpose of granting writ,

directing the custody of the minor

child. For restoration of the custody

of a minor from a person who

according to the personal law, is not

legal or natural guardian in an

appropriate cases, the writ court has

jurisdiction. It is also further held

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

that the habeas corpus proceedings is

not to justify or examine the

legality of the custody. It is a

medium through which the custody of

the child is addressed to the

discretion of the court.

20. "13 Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.

21. 14 In Gohar Begum where the mother had, under the personal law, the legal right to the custody of her illegitimate minor child, the writ was issued. In Gohar Begum, the Supreme Court dealt with a petition for habeas corpus for

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

recovery of an illegitimate female child. Gohar alleged that Kaniz Begum, Gohar s mother s sister was allegedly detaining Gohar s infant female child illegally. The Supreme Court took note of the position under the Mohammedan Law that the mother of an illegitimate female child is entitled to its custody and refusal to restore the custody of the child to the mother would result in illegal custody of the child. The Supreme Court held that Kaniz having no legal right to the custody of the child and her refusal to make over the child to the mother resulted in an illegal detention of the child within the meaning of Section 491 Cr.P.C. of the old Code. The Supreme Court held that the fact that Gohar had a right under the Guardians and Wards Act is no justification for denying her right under Section 491 Cr.P.C. The Supreme Court observed that Gohar Begum, being the natural guardian, is entitled to maintain the writ petition and held as under:-

7. On these undisputed facts the position in law is perfectly clear. Under the Mohammedan law which applies to this case, the appellant is entitled to the custody of Anjum who is her illegitimate daughter, no matter who the father of Anjum is. The respondent has no legal right whatsoever to the custody of the child. Her refusal to make over the child to the appellant therefore resulted in an

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

illegal detention of the child within the meaning of Section 491. This position is clearly recognised in the English cases concerning writs of habeas corpus for the production of infants.

In Queen v. Clarke (1857) 7 EL & BL 186: 119, ER 1217 Lord Campbell, C.J., said at p. 193:

But with respect to a child under guardianship for nurture, the child is supposed to be unlawfully imprisoned when unlawfully detained from the custody of the guardian; and when delivered to him, the child is supposed to be set at liberty.

The courts in our country have consistently taken the same view. For this purpose the Indian cases hereinafter cited may be referred to. The terms of Section 491 would clearly be applicable to the case and the appellant entitled to the order she asked.

8. We therefore think that the learned Judges of the High Court were clearly wrong in their view that the child Anjum was not being illegally or improperly detained. The learned Judges have not given any reason in support of their view and we are clear in our mind that view is unsustainable in law.

10. We further see no reason why the appellant should have been asked to proceed under the

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

Guardian and Wards Act for recovering the custody of the child. She had of course the right to do so. But she had also a clear right to an order for the custody of the child under Section 491 of the Code. The fact that she had a right under the Guardians and Wards Act is no justification for denying her the right under Section 491. That is well established as will appear from the cases hereinafter cited. (Underlining added)

15 In Veena Kapoor, the issue of custody of child was between the natural guardians who were not living together. Veena, the mother of the child, filed the habeas corpus petition seeking custody of the child from her husband alleging that her husband was having illegal custody of the one and a half year old child. The Supreme Court directed the District Judge concerned to take down evidence, adduced by the parties, and send a report to the Supreme Court on the question whether considering the interest of the minor child, its mother should be given its custody.

22. 16 In Rajiv Bhatia, Rajiv Bhatia v. Govt. of NCT of Delhi and others (1999) 8 SCC 525, the habeas corpus petition was filed by Priyanka, mother of the girl, alleging that her daughter was

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

in illegal custody of Rajiv, her husband s elder brother. Rajiv relied on an adoption deed. Priyanka took the plea that it was a fraudulent document. The Supreme Court held that the High Court was not entitled to examine the legality of the deed of adoption and then come to the conclusion one way or the other with regard to the custody of the child.

23. 17 In Manju Malini where the mother filed a habeas corpus petition seeking custody of her minor child Tanishka from her sister and brother- in-law who refused to hand over the child to the mother, the Karnataka High Court held as under:-

24. The moment respondents 1 and 2 refused to handover the custody of minor Tanishka to the petitioner the natural and legal guardian, the continuation of her custody with them becomes illegal detention. Such intentional act on the part of respondent Nos.1 and 2 even amounts to the offence of kidnapping punishable under S.361 of IPC. Therefore there is no merit in the contention that the writ petition is not maintainable and respondent Nos.1 and 2 are in legal custody of baby Tanishka.

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

18 Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

19 In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus."

24. While laying the emphasis that the

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

ordinary remedy lies under Hindu

Minority and Guardianship Act or the

Guardians and Wards Act, the Apex

Court has emphasized that what is

important is the welfare of the

child. The thrust is on a preliminary

inquiry on the basis of the

affidavits before the writ court

where as the detailed inquiry can be

conducted by the Civil Courts and

therefore the Apex Court says that in

exceptional cases, the rights of the

parties to the custody of the minor

will be determined in exercise of

extraordinary jurisdiction.

25. The Apex Court in case of Kumar V.

Jahgirdar vs. Chethana Ramatheertha,

reported in (2004) 2 SCC 688 was

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

considering the matter where the

dispute between the married couple

led to the decree of divorce obtained

by the mutual consent where the

custody of child of 09 years was the

issue. The evidence led by the

parents of the child before the

Family Court, Bangalore resulted into

the conclusion that the wife married

to a famous cricketer and is living a

different style of life involving of

frequent tours with the second

husband for attending the cricketing

event. The child may develop the

distance and dislike for a natural

father. The exclusive custody of the

child was directed to be given to the

natural father with only right of

visitation to the mother every week

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

and to keep the child with her

overnight on two Sundays in a month.

The High Court took a different view

and reversed the judgment on the

basis of the evidence on record.

Before the Apex Court, when this was

questioned, the Court maintained the

judgment of the High Court by the

detailed reasoning. It also addressed

the visitation rights of the natural

father and without entering into

allegations, counter allegations and

misapprehension expressed against

each other, on the paramount

consideration of the best

safeguarding the interest of the

child, it upheld the exclusive

custody of the child to the mother

and visitation right to the natural

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

father.



26. The             question         that        needs            to          be

        addressed        by      this         Court       is        as        to

whether the present case permits the

exercise of powers under the writ

jurisdiction or whether this is a fit

case where without any interference

the parties can be relegated to the

proceedings which they may chose

under the Guardians and Wards Act.

27. What has necessitated the approach of

this Court under Article 226 of the

Constitution of India is the

subsequent event, which had disturbed

the equilibrium. Undisputed facts

revealed that till the decree of

divorce was passed in the Family Suit

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

No.140 of 2020 delivered on

26.08.2020, the parties had with

mutual consent agreed to the terms

and conditions, one of which was the

handing over the custody to the

mother of the son begotten out of the

said wedlock.

28. We note the fact that there is no

visitation right even given to the

father. These were mutually agreed

terms which the parties had decided

and there are no disputes in that

connection. It is also not disputed

that despite such terms when the

mother suffered from COVID-19 virus,

the child was sent to the father by

mother for being looked-after and no

dispute had ever arisen in respect of

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

either his custody or in relation to

any other aspects. It is only after

November, 2020 that the changes had

started surfacing that according to

respondent No.2, there were certain

talks going on between the spouses,

however, till the child custody was

given for two days over a weekend

according to the respondent, No.2, he

had no clue of her intention to

remarry. It is after the family came

to know about her remarriage from the

third party source that on 17.12.202,

he chose to move an application CMA

No.95 of 2020 before the Family

Court, Ahmedabad for the permanent

custody of the child. The application

before the Family Court has an

edifice of the telephonic talk he had

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

with the wife for grant of permanent

custody. Whereas the version, which

has come from the wife is that till

she was settled in a new life, she

has needed the child to be for a few

days with ex-husband and that is how

the request had gone from her.



29. We              could    notice            the    chronology                   of

        events              that          she        had         seriously

        objected             to        the         application                  for

permanent custody under the Guardians

and Wards Act and the request for

stay of the proceedings by way of a

Special Civil Application No.6948 of

2021 had come in the month of April,

2021, likewise, this writ petition

also has been preferred on

25.04.2021. Admittedly, as there is a

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

decree of the Family Court given on

account of the mutual consent under

Section 13 (B) of the Hindu Marriage

Act, 1955, which unequivocally speaks

of the custody of the child to be

with the mother, the same is not in

challenge before any Court or any

forum. It is a subsequent event which

has led to a request before the

Family Court for permanent custody by

way of a CMA No.95 of 2020 under the

Guardians and Wards Act. The decree

being valid and not questioned before

any Court of law till date, the

subsequent events are yet to be

scrutinized and scanned by the

competent court before there could a

change of custody of the child, which

both the parents with the conscious

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

decision had decided to be with the

mother.

30. In this circumstance to urge before

this Court that the writ petition

would not lie as there is no illegal

custody is something difficult to be

accepted. Till the decree is in

subsistence, the custody has to be

with the mother and therefore, in the

opinion of this Court, if there is a

refusal on the part of the respondent

No.1 to handover the custody by

placing on record the subsequent

events in post December, 2020 period,

there shall be a need for indulgence.

31. There are two additional reasons for

this Court to also further accede to

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

such a request firstly because there

is no disabling ground or term

incorporated in the decree of divorce

or in the consent terms which have

been arrived at mutually by the

parties that in the event of any

remarriage on the part of the wife,

the custody of the child cannot

continue with her. Both the spouses

being young presumably they had

contemplated the remarriage on both

the sides and hence, this ground is

not available to either side.

Secondly, the person with whom she

had chosen to remarry appears to have

defrauded her and while the first

marriage of his had continued, he has

attempted to marry her once again.

        She          needed            to          therefore,                   see





 R/SCR.A/4482/2021                                      JUDGMENT DATED: 06/01/2022



        declaration                 under            Section            34          by

        preferring             a       Civil          Suit        that           her

second marriage should be declared as

null and void before the competent

court, the same has been finalised

eventually.

32. This being the case, the ground of her second marriage is no longer in existence

so far as this petition is concerned. So

far as the best interest of the child is

concerned, it goes without saying that it

is prematured for the court to conclude

that it will not be if the child is with

the mother, who is otherwise a natural

guardian and is considered to be the one

in whose presence the child's growth has

taken place. This is not to conclude

finally on the right of the either

parents, which eventuality this Court in

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

Special Civil Application No.6948 of 2021

chooses not to entertain the petition and

permits the CMA No.95 of 2020 under the

Guardians and Wards Act be proceeded with,

as held by the Apex Court the permanent

custody of the child in that eventuality

can be decided by taking into

considerations the evidence that may be

led by both the sides on the aspect of the

custody having been handed-over to the

respondent No.2.

33. Presently, it is a words against words, which have been filed by both the sides. There are certain admissions and more the denials. Both the sides have presented their versions which as held in case of Tejaswini Gaud and Ors (supra) more being on affidavit will not be needed to be accepted as the proof before the Court, however, the preliminary examination clearly indicates that the petitioner mother

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

had handed-over the custody of the child for some days and she had chosen to ask back the custody on the strength of the decree which is existing in her favour, no one can chose to be a judge in his own cause to decide that the welfare of the child would lie only with the father and therefore, noticing the mother's claim legally as the natural guardian and also coupled with the decree which is in subsistence, we pass the following order. This Court also reminds itself that child started residing with mother separate from the respondent father when he was barely two years and therefore also, that bonding coupled with natural bonding and affection also need to be given primacy.

34. Presently the custody shall need to be handed-over to the mother. Let the same be done within a period of one week from the date of receipt of a copy of this order. It is to be done in presence of the Secretary, Gujarat

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

High Court Legal Services Committee.

The SOPs for the COVID-19 virus are

in operation, following the same

restricted number of persons, both

the spouses shall come with the child

before the Court with their requisite

certificate for handing and taking

over the custody.

35. The parties shall be at liberty to

proceed with the Special Civil

Application No.6948 of 2021