Back
2020 Supreme(Guj) 628
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.R. BRAHMBHATT, V.P. PATEL, JJ.
Murtaza Quaid Mahuwala – Appellant
Versus
State of Gujarat and Others – Respondent
Special Criminal Application No. 10944 of 2018
Decided On : 19-02-2020
Advocate Appeared:
For the Appellant : Mr. Nachiket A. Dave.
For the Respondents: Mr. B.J. Trivedi, Mr. J.T. Trivedi, Mr. S.H. Lightwala, Mr. Ronak Raval, Ms. Jignasa B. Trivedi.
The custody of a child under personal law, the welfare of the child, and the consideration of pending foreign court proceedings were central to the court's decision.
Headnote:
Habeas Corpus - Child Custody - Guardians and Wards Act, Domestic Violence Act - Mohamadan Law - Bombay High Court Judgment - Supreme Court Judgment - High Court Decision
Fact of the Case:
The petitioner sought custody of the minor child from the respondent, who had taken the child to India from the USA. The petitioner alleged illegal and inequitable custody by the respondent and sought the court's intervention.
Finding of the Court:
The court found that the custody of the child with the mother was lawful under Mohamadan Law, and the petitioner failed to demonstrate any harm to the child's welfare. The court also noted the pending proceedings in the foreign court and dismissed the petition.
Issues: Custody of the minor child, legality of custody, alternative remedy, direction of foreign court, child welfare, and promptness of filing the petition.
Ratio Decidendi: The custody of the child with the mother was lawful under Mohamadan Law, and the petitioner failed to demonstrate any harm to the child's welfare. The court also considered the pending proceedings in the foreign court and the welfare of the child as paramount.
Final Decision: The petition was dismissed, and the court found the custody of the child with the mother to be lawful and in the child's best interest.
JUDGMENT :
V.P. PATEL, J.
1. The Petitioner has filed this Petition under Articles 14, 19, 21 and 226 of the Constitution of India claiming the reliefs in terms of paragraph 23 as under:
“(a) This Hon'ble Court may be please to issue a writ of habeas corpus or a writ in nature of habeas corpus or any other appropriate writ, order or direction against the Respondent No. 4 to produce the minor child, Master Mustali before this Hon'ble Court on the date and time as may be directed by the Hon'ble Court and in the event if the Respondent No. 4 fails to do so, the Respondent Nos. 2 and 3 be ordered and directed to take the custody of the child from the Respondent No. 4 and produce the minor child, before this Hon'ble Court, and thereafter hand the custody of the child to the Petitioner.
(b) For a writ of Habeas Corpus and direction under Article 226 of the Constitution of India, in terms of prayer clause (a) above.
(c) For the reliefs as claimed for in prayer clause (a) above.
(d) That pending hearing and final disposal of this Petition, the Respondent No. 4 be restrained by an Order and Injunction of this Hon'ble Court from removing the minor child from the jurisdiction of this Court and depositing the passport of herself and the minor child, in this Court.
(e) For ad-interim reliefs in terms of prayer clause (d) above.
(f) For costs of this Petition.
(g) For such other and further reliefs as the nature and circumstances of the case may require.”
2. Heard learned Advocate Mr. Nachiket Dave for the Petitioner, learned Advocate Mr. Brijesh J. Trivedi for Respondent No. 4 and Mr. Ronak Raval, learned APP for the Respondent-State of Gujarat.
3. Facts of the Case:
3.1 The Petitioner and Respondent No. 4 were married according to Muslim rites and rituals on 11th July 2010 in Valsad, Gujarat and that out of the said wedlock child named Mustali Mahuwala was born on 29.12.2013 in Dallas, Taxas, USA and he is at present 4 years old. The Respondent No. 4 was earlier an Indian citizen who voluntarily surrendered her citizenship of India and accepted the citizenship of USA. That few months after the marriage, the relationship between the petitioner and Respondent 4 irretrievably broke down and the petitioner preferred divorce proceedings in the District Court in Dallas, County, USA which has been finally decreed by the the learned Court on 12.7.2018 and the marriage between the petitioner and the Respondent No. 4 is dissolved. The learned Court has granted custody of the minor child in favour of the petitioner.
3.2 That during the pendency of the divorce proceedings, the Respondent No. 4 was permitted by the Petitioner to travel to Australia with minor child for a limited period of 3 months i.e. 8.7.2017 to 08.10.2017. That the petitioner applied for overseas citizenship of India from Australia for herself and her minor child. That the Respondent No. 4 for an on behalf of the minor child has forged the petitioner’s signature in the said application suggesting that the petitioner has consented for getting overseas citizenship of India. That the petitioner lodged complaint dated 15.9.2018 at Valsad City Police Station. That the petitioner had also preferred petition seeking writ of Habeas Corpus against the Respondent No. 4 in the District Court at Dallas, County, Texas wherein vide order dated 12.9.2018 the notice has been issued to the Respondent No. 4 for production of child before the Court at Texas.
Arguments for the Petitioner:
4. Learned Advocate for the petitioner has submitted that it is absolutely necessary and in the interest of justice that the life, liberty and welfare of the minor child is to be protected that too when the court at Texas, having categorically held that the minor child though generally is allowed to stay with the mother in the peculiar facts and circumstances of the case, was removed from the reach of the mother in the interest and benefit of the minor. He submitted that it probably the Respondent No. 4 may run away from the jurisd
