The best interest and welfare of the child, as well as the principles of the 'tender years rule', are paramount considerations in child custody matters.

JUDGMENT :

A.Y. KOGJE, J.

1. Rule. Learned Assistant Government Pleader waives service of rule on behalf of respondent No.-1-State. Learned advocate Mr. Chintan Gandhi waives service of notice on behalf of respondent Nos.4 to 6.

2. This petition under Article 226 of the Constitution of India is filed by the petitioner for issuance of writ of Habeas Corpus to produce the corpus i.e. respondent No.7, a minor named ‘Hiya’ being daughter of the petitioner and her husband-respondent No.4- Jigar Balvantbhai Vala. The bare facts are that the petitioner and respondent No.4 had entered into a marriage on 10.03.2017 and out of the wedlock, ‘Hiya’ (corpus) was corpus on 12.10.2020.

3. It is a case where there was a matrimonial discord between the petitioner and respondent No.4 and there were allegations that the petitioner was beaten and driven out of the matrimonial home at Vadodara and the corpus Hiya forcibly snatched away from her because of which the petitioner has filed a written complaint with J.P. Police Station, Vadodara. It is a case where both petitioner and respondent No.4 originally belonged to Bhavnagar however, have re-located themselves at Vadodara, where both the petitioner and respondent No.4 were working at the different private banks. It is alleged that the petitioner had returned to her parental home at Bhavnagar where she was required to be treated, at the same time, respondent No.4 after having taken the forcibly daughter with him also returned to Bhavnagar.

4. It appears that as on today, both the petitioner and respondent No.4 are still working with the respective banks, but at Vadodara and Bhavnagar respectively.

5. It is submitted that the petitioner made several attempts seeking custody of the minor daughter as she was only two and half year’s old and needed utmost care of her mother. It appears that over and above, the complaint in writing to J.P.Nagar Police Station and an application under Section 97 of the Code of Criminal Procedure (for short “the Code”) has also been filed before the 6th Additional Chief Judicial Magistrate at Bhavnagar, where also the petitioner failed to get any relief as the same came to be dismissed by an order dated 17.06.2023.

6. It appears that therefore, the petitioner was constrained to file the present petition, wherein the previous bench had issued notice under order dated 31.07.2023, requiring the corpus to be kept present before the Court on the next date and accordingly when the corpus was produced on 10.08.2023, this Court has passed an order entrusting the custody of Hiya to the petitioner under the interim directions.

7. Taking cognizance of a matrimonial discord being the root of the matter, this Court by an order dated 18.09.2023 had relegated the parties for mediation with the mediation center attached to this Court. After the necessary sessions before the mediator, ultimately by a report dated 25.10.2023, the mediator had reported that the mediation was unsuccessful and once again the matter was placed before this Court.

8. Learned advocate for the petitioner submitted that it was at the behest of the unlawful act of the respondent No.4 that the respondent No.4 was required to leave the matrimonial home and it was at that time that the petitioner and the minor daughter were forcibly separated. It is submitted that the petitioner has made all the attempts so that matrimonial dispute does not come in way of upbringing of minor however, when the things were beyond control, she had to resort to legal proceedings in the interest of the minor. It is submitted that as the minor is only two and half years old and that a female child, the welfare of the minor would lie, but in company of the mother. It is submitted that the petitioner is a well educated with necessary means to sustain herself. Not only that but she is also supported by her parents. It is submitted that though the petitioner is having step father since her childhood, both her parents are looking after her and are const