Point of Law: 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 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

JUDGMENT :

SONIA GOKANI, J.

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 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 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:

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(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.

(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 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 t