(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. Present petition is preferred under Article 226 of the Constitution of Page 1 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 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 Page 2 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 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 Page 3 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 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.

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 The suit was withdrawn eventually with the Page 4 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 permission of to file appropriate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 Page 5 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 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.

concerned not to hear the CMA No.95 Page 6 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 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:

3. This Court at the time of issuance of notice directed the police authority to produce the corpus before this Court through the video conference Page 7 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 from the District and Sessions Court, Ahmedabad. On 15.06.2021, it was also noted that the custody of the corpus is with the respondent No.1 and understanding had been arrived at between the parties for an interim arrangements and the presence of the corpus was dispensed with. With the further direction, the respondent No.1 was to produce the corpus as and when required. The Co-ordinate Bench also chose to meet the corpus and once again the child was called for meeting on 08.10.2021 as per the order dated 01.10.2021.

4. We notice further affidavit on the part of the petitioner, where she has made a grievance that the son has Page 8 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 been tutored against her by the father and she has not allowed to freely meet the son. According to her, even when she has permitted to meet, there is no privacy and all the conversations with her son are constantly audited, monitored and listened to by the respondent No.1 and his family members. She has also narrated certain instances as to how the child is being tutored and brainwashed by the father for holding on to the alleged illegal custody. We shall choose not to go into the detailed narration of these instances of the mother. She has insisted that the role of the mother in the development of the child's personality can never be questioned. Page 9 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 The child gets the best education and protection through the mother and she being a natural guardian, the child cannot be deprived of the company of the mother.

5. The Court also noticed that there are certain correspondence through whatsapp which are forming the part of record. We have also chosen not to delve into the same for the simple reason that there are all going to the factual narration and its explanations.

5.1. The affidavit-in-reply has been filed by the respondent No.1 ex-

husband of the petitioner. As contended by him that the petitioner has not approached with the clean Page 10 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 hands as has attempted to mislead the Court by narrating incorrect facts and therefore, the writ of habeas corpus should not be lie.

5.2. According to him, both the parties have equal educational qualifications and compatibility. The families of both the parties along with the petitioner and the respondent met on 25.02.2012 the marriage between the petitioner and respondent No.1 was solemnized. The son was born, undoubtedly out of the said wedlock on 17.12.2014. The parties started living separately due to the disputes which had cropped up and eventually, on 18.01.2020 by mutual consent the divorce proceedings being Family Suit Page 11 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 No.140 of 2020 was preferred under Section 13(B) of the Hindu Marriage Act. The meetings which were held to decide the terms and conditions for the settlement of mutual consent divorce, noticing that the petitioner being extremely insecure about Raghav that the Raghav may prefer to go back to his father's place and also noticing overall environment and the love and care that was being given, she was over possessive and was not ready to give the necessary required visitation right to the respondent No.1. The respondent No.1 agreed to the petitioner's requirement of letting go the kid's visitation right in writing and requested to send Raghav as and when she was Page 12 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 comfortable to do so. It is only to avoid the rifts between the parties every time there will be a visit of the minor child that this was decided.

6. It is further his say that because of natural love and affection from time to time the son had gone to him to stay for a few days and he also visited the grandparents after the decree was passed. From 16.07.2020 to 10.08.2020, the petitioner was diagnosed positive with Covid-19 virus and the minor was staying with respondent No.1 at his house and there was no one at the petitioner's house to take care of him. The petitioner also had agreed to that Page 13 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 arrangement.

7. On 11.10.2020 the petitioner met the respondent No.1 multiple times and inquired whether he is interested to take the custody of the minor son since it was becoming difficult for her to look-after him. Since it was a question of minor son and with an intention to see that his life did not get disturb, the respondent No.1 asked the petitioner to thing over it again and to take a final decision.

8. Again in the 3rd week of November, 2020 she met the respondent No.1 and requested to take the custody of the minor son and she was ready to complete legal formalities and the documentation requirement for the same. The respondent No.1 suggested that more than legal documentation, the mental status of the minor son Page 14 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 was and therefore, suggested for the gradual shift from her place to the respondent No.1's place.

8.1. According to him, he got a surprise call on 03.12.2020 from the petitioner at around 08:15p.m. and was asked to take the son Raghav with him to stay for a weekend and drop him back to the petitioner's house after two days on 06.12.2020.

9. On 07.12.2021 when the respondent was to drop the child back in the morning he received a call from her where she asked him not to drop the child back and keep him with father (himself) for a few more days. She informed that she had some developments and will inform the respondent No.1 later.

10. On 08.12.2020 also she called up and Page 15 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 in the conversation which lasted for about 45 minutes, the family of the respondent No.1 came to know about her remarriage and hence, she wanted a son to be with the respondent No.1.

11. On 17.12.2020, the respondent No.1 moved a Civil Misc.Application No.95 of 2020 under Sections 7 and 25 of the Guardians and Wards Act, 1955. Though the petitioner wanted to handover the custody of the minor son to the respondent No.1, she was not coming to any final conclusion. It is contended that she had come out with the false statement and she was not allowed to meet or to stay in touch with Raghav. She was constantly permitted to do so and lastly she did Page 16 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 on 25.05.2021. The petitioner met minor son on 14.03.2021, 21.03.2021, 20.04.2021, 09.05.2021 and 25.05.2021. The numerous video calls also had happened between the mother and the child.

12. It has therefore urged by the respondent No.1 that the custody of the child cannot be said to be unlawful or illegal and whether the welfare of the child required the present custody should be left in the care of somebody else shall need to be decided in proper proceedings which shall be not in the writ jurisdiction. His academic graph also has gone substantially high after he resides with the respondent No.1. Page 17 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

13. Reliance is placed on the decision of the Apex Court rendered in case of Tejaswini Gaud and Ors. Vs. Shekhar Jagdish Prasad Tewari and ors , reported in 2019 7 SCC 42 where the Apex Court said that the habeas corpus petition is not to justify or examine the legality of the custody of the minor and ordinary remedy lies only under the Hindu Minority and Guardianship Act .

14. We have extensively heard the learned senior advocate, Mr.Joshi assisted by the learned advocate, Mr.Vaibhav Vyas and learned senior advocate, Mr.Shelat assisted by the learned advocate, Ms.Dhara Shah for the respondent No.1.

Page 18 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022

15. Both have as per the elaborate pleadings made have put forth the submissions without elaborating the same firstly the question that would need to be decided by this Court is as to whether the writ petition would lie in the circumstances which have been brought on the record before this Court.

16. The Apex Court in case of Yashita Sahu vs. State of Rajasthan and others , reported in (2020) 3 SCC 67 while considering the scope of Article 226 of the Constitution of India and maintainability of writ of habeas corpus the Apex Court held that the writ of habeas corpus would lie and it is too late in the day to urge that a writ of habeas corpus is Page 19 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 not maintainable if the child is in the custody of another parent. The law in this regard according to the Apex Court has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child. Before the Apex Court the wife had brought the minor to India from USA in violation of the orders of the jurisdictional court in the USA, her custody of the child, the Court has held not to be strictly legal. However, the High Court when had directed the wife to go back to USA, the Court had intervened and said that the wife is an adult and no court can force her to stay at a Page 20 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 place where she does not want to stay by holding that the custody is a different issue, but while deciding the issue of custody of the child, no direction can be issued to the adult spouse to go and live with the other strained spouse in writ jurisdiction of the Court. Apt would be to refer to some of the findings and observations in this regard.

17. "10 We need not refer to all decisions in this regard but it would be apposite to refer to the following observations from the judgment in Nithya Anand Raghavan (supra):

Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the Page 21 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised.

47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private Respondent named in the writ petition) 11 Further, in the case of Kanika Goel vs. State of Delhi , 2018 9 SCC 578 it was held as follows:

12 In the present case since the wife brought the minor to India in violation of the orders of the jurisdictional court in USA, her custody of the child cannot be said to be strictly legal. However, we agree with the learned counsel for the appellant that the High Court could not have directed the Page 22 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 appellant wife to go to the USA. The wife is an adult and no court can force her to stay at a place where she does not want to stay. Custody of a child is a different issue, but even while deciding the issue of custody of a child, we are clearly of the view that no direction can be issued to the adult spouse to go and live with the other strained spouse in writ jurisdiction.

Comity of Courts 13 In the fast shrinking world where adults marry and shift from one jurisdiction to another there are increasing issues of jurisdiction as to which country s courts will have jurisdiction. In many cases the jurisdiction may vest in two countries. The issue is important and needs to be dealt with care and sensitivity. Though the interest of the child is extremely important and is, in fact, of paramount importance, the courts of one jurisdiction should respect the orders of a court of competent jurisdiction even if it is beyond its territories. When a child is removed by one parent from one country to another, especially in violation of the orders passed by a court, the country to which the child is removed must consider the question of custody and decide whether the court should conduct an elaborate enquiry on the question of child s custody or deal with the matter summarily, ordering the parent to return the custody of the child to the jurisdiction from which the child was removed, and all aspects relating to the child s welfare be investigated in a court in his/ her own country.

18. 14 Reference in this regard may be made to the judgment in Elizabeth Dinshaw (supra) wherein this Court was dealing with a case where the wife was an American citizen whereas the husband was a citizen of India. They got married in America and a child was born to them in the year 1978. In 1980, differences arose between the couple and the wife filed a petition for divorce. The jurisdictional court in America had dissolved the Page 23 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 marriage by a decree of divorce on 23.04.1982 and by the same decree it was directed that the wife would have the care, custody and control of the child till he reaches the age of 18 years. The husband was given visitation rights. Taking advantage of the weekend visitation rights, the husband picked up the child from school on 11.01.1986 and brought him to India. The wife filed a petition under Article 32 of the Constitution of India before this Court. Not only was the petition entertained, but the same was allowed and we would like to refer to certain important observations of this Court in Para 8:

In V. Ravi Chandran (Dr.) (2) vs. Union of India (UOI) and Ors., 2010 1 SCC 174 it was held as follows:

the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case.

30. However, in a case where the court decides to exercise its jurisdiction summarily to return the Page 25 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 child to his own country, keeping in view the jurisdiction of the court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interest of the child .

15 In Nithya Anand Raghavan (supra), this Court took the following view:

R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 Thereafter, another bench of this Court in Lahari Sakhamuri (supra), while interpreting the judgment in Nithya Anand Raghavan (supra) held as follows :

16 We are of the considered view that the doctrine of comity of courts is a very healthy doctrine. If courts in different jurisdictions do not respect the orders passed by each other it will lead to contradictory orders being passed in different jurisdictions. No hard and fast guidelines can be laid down in this regard and each case has to be decided on its own facts. We may however again reiterate that the welfare of the child will always remain the paramount consideration."

19. The decision of the Apex Court in case of Tejaswini Gaud (supra) also emphatically specified as to when the writ jurisdiction would lie in case of custody of the minor child.The Apex Court has held that the writ of habeas corpus is a Page 27 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing the custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not legal or natural guardian in an appropriate cases, the writ court has jurisdiction. It is also further held Page 28 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 that the habeas corpus proceedings is not to justify or examine the legality of the custody. It is a medium through which the custody of the child is addressed to the discretion of the court.

20. "13 Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.

21. 14 In Gohar Begum where the mother had, under the personal law, the legal right to the custody of her illegitimate minor child, the writ was issued. In Gohar Begum, the Supreme Court dealt with a petition for habeas corpus for Page 29 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 recovery of an illegitimate female child. Gohar alleged that Kaniz Begum, Gohar s mother s sister was allegedly detaining Gohar s infant female child illegally. The Supreme Court took note of the position under the Mohammedan Law that the mother of an illegitimate female child is entitled to its custody and refusal to restore the custody of the child to the mother would result in illegal custody of the child. The Supreme Court held that Kaniz having no legal right to the custody of the child and her refusal to make over the child to the mother resulted in an illegal detention of the child within the meaning of Section 491 Cr.P.C. of the old Code. The Supreme Court held that the fact that Gohar had a right under the Guardians and Wards Act is no justification for denying her right under Section 491 Cr.P.C. The Supreme Court observed that Gohar Begum, being the natural guardian, is entitled to maintain the writ petition and held as under:-

In Queen v. Clarke (1857) 7 EL & BL 186: 119, ER 1217 Lord Campbell, C.J., said at p. 193:

10. We further see no reason why the appellant should have been asked to proceed under the Page 31 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 Guardian and Wards Act for recovering the custody of the child. She had of course the right to do so. But she had also a clear right to an order for the custody of the child under Section 491 of the Code. The fact that she had a right under the Guardians and Wards Act is no justification for denying her the right under Section 491. That is well established as will appear from the cases hereinafter cited. (Underlining added) 15 In Veena Kapoor, the issue of custody of child was between the natural guardians who were not living together. Veena, the mother of the child, filed the habeas corpus petition seeking custody of the child from her husband alleging that her husband was having illegal custody of the one and a half year old child. The Supreme Court directed the District Judge concerned to take down evidence, adduced by the parties, and send a report to the Supreme Court on the question whether considering the interest of the minor child, its mother should be given its custody.

22. 16 In Rajiv Bhatia, Rajiv Bhatia v. Govt. of NCT of Delhi and others (1999) 8 SCC 525, the habeas corpus petition was filed by Priyanka, mother of the girl, alleging that her daughter was Page 32 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 in illegal custody of Rajiv, her husband s elder brother. Rajiv relied on an adoption deed. Priyanka took the plea that it was a fraudulent document. The Supreme Court held that the High Court was not entitled to examine the legality of the deed of adoption and then come to the conclusion one way or the other with regard to the custody of the child.

23. 17 In Manju Malini where the mother filed a habeas corpus petition seeking custody of her minor child Tanishka from her sister and brother- in-law who refused to hand over the child to the mother, the Karnataka High Court held as under:-

24. The moment respondents 1 and 2 refused to handover the custody of minor Tanishka to the petitioner the natural and legal guardian, the continuation of her custody with them becomes illegal detention. Such intentional act on the part of respondent Nos.1 and 2 even amounts to the offence of kidnapping punishable under S.361 of IPC. Therefore there is no merit in the contention that the writ petition is not maintainable and respondent Nos.1 and 2 are in legal custody of baby Tanishka.

Page 33 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 18 Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law. 19 In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians Page 34 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 and Wards Act , the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for habeas corpus."

24. While laying the emphasis that the Page 35 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 ordinary remedy lies under Hindu Minority and Guardianship Act or the Guardians and Wards Act , the Apex Court has emphasized that what is important is the welfare of the child. The thrust is on a preliminary inquiry on the basis of the affidavits before the writ court where as the detailed inquiry can be conducted by the Civil Courts and therefore the Apex Court says that in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction.

25. The Apex Court in case of Kumar V. Jahgirdar vs. Chethana Ramatheertha, reported in (2004) 2 SCC 688 was Page 36 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 considering the matter where the dispute between the married couple led to the decree of divorce obtained by the mutual consent where the custody of child of 09 years was the issue. The evidence led by the parents of the child before the Family Court, Bangalore resulted into the conclusion that the wife married to a famous cricketer and is living a different style of life involving of frequent tours with the second husband for attending the cricketing event. The child may develop the distance and dislike for a natural father. The exclusive custody of the child was directed to be given to the natural father with only right of visitation to the mother every week Page 37 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 and to keep the child with her overnight on two Sundays in a month. The High Court took a different view and reversed the judgment on the basis of the evidence on record. Before the Apex Court, when this was questioned, the Court maintained the judgment of the High Court by the detailed reasoning. It also addressed the visitation rights of the natural father and without entering into allegations, counter allegations and misapprehension expressed against each other, on the paramount consideration of the best safeguarding the interest of the child, it upheld the exclusive custody of the child to the mother and visitation right to the natural Page 38 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 father.

26. The question that needs to be addressed by this Court is as to whether the present case permits the exercise of powers under the writ jurisdiction or whether this is a fit case where without any interference the parties can be relegated to the proceedings which they may chose under the Guardians and Wards Act .

27. What has necessitated the approach of this Court under Article 226 of the Constitution of India is the subsequent event, which had disturbed the equilibrium. Undisputed facts revealed that till the decree of divorce was passed in the Family Suit Page 39 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 No.140 of 2020 delivered on 26.08.2020, the parties had with mutual consent agreed to the terms and conditions, one of which was the handing over the custody to the mother of the son begotten out of the said wedlock.

28. We note the fact that there is no visitation right even given to the father. These were mutually agreed terms which the parties had decided and there are no disputes in that connection. It is also not disputed that despite such terms when the mother suffered from COVID-19 virus, the child was sent to the father by mother for being looked-after and no dispute had ever arisen in respect of Page 40 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 either his custody or in relation to any other aspects. It is only after November, 2020 that the changes had started surfacing that according to respondent No.2, there were certain talks going on between the spouses, however, till the child custody was given for two days over a weekend according to the respondent, No.2, he had no clue of her intention to remarry. It is after the family came to know about her remarriage from the third party source that on 17.12.202, he chose to move an application CMA No.95 of 2020 before the Family Court, Ahmedabad for the permanent custody of the child. The application before the Family Court has an edifice of the telephonic talk he had Page 41 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 with the wife for grant of permanent custody. Whereas the version, which has come from the wife is that till she was settled in a new life, she has needed the child to be for a few days with ex-husband and that is how the request had gone from her.

29. We could notice the chronology of events that she had seriously objected to the application for permanent custody under the Guardians and Wards Act and the request for stay of the proceedings by way of a Special Civil Application No.6948 of 2021 had come in the month of April, 2021, likewise, this writ petition also has been preferred on 25.04.2021. Admittedly, as there is a Page 42 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 decree of the Family Court given on account of the mutual consent under Section 13 (B) of the Hindu Marriage Act, 1955, which unequivocally speaks of the custody of the child to be with the mother, the same is not in challenge before any Court or any forum. It is a subsequent event which has led to a request before the Family Court for permanent custody by way of a CMA No.95 of 2020 under the Guardians and Wards Act . The decree being valid and not questioned before any Court of law till date, the subsequent events are yet to be scrutinized and scanned by the competent court before there could a change of custody of the child, which both the parents with the conscious Page 43 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 decision had decided to be with the mother.

30. In this circumstance to urge before this Court that the writ petition would not lie as there is no illegal custody is something difficult to be accepted. Till the decree is in subsistence, the custody has to be with the mother and therefore, in the opinion of this Court, if there is a refusal on the part of the respondent No.1 to handover the custody by placing on record the subsequent events in post December, 2020 period, there shall be a need for indulgence.

31. There are two additional reasons for this Court to also further accede to Page 44 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 such a request firstly because there is no disabling ground or term incorporated in the decree of divorce or in the consent terms which have been arrived at mutually by the parties that in the event of any remarriage on the part of the wife, the custody of the child cannot continue with her. Both the spouses being young presumably they had contemplated the remarriage on both the sides and hence, this ground is not available to either side.

Secondly, the person with whom she had chosen to remarry appears to have defrauded her and while the first marriage of his had continued, he has attempted to marry her once again.

second marriage should be declared as null and void before the competent court, the same has been finalised eventually.

32. This being the case, the ground of her second marriage is no longer in existence so far as this petition is concerned. So far as the best interest of the child is concerned, it goes without saying that it is prematured for the court to conclude that it will not be if the child is with the mother, who is otherwise a natural guardian and is considered to be the one in whose presence the child's growth has taken place. This is not to conclude finally on the right of the either parents, which eventuality this Court in Page 46 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 Special Civil Application No.6948 of 2021 chooses not to entertain the petition and permits the CMA No.95 of 2020 under the Guardians and Wards Act be proceeded with, as held by the Apex Court the permanent custody of the child in that eventuality can be decided by taking into considerations the evidence that may be led by both the sides on the aspect of the custody having been handed-over to the respondent No.2.

33. Presently, it is a words against words, which have been filed by both the sides. There are certain admissions and more the denials. Both the sides have presented their versions which as held in case of Tejaswini Gaud and Ors (supra) more being on affidavit will not be needed to be accepted as the proof before the Court, however, the preliminary examination clearly indicates that the petitioner mother Page 47 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 had handed-over the custody of the child for some days and she had chosen to ask back the custody on the strength of the decree which is existing in her favour, no one can chose to be a judge in his own cause to decide that the welfare of the child would lie only with the father and therefore, noticing the mother's claim legally as the natural guardian and also coupled with the decree which is in subsistence, we pass the following order. This Court also reminds itself that child started residing with mother separate from the 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.

34. Presently the custody shall need to be handed-over to the mother. Let the same be done within a period of one week from the date of receipt of a copy of this order. It is to be done in presence of the Secretary, Gujarat Page 48 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 High Court Legal Services Committee.

The SOPs for the COVID-19 virus are in operation, following the same restricted number of persons, both the spouses shall come with the child before the Court with their requisite certificate for handing and taking over the custody.

35. The parties shall be at liberty to proceed with the Special Civil Application No.6948 of 2021 expeditiously for which they may request the concerned Court. If request comes from either side, the other side shall cooperate.

Eventually, if the Court permits the CMS No.95 of 2020 under the Guardians Page 49 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 and Wards Act to be proceeded with, none of the observations made herein will prejudice the rights of the side.

36. At this stage, learned advocate, Ms.Dhara Shah makes a request for the stay of the order on the ground that the child is with the father for about more than a year. Noticing the fact that the child was with the mother from his age 02 to 06 years and considering the fact that she is a natural mother and guardian that can never be the ground for the Court to accede to the request.

37. We have also asked the parties whether the visitation right for Page 50 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022 R/SCR.A/4482/2021 JUDGMENT DATED: 06/01/2022 father to meet the child is desirous, in the same manner in which the child used to go to the mother from Monday morning till Tuesday evening, other side has no objection the same can be permitted. Petition is disposed of accordingly.

(MS. SONIA GOKANI, J. ) (MAUNA M. BHATT,J) M.M.MIRZA Page 51 of 51 Downloaded on : Sun Apr 24 08:25:12 IST 2022