Manyata Avinash Dolani vs State Of Gujarat & 5 Other(S)

N.V.Anjaria, J

The petitioner- mother praying for writ of habeas corpus sought for custody and production of her minor child aged little more than four years Jiyansh- the corpus. The petitioner has married with respondent No.4. It is averred that proceedings under Section 125 of the Criminal Procedure Code as well as under Section 498A of the Indian Penal Code, 1860 are underway filed against the respondent husband and his family members.

Learned advocate Mr.Anand Gogia appeared for the petitioner and learned advocate Mr. A.P.Chhabra for the respondent Nos.4 to 6.

The allegations in the petition are that from the market place nearby to the parental house of the petitioner, the corpus was forcefully snatched away from the custody of the petitioner by respondent Nos.4 to 6 and unknown persons. The exact averments found in paragraph No.3.3 are as under.

" It is submitted that on 02.10.2021 (October 02, 2021) at about 08:00- 08:15 P.M. Applicant along-with his mother and minor son Jiyansh (i.e. Corpus) went for the Miscellaneous Shopping to the nearby market on two-wheeler. After some time when Applicant and her mother noticed that Respondent No.4 to 6 and 1 unknown person were following them, they immediately returned from the market. On reaching below/ near their building Respondent No.4 to 6 and 1 unknown person approached them wildly and pushed and hit the Applicant by using force and snatched her son Jiyansh (i.e. Corpus) aged about 4 years from her hands and threatened her to dare consequences of she is not agreeing for divorce and to waive alimony claimed and ran away."

3.1 The petitioner has also produced on record the photographs of CCTV camera footage from one D.K.Pan Parlour stated to have been situated in the vicinity where the incident allegedly took place seeking to fortify the allegations and averments that the corpus was forcibly taken away from the custody of the mother.

3.2 Today on the returnable date of notice, when the petition came up for consideration, the corpus was produced before the Court through the police authorities. Learned Additional Public Prosecutor submitted report dated 8.10.2021 of the Investigating Officer. The same shall remain on record.

3.3 We took up the proceedings initially in the Courtroom, however, looking to the sensitive dimensions we conducted the proceedings in the chamber. We called the petitioner and interacted with her to know her version. We thereafter called the corpus and observed the company of each other. Both had interaction in their own way.

3.4 While in company of mother, the corpus was taking instructions of the mother. We observed that the corpus drew pictures and objects such as triangle, circle and apple etc. upon being so told by the mother.

3.5 We next called the respondent No.4 husband. In course of interaction, the respondent No.4 claimed that the corpus was comfortable with him and was also studying.

3.6 It appears that the marriage of the petitioner and respondent No.4 had taken place in the year 2013. The husband and wife appears to have separated in the year 2019. In the course of interaction with them before us both had complaints and allegations with each other.

3.7 The mother petitioner claimed that right from stage of her separation with respondent No.4 her son- the corpus has been staying with her. The respondent No.4 on the other hand had different claim and stated that both were taking care of the son.

Learned advocate for the petitioner submitted that the custody of the boy was with petitioner-mother until the boy was forcibly taken away. He, therefore, requested the Court to pass interim order to handover interim custody to the petitioner-mother. Learned advocate for the petitioner relied on the decisions of the Division Bench of this Court in Sejalben Arpit Shah w/o.Arpitkumar Shah v. State of Gujarat [2019(3) GLR 2247] and also in Bhavnaben D/o.Lebabhai Rabari v. State of Gujarat [2021(3) GLH 537].

4.1 On the other hand, learned advocate for respondent No.4 relied on decision of the Supreme Court in Tejasvini Gaud v. Shekhar Jagdish Prasad Tewari being Criminal Appeal No.838 of 2019 decided on 06th May, 2019 to submit that in the child custody matters, this Court may not exercise the Habeas Corpus jurisdiction and that the other remedies in law are available. He submitted that in child custody matters, as held by the Supreme Court in above decision, the power of the High Court in granting the writ is qualified only in cases where detention of a minor by a person who is not entitled to legal custody. It was submitted that custody of corpus with the father cannot be said to be unlawful.

While dealing with the interim prayer made as above, we prima facie notice what is observed in Sejalben Pratik Shah (supra) that while deciding the dispute as to custody of child between mother and father, the Court should adopt a pragmatic view. In the said case, the Court was dealing with the habeas corpus petition only and stated that custody of minor children below age of five years should be ordinarily with the mother.

5.1 In Tejasvini Gaud (supra), the Supreme Court observed that in the child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of the minor child by parent or others was illegal and without authority in law.

5.2 In view of what we gathered in course of our interaction with the petitioner-mother, respondent No.4-husband, and from the behavior of the corpus-child in the company of the both and further considering the case put forth by the petitioner-mother as well as considering the investigation report today furnished to us, we find that the question of custody of the corpus is required to be considered finally. We, therefore, propose to consider the matter further on the next date.

We do not express any final opinion on any of the aspects of the matter, however considering the observations in the Division Bench in Sejalben Arpit Shah (supra) and further considering the pre-dominant aspect of tender age of the corpus, we are of the view that the custody of the corpus should be handed over to the petitioner-mother, subject to further and final orders which may be passed.

Accordingly we direct that the minor Jiyansh- the corpus shall remain in custody of the petitioner- mother till the next date of hearing which is fixed to be 12.10.2021. The police authorities shall ensure that the custody of the corpus goes to the mother at this stage as interim custody. The petitioner mother shall take good care of the child.

The competent police authority from the Police Station shall depute an responsible officer from the vicinity of place / house of the petitioner once before the next date and submit report about the stay of the child with the petitioner mother. The police authorities shall ensure that the custody of the child is made available to the petitioner mother and the child is ensured safe passage to the company of the petitioner.

Learned advocate for the respondents requested that they may be permitted to file reply. Either party is permitted to file their respective pleadings.