1 2569.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2569 OF 2010 Muktar Khan Hamid Jaffar Khan ...Petitioner Versus State of Maharashtra & Anr. ...Respondents ...... Mr.Sandeep Karnik for Petitioner. Mr.D.P.Adsule, A.P.P. for State. ...... CORAM:-A.M.KHANWILKAR AND A.R.JOSHI, JJ. (IN CHAMBERS) DATED:- FEBRUARY 10, 2011. P.C. 1. The missing wife of the petitioner-Meenaz and two children were produced before us on 3rd February, 2011. After interaction with Meenaz and two children, we have recorded our observation in the order dated 3rd February, 2011. Meenaz wanted some time to consider the future course of action. She had willingly handed over custody of minor daughter as well as minor son to the petitioner. Accordingly, the matter is listed today in chambers. Even today, the petitioner along with the two children whose custody was made over to him by Meenaz on 3rd February, 2011 is present before us. Even Meenaz is present in-person. This time, however, she has come alone and not with her sister Zara Mohammed, who was present on the earlier occasion. 2 2569.10 2. She states that she has made up her mind to stay with Azad Sharafat Khan-Respondent No.2 for the rest of her life. She is willing to accept divorce to be given by the petitioner. Besides, she will not claim custody of the two minor children already made over to the petitioner husband, who is capable of looking after the welfare of the two children. As has been noted by us on the earlier occasion, Meenaz developed illicit relations with Azad Sharafat Khan during the subsistence of her marriage with petitioner. Besides, she is hardly educated. She has studied only up to 7th standard and would be fully dependent on Azad Sharafat Khan for her survival as well as the two children, if they were to stay with her. 3. Considering all these aspects, on her own, she has decided to hand over custody of two children to the petitioner. We have explained to her repeatedly about the ramifications of such stand. She refuses to change her opinion. 4. In the circumstances, we persuaded the petitioner to give divorce to Meenaz. With great reluctance, he has agreed to do so on condition that Meenaz shall not resort to any legal proceedings for maintenance in future 3 2569.10 as she has disentitled herself because of her conduct during the subsistence of marriage with him. Meenaz was explained about this condition of the petitioner for giving her divorce. She submits that she is taking conscious decision and would not change her mind merely because she is required to suffer some financial loss. 5. From the above, it is amply clear that Meenaz who is capable of understanding the ramifications, has made up her mind not to stay with the petitioner hereafter and also give up custody of the two children who were with her at Ahmedabad. She has also voluntarily given up her right to receive any maintenance with complete understanding of the consequences thereof. She was told that it is possible that because of her illicit relations, she or Azad Sharafat Khan may have to face criminal action. She is willing to suffer even that consequence. 6. In the circumstances, we proceed to dispose of this Petition by recording the above position and reiterating the fact that the custody of two children have been made over to the petitioner on 3rd February, 2011 and would continue to remain with him, for which, Meenaz would not take out any proceedings in future, as is agreed by her. The petitioner has no 4 2569.10 objection if Meenaz were to visit his house to meet the two children on 1st Sunday of every English calender month between 12.00 noon to 4.00 p.m. 7. We would also place on record that we have interviewed the two children and were convinced that they are more than comfortable and happy to stay with their father and elder brother who is also staying with the petitioner. The petitioner has given assurance to look after the welfare of two children, which is also placed on record. 8. Meenaz has furnished her place of ordinary residence as of now as Mahendra Park, `C’ wing, Room No.22, Ground Floor, Narayan Nagar, Ghatkopar (West), Mumbai – 400 078 and she undertakes to keep informed petitioner about change, if any, forthwith from time to time. 9. We are informed by the learned A.P.P. on instructions of Investigating Officer Mr.B.A.Dhas, Additional Superintendent of Police, C.I.D. Crime, Konkan Bhavan that the accused persons named in the complaint registered at the instance of the petitioner were told to remain present and accordingly, they are present in Court today. 5 2569.10 10. Petition disposed of on the above terms. (A.R.JOSHI, J.) (A.M.KHANWILKAR, J.)