IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION NO. 4482 of 2021 FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MRS. JUSTICE MAUNA M. BHATT ==========================================================

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POONAMBEN HASMUKHBHAI BRAMBHATT Versus VARUN GAURANGBHAI PATEL & 2 other(s)

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Appearance:

MR VAIBHAV A VYAS(2896) for the Applicant(s) No. 1 MR SHIVANG M SHAH(5916) for the Respondent(s) No. 1 MS DHARA M SHAH(5546) for the Respondent(s) No. 1 NOTICE NOT RECD BACK(3) for the Respondent(s) No. 3 MR H K PATEL, ADDL.PUBLIC PROSECUTOR(2) for the Respondent(s) No.

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CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MRS. JUSTICE MAUNA M. BHATT Date : 06/01/2022

ORAL JUDGMENT

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

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 desolved 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