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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, A.C. RAO, JJ.
Sejalben Arpit Shah w/o Arpit Jitendrakumar Shah - Petitioner
Versus
State Of Gujarat - Respondent
R/Special Criminal Application No. 1022 of 2019
Decided On : 09-04-2019
Criminal Procedure Code, 1973 – Section 97 – Hindu Marriage Act, 1955 – Section 9 – Constitution of India – Article 226 – Seeking custody of her minor daughter from her husband – Applicant is being harassed like anything by her husband and in laws – On account of incessant harassment, the writ applicant had to leave her matrimonial home, but while she left her matrimonial home, she was not permitted to take her daughter along with her – In such circumstances, she had to rush before this Court with this petition seeking writ of habeas corpus – Held, The “tender years rule” has found statutory recognition and legislative policy underlying thereto based not only on social philosophy but also in realities and points in direction that custody of minor children who have not completed age of 5 years should ordinarily be with mother irrespective of fact that father is natural guardian of such minors – When moved for a writ of Habeas Corpus and in exercising general and inherent jurisdiction in a child custody case, Court required to bear legislative prescription in mind while judging the issue as to welfare of child – In present case, Priyanshi is just 14 months old parties are Hindus and “tender years rule”, as statutorily recognized, is immediately attracted in their case and should not be ignored in judging her welfare – Dispute between parties is ultimately going to take very heavy toll on future of Minor Children – In such circumstances family members, friends and elders from both sides should make all possible endeavors to ensure that parties reconcile and once again start living happy marital life – Minor child-Priyanshi at this age for no fault on her part is paying a very heavy price it is too painful to leave minor to her fate and destiny – Petition disposed of (Paras 51 to 55)
Facts of the case:
Seeking custody of her minor daughter from her husband – Applicant is being harassed like anything by her husband and in laws – On account of incessant harassment, the writ applicant had to leave her matrimonial home, but while she left her matrimonial home, she was not permitted to take her daughter along with her – In such circumstances, she had to rush before this Court with this petition seeking writ of habeas corpus
Findings of the court:
The “tender years rule” has found statutory recognition and legislative policy underlying thereto based not only on social philosophy but also in realities and points in direction that custody of minor children who have not completed age of 5 years should ordinarily be with mother irrespective of fact that father is natural guardian of such minors – When moved for a writ of Habeas Corpus and in exercising general and inherent jurisdiction in a child custody case, Court required to bear legislative prescription in mind while judging the issue as to welfare of child – In present case, Priyanshi is just 14 months old parties are Hindus and “tender years rule”, as statutorily recognized, is immediately attracted in their case and should not be ignored in judging her welfare – Dispute between parties is ultimately going to take very heavy toll on future of Minor Children – In such circumstances family members, friends and elders from both sides should make all possible endeavors to ensure that parties reconcile and once again start living happy marital life – Minor child-Priyanshi at this age for no fault on her part is paying a very heavy price it is too painful to leave minor to her fate and destiny
Result: Petition disposed of.
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. By way of this petition, the petitioner prays for a writ of habeas corpus as according to the petitioner, her minor daughter viz.Priyanshi, aged 14 months is in unlawful custody of the respondent no.3. The case on hand primafacie appears to be one of matrimonial dispute between the husband and wife. By this writapplication, the writapplicant seeks the custody of her minor daughter from her husband.
2. On 18/03/2019, this Court passed the following order:1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:
“(A) The Hon’ble Court may be pleased to issue a writ of Habeas Corpus or any other appropriate writ, order or direction, directing the Respondents Nos.1 to 3 herein to produce Ms. Priyanshi (“corpus”) before this Hon’ble High Court and further be pleased to set her at liberty by handing her to the petitionermother;
(B) The Hon’ble Court may be pleased to issue a writ of Habeas Corpus or any other appropriate writ, order or direction, directing the respondent 3 herein to hand over the custody of the corpus (Priyanshi) to the petitioner who is the legal custodian of the corpus;
(C) Pending admission, hearing and final disposal of this petition, this Hon’ble Court may be pleased to direct respondents Nos.1 to 3 to produce corpus before this Hon’ble Court.
(D) Such other and further reliefs, as are deemed fit, in the facts and circumstances of this case may kindly be granted.”
2. The case of the writ applicant, in her own words, as pleaded in the writ application, is as under:
“3.1 The petitioner states that the petitioner married Respondent No.3 on 9.12.2016. A copy of the certificate of registration of marriage is annexed herewith and marked as AnnexureA.
3.2 The petitioner and Respondent No.3 were residing at the residence of the Respondent No.3 (“matrimonial home”). Immediately after marriage, the family of Respondent No.3 started instigating Respondent No.3 against the petitioner which led to quarrels between the petitioner and Respondent No.3. Even at the time when the petitioner was pregnant, the family of Respondent No.3 did not support the petitioner. The petitioner states that certain medical complications had arisen during pregnancy. The family of Respondent No.3 did not permit her to take rest nor did they give her the required medical help; owing to which, the petitioner was forced to go to her parental home to take medical treatment, where she was advised complete bed rest. During such time, the petitioner was compelled to stay at her parental home. The father, sister and brother of the petitioner took care of the petitioner. After immense care and medical treatment, the petitioner gave birth to a baby girl Priyanshi on 15.11.2017. Petitioner craves leave to refer and rely on medical records to delineate the complications which had arisen during her pregnancy as and when necessary or if called upon to produce by this Hon’ble Court. A copy of the birth certificate is annexed herewith and marked as Annexure B.
3.3 Soon after Priyanshi was born, the petitioner resumed her matrimonial life at the residence of Respondent No.3. Thereafter, time and again, the petitioner was subjected to mental and physical torture from Respondent No.3 owing to instigation from his family. The parents of Respondent No.3 had indicated to the petitioner that Priyanshi should be given away to the sister of Respondent No.3. At this juncture, it is necessary to point out that sister of Respondent No.3 who was married for more than four years did not have any children from her marriage. Therefore, the family of the Respondent No.3 made an attempt to convince the petitioner to give away Priyanshi to her sister in law. Since the petitioner resisted the attempt made by her in laws, she was mentally and physically tortured.
3.4 Despite continued torture from the family of Respondent No.3, the petitioner continued to live at
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