POONAMBEN HASMUKHBHAI BRAMBHATT vs VARUN GAURANGBHAI PATEL

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Guj) 1660

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SONIA GOKANI, MAUNA M. BHATT, JJ.
POONAMBEN HASMUKHBHAI BRAMBHATT – Appellant
Versus
VARUN GAURANGBHAI PATEL – Respondent
Special Criminal Application No. 4482 of 2021
Decided On : 06-01-2022

Advocates:
Advocate Appeared:
For the Appellant : VAIBHAV A. VYAS.
For the Respondents: SHIVANG M. SHAH, DHARA M. SHAH, H.K. PATEL.

Headnote:
Constitution of India, 195 – Article 32, 226 – Criminal Procedure Code, 1973 – Section 491 – Guardian and Wards Act – Sections 7, 25 – Specific Relief Act, 1963 – Section 34 –) Hindu Marriage Act, 1955 – Section 13(B) – Petition is preferred under Article 226 of Constitution of India seeking issuance of writ of habeas corpus for production of corpus minor son and handing over his legal and lawful custody to petitioner mother in factual background – Held, There are certain admissions and more denials – Both sides have presented their versions which held in case of and Others (supra) more being on affidavit will not be needed to be accepted as proof before Court, however, preliminary examination clearly indicates that petitioner mother had handed-over custody of child for some days and she had chosen to ask back custody on strength of decree which is existing in her favour, no one can chose to be a judge in his own cause to decide that welfare of child would lie only with father and therefore, noticing mother’s claim legally as natural guardian and also coupled with decree which is in subsistence, court pass order – Court also reminds itself that child started residing with mother separate from 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 – Petition is disposed of.

JUDGMENT :

SONIA GOKANI, J.

1. Present petition is preferred under Article 226 of the Constitution of 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 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 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 de-solved 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 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 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 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, judgment and decree dated 26.08.20