IMPORTANT POINT
The court reaffirmed that established custody, especially with the mother, is paramount in custody disputes, and any unlawful taking of custody is subject to correction through habeas corpus.

ORDER :

UMESH A. TRIVEDI, J.

1. This petition is filed by the petitioner-mother of minor son “Zain” praying for writ of habeas corpus be issued against respondent no.2 to produce the corpus and handover the custody to the petitioner.

2. The facts as narrated in this petition is that the petitioner and respondent no.2 got married on 05.06.2015 and out of the wedlock son “Zain” born on 28.04.2019

3. However, due to the some dispute between the parties, petitioner herein prayed for “Khula” i.e. divorce from her husband, which came to be agreed by respondent no.2-husband and the “Khula” came to be executed between them duly signed in presence of witnesses as also by respondent no.2 herein stating therein that he released wife Roshni from marriage by her “Khula” in exchange for her dower (Mahr) and Idda expenses. Since there is no dispute about the execution thereof and the divorce pursuant thereto, nothing further requires to be delve deep into it.

4. However, as claimed by the petitioner, respondent no.2 snatched away the custody of son “Zain” on 21.04.2024 suddenly after 5 years of separation/divorce, present petition came to be filed before the Court for a writ of habeas corpus to restore the custody. On 09.07.2024, Mr.Nadeem B. Mansuri, learned advocate appeared for respondent no.2, without notice being issued, therefore Registry was directed to accept his appearance. He sought time to file affidavit in response to the petition. Thereafter, he filed the affidavit-in-reply to the petition. Pleadings in the form of reply, rejoinder, sur-rejoinder etc. were completed. Since first reading of pleadings compel us to meet and interact with the child, we had done that. The age of child being 5 years vide order dated 01.08.2024, we directed the custody of child “Zain”, who was with respondent no.2 biological father, to be handed over to the petitioner- mother of the child subject to further order that may be passed in this petition finally. The petitioner was also further directed to attend the Court on the next date of hearing, which was kept on 05.08.2024 along with the child.

5. On passing of the order dated 01.08.2024, some unpleasant incident occurred and we avoided to record it in full detail with a view not to prejudice the case of either side, suffice it to quote the said portion of the order herein as under:-

“At this stage, since unpleasant incident occurred, which we would like to avoid recording it, as told to us by the lady police officer, who accompanied the petitioner and the child to drop them outside the Court gate, we direct the Security Cell of the Gujarat High Court to drop the petitioner with child and her husband at Railway Station and they are directed to communicate possible threat, to the Railway Police enroute the train, which they board.”

6. The hearing was then adjourned on 05.08.2024, on that day Mr.Ashraf R. Ghoghari, learned advocate replaced Mr.Nadeem B. Mansuri and he filed his appearance with the Registry and his name was reflected in computer system.

7. Mr.M.M.Saiyed, learned advocate, who appeared for learned advocate Mr.Ashraf R. Ghoghari, sought time on that day with a permission to file additional affidavit. Pursuant thereto, matter was adjourned to 12.08.2024 and he tendered additional affidavit affirmed by respondent no.2 herein along with certain annexures. The said additional affidavit is ordered to be taken on record.

8. We have heard learned advocates appearing for the parties.

9. Ms.Maitri Patel, learned advocate for the petitioner submitted that since the birth of child he was with the petitioner. He was with her even after “Khula” i.e. divorce from her husband, which is accepted and consented to by the husband dated 31.10.2019 and since then child “Zain” was in established custody of the petitioner. She has further submitted that all of sudden on 21.04.2024 while she was residing at Mumbai, respondent no.2 herein snatched away custody from her by taking up quarrel with her and for that she had to co