Father lost custody in HC because is only X passed and he has also to lookafter a child born out of his second wife, maternal-grand-father gets custody
Gujarat High Court Case Information System
FA/2991/2011 4/ 4 ORDER
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL No. 2991 of 2011
@ HARSUKH JAYANTI SOLANKI – Appellant(s)
DEVSIBHAI PARMAR – Defendant(s)
========================================================= Appearance :
HITESH S PADHYA for Appellant(s) : 1, MR ASHISH M DAGLI for Defendant(s) : 1,
MR.JUSTICE JAYANT PATEL
: HONOURABLE MR.JUSTICE JAYANT PATEL)
present appeal is directed against the order passed by the Family Court in Civil Misc. Application No.14/10, whereby the application of the applicant father to get the custody of the minor children has been rejected.
relevant facts are that the appellant had married with Anitaben and out of the wedlock, there were two children, one was minor son Sumit and the another was daughter Manisha. After marriage, on 19.08.2005, wife Anita committed suicide and against the appellant, criminal complaint was also filed under sections 498A, 306 and 114 of the IPC and when the matter was pending before the Sessions Court, there was some settlement and thereafter, the appellant has been acquitted. Some lumpsum amount for maintenance of the children was also deposited out of the settlement. It is thereafter, the present appellant preferred application under the Guardians and Wards Act and Minor Guardians Act for getting the custody of the minor children. The Family Court at the conclusion of the proceeding found that it would not be in the interest and welfare of the children to give the custody to the father and therefore, has declined the custody by rejecting the application.
Under these circumstances, the present appeal before this Court.
We have heard Mr.Padhya for the applicant and Mr.Viral Vyas for Mr.Dagli upon the advance copy.
The approach on the part of the Family Court to take into consideration the welfare of the children as of prime importance cannot be faulted with and the same is rather in consonance with the well settled principles of law. We may also record that at paragraph 19, the learned Judge observed thus -
After considering the rival submissions and considering the facts of the case, both minor children Sumit and Manisha were called before this Court and at that time, maternal-grand-father/opponent and both Ld.Advocates for the parties were present. It appears that both the children are intelligent children. They are more mature than their age. I talked to the children exclusively for about 15 to 20 minutes in the Court. It appears that they are happy with their maternal-grand-father and they have stated that they are lookafter very well. They have categorically stated that they are not willing to live with their father. I tried to pursue the children to go and live with their father, but they refused to do so. After talking with the children and assessing their mind, it would not be in the interest and welfare of the children to handover their custody to their father/applicant.”
Thereafter, the Court has recorded the finding at paras 21 to 23 as under:
“21. In the present case, factual aspect are different, both the children are in custody of maternal-grand-father/opponent since the year 2005. The opponent/maternal-grand-father is retired principal and he is keeping eyes in the education of minor children. As against this, the applicant is only X standard pass and he has also to lookafter a child born out of his second wife.
22. Under these circumstances, I am of the view that welfare of the child is paramount consideration for this Court. If the children are kept with the maternal-grand-father considering the wishes of the minor children and financial and education status of the maternal-grand-father/opponent, children would get bring future. Section-19 of the Guardians and Wards Act empowers Courts to make such order for the temporary custody and protection of the person or property of the minor as it thinks proper. In the matters of custody, as well settled by judicial precedents, welfare of the children is the sole and single yardstick by which the court shall assess the comparative merit of the parties contesting for custody.
23.Under the circumstances, bearing in mind the paramount consideration of the welfare of the children, I am of the view that interest and welfare would be served best if the children continue to be in the custody of maternal-grand-father. In my view, at present, it is not desirable to disturb the custody of the minor children and therefore, exclusively custody of both children i.e. Sumit and Manisha alias Mahek are required to be kept with the maternal-grand-father/opponent and the father/applicant is given visitation right to the children. …..”
We do not find any infirmity in the approach of the Family Court keeping in view the welfare of the children.
Under the circumstances, the appeal is meritless. Hence, dismissed.
Gujarat High Court Case Information System
SCR.A/1822/2011 4/ 4 ORDER
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPLICATION No. 1822 of 2011
MANOJBHAI MADHWANI – Applicant(s)
OF GUJARAT & 2 – Respondent(s)
DP KINARIWALA for Applicant(s) : 1, MR AJ DESAI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, None for Respondent(s) : 2 -
: HONOURABLE MR.JUSTICE A.L.DAVE)
habeas corpus petition is preferred by mother of minor Bansi and Sagar – her children, who are presently in custody of respondent No.3 – their father. The petitioner was married to respondent No.3 and from the wedlock, she delivered two minor children. Later on, there were disputes between the petitioner and respondent No.3 and therefore, they mutually agreed to have a divorce deed executed as per their custom, that was done on 17.9.2008. One of the terms of the divorce was that custody of minor Bansi and Sagar would remain with present respondent No.3 – father of the children. However, now, the petitioner has approached this Court with this habeas corpus petition apprehending/alleging unlawful detention of the minors and ill treatment being meted out to them.
is stated in the petition in para 4.1 of the petition that “it is also relevant to submit before this Hon’ble Court at this stage that in clause 4 of the said deed, it is specifically mentioned that the minor children namely Bansi and Sagar were to be kept with the present petitioner.”
is the clause in document dated 12.9.2008, which is not a registered document. Thereafter, the second document was prepared on 17.9.2008, where it was agreed that the minors will be kept with the father – present respondent No.3.
advocate Mr. Kinariwala submitted that a writ of habeas corpus would be maintainable and while entertaining this writ of habeas corpus, the Court would keep in mind the interest of the minor. Learned advocate Mr. Kinariwala relied on decision in case of Dr. Ashish Ranjan Vs. Dr. Anupama Tandon reported in 2011 AIR SC (Weekly) 249.
our view, the petitioner has tried to take a shortcut and has not resorted to a remedy available under relevant law. The dispute regarding custody of minor children between husband and wife cannot be decided in a writ petition, where the Court would be faced with and would be required to adjudicate on various disputed questions of fact. It is alleged in the petition that respondent No.3 has remarried and corpus are being ill treated and physically tortured. It is also alleged that there are circumstance beyond the control of the petitioner which compelled her to forgo custody of corpus at the time of execution of deed of dissolution of marriage. For bringing such issues, parties would be required to lead evidence and therefore, without disputing the fact that the Court, while dealing with such matters, should keep in mind the interest of the minor as the prime consideration. We do not entertain this petition for the reasons stated herein above. A competent civil Court can examine the dispute whether there is any risk to children, whether they are ill treated, whether they are confined etc. Even, there is no averment in the petition about the children being illegally confined or detained. Respondent No.3 is a natural guardian and the petitioner had, while taking divorce, agreed that the custody of minor would remain with respondent No.3 – father of the children and therefore, we refuse to exercise our extraordinary jurisdiction in given set of circumstances.
far as the decision relied on by learned advocate Mr. Kinariwala is concerned, learned advocate’s emphasize was on the fact that technicalities cannot prevent a Court from exercising its powers. Learned advocate submitted that even in a case where parties have agreed to a question of custody of minors, the Court may exercise its jurisdiction and may order to the contrary. We have examined the said judgment and we found that the observations were made by the Apex Court in respect of the powers enjoyed by the Apex Court under Article 142 of the Constitution of India. These powers are enjoyed only by the Apex Court and the observations made in respect of that jurisdiction cannot be applied to the present case.
the aforesaid background, the petition stands dismissed.
IN THE HIGH COURT OF UTTARAKHAND
Appeal from Order No. 292 of 2010
Shesh Nath Rawat S/o Late Atuvaru Rawat R/o 49/ Type-4 Graham Marg, VG Colony, Alambag, Lucknow (U.P.) ………. Appellant
Smt. Mamta Rawat W/o Shesh Nath Rawat
D/o Sri Brizmohan, R/o Upper Bazar-Karanprayag District Chamoli (Uttarakhand) …….Respondent
Sri Vinod Tiwari, Advocate present for the appellant. Sri Lok Pal Singh, Advocate present for the respondent.
July 21, 2011
Coram : Hon’ble Prafulla C. Pant, J.
Hon’ble Servesh Kumar Gupta, J.
Prafulla C. Pant, J.(Oral)
This appeal, preferred under Section 19 of Family Courts Act, 1984, is directed against judgment and order dated 17.07.2010, passed by the Principal Judge, Family Court, Dehradun in Suit No. 15/2010, whereby said court has directed the father, under Section 26 of Hindu Marriage Act, 1955, to deliver the custody of the son Aryan be given to mother (respondent).
2. Heard learned Counsel for the parties and perused the papers on record.
3. Brief facts of the case are that the appellant Shesh Nath Rawat got married to respondent Smt. Mamta Rawat on 09.05.2002, following Hindu rites. Two sons, namely, Aryan and Ishan born out of the wedlock. Both the parties to matrimony are in Government Service. Appellant (husband) 2
is Entertainment Tax Inspector in District Mau (U.P.), and respondent (wife) is a Teacher in Government Primary School in District Chamoli (Uttarakhand). It appears that relations between the parties soured and respondent (wife) instituted the suit for divorce, under Section 13 of Hindu Marriage Act, 1955, before Principal Judge, Family Court, Dehradun.
4. During the pendency of the suit, respondent (Mamta Rawat) appears to have moved an application 7C before trial court for transfer of custody of Master Aryan, who was living with his father, to her, which was allowed by the said Court.
5. After admission of this appeal, this Court summoned the child (Master Aryan), who was in the custody of his father. On 23.09.2010, the boy was produced before this Court, and we heard learned Counsel for the parties and also interacted with the boy. The child opted to stay with his father. He further told that he is studying in City Montessori, School, Lucknow and does not want to get disturbed.
6. It has come on the record that one of the sons Ishan is living with his mother, and the another one Aryan is living with his father. Learned Counsel for the respondent pleaded before us that since father is posted in District Mau (U.P.), the child cannot be left with him. However, on close examination of facts, we find that father is giving education to Master Aryan in City Montessori School, Lucknow, which is a prestigious one.
7. It is settled principle of law that in the matter of the custody of child, paramount consideration is welfare of 3
the child. The mother, who is posted in a Primary School in a remote place in District Chamoli, cannot provide the education to Master Aryan, which his father is providing him at Lucknow.
8. Having heard learned Counsel for the parties and after going through the papers on record and considering the interest of the child, in the above circumstances of the case, we are of the view that the trial court has erred, in law, in directing the father to transfer the custody of Master Aryan to the mother. Therefore, we allow the appeal. Impugned order dated 17.07.2010, passed by Principal Judge, Family Court, Dehradun, on an application 7C, is hereby set aside.
(Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.) 21.07.2011
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal From Order No.301 of 2008
1. Godhan Singh Jalal
S/o Shri Harak Singh Jalal
2. Smt. Gayatri Devi
W/o Shri Godhan Singh Jalal
Both R/o Village Gangapur Choi,
Police Station Ramnagar,
Shri Kishan Singh Bisht
S/o Late Lacham Singh Bisht,
R/o Village Bokta, P.O. Chaunala,
Tehsil and P.S. Gangolihat,
District Pithoragarh .Respondent
Shri Sarvesh Agarwal, Advocate present for the appellants. Shri Vijay Bhatt, Advocate present for the respondent.
Dated: 14th March, 2011
Coram: Hon’ble Prafulla C. Pant, J.
Hon’ble V.K. Bist, J.
Prafulla C. Pant, J. (Oral)
This appeal is directed against the order dated 05.07.2008 passed by Judge, Family Court, Nainital in Misc. Civil Case no.14 of 2004, whereby said Court has allowed the application moved by the respondent for the custody of his children.
2. Heard learned counsel for the parties and perused the Lower Court’s Record. Since the parties to the litigation are present in person alongwith the children, we heard them in person also.
3. Brief facts of the case are that respondent-Kishan Singh Bisht got married to Padma Devi (daughter of the appellants-Godhan Singh Jalal & Smt. Gayatri Devi). Out of said wedlock, two children, namely, Pooja Bisht & Gaurav @ Paras Bisht were born. It appears that on 06.10.2003, Padma Devi died unnatural death and a criminal case was registered against the respondent relating to offences punishable under Section 304 B, 498 A, 504 I.P.C. and one punishable under Section 3/4 of the Dowry Prohibition Act, 1961. It further appears from the record that the respondent Kishan Singh Bisht was released on bail in said case, but the trial is yet not over. On 15.06.2004, respondent Kishan Singh Bisht (father of the two children) moved an application under Guardian and Wards Act, 1890 before the Family Court, Nainital seeking custody of the two children, who were living with their maternal grand parents (present appellants). The Trial Court vide impugned order dated 05.07.2008 allowed the said application and directed the maternal grand parents of the children to give their custody to the respondent (father of the children).
4. Admittedly, respondent Kishan Singh Bisht is father of the two children, namely, Pooja Bisht & Gaurav @ Paras Bisht. It is also admitted to the parties that appellants Godhan Singh Jalal and Smt. Gayatri Devi are maternal grand parents of the children. It is also not disputed that the mother of the children has died unnatural death in the year 2003. Also, there is no dispute that at that point of time Pooja Bisht 3
(daughter) was aged two years and Gaurav @ Paras Bisht (son) was aged one year. The respondent serves in the Indian Army. Being father of the children, he claimed custody of the children, after his release from the jail. The Trial Court appears to have passed the impugned order considering the fact that the respondent, being father, is a natural guardian of the children.
5. However, it is settled principle of law that in the matters of dispute relating to the custody of children, the most important consideration is the interest of the children. The children, who are present before this Court and are too young. They are being looked after by their maternal grand parents. The appellants, who are the maternal grand parents, pleaded before us that they are looking after/educating the children to the best of their ability and giving no cause of concern to the father of the children. The young children, when enquired by us, in the presence of their father, as to whether they would like to live with their maternal grand parents or with the father, they orally expressed their desire before us that they want to continue to live with their maternal grand parents. They are too young, the elder child is studying in Class III and the younger one is in Class II. Though, the father of the children (present respondent) pleaded before us that he should be given custody of his children but in the present facts and circumstances of the case, we are of the view that keeping in mind the paramount interest of the children, it is not desirable to grant custody of the 4
children to their father, at this stage. We are conscious of the fact that the father is facing a trial in respect of offence punishable under Section 304 B I.P.C. and the trial is not yet concluded. If it results in conviction, the interest of little children would get seriously affected by giving their custody to their father, at this stage. In Yogesh Kumar Gupta Vs. M.K. Aggarwal A.I.R. 2009 Uttarakhand Page 30, this Court has expressed the similar view in the similar kind of dispute.
6. In the above circumstances, we are of the view that the Trial Court has erred in law by directing the appellants to transfer the custody of the children Pooja Bisht & Gaurav @ Paras Bisht to the respondent. The application moved by the respondent before the trial court, in our opinion, is liable to be dismissed, at this stage. Accordingly, we allow this appeal and set aside the order dated 05.07.2008 passed by Family Court, Nainital in Misc. Civil Suit No.14 of 2004. However, we direct that the respondent shall be allowed to visit and meet his children in the house of the appellants, at least once in a month, if he comes to meet them.
7. No order as to costs.
(V.K. Bist, J.) (Prafulla C. Pant, J.) 14.03.2011
CR.MA/1200/2011 4/4 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION No. 1200 of 2011
LABHUBHAI BABUBHAI DESAI – Applicant(s)
STATE OF GUJARAT & 1 – Respondent(s)
========================================================= Appearance :
MS HETVI H SANCHETI for Applicant(s) : 1,
Mr.L.R.Pujari, APP for Respondent(s) : 1,
MR RJ GOSWAMI for Respondent(s) : 2,
HONOURABLE MR.JUSTICE MD SHAH
Date : 06/04/2011
1. This petition under Section 482 of the Code of Criminal Procedure has been filed by the petitioner for quashing and setting aside order dated 18-12-2010 passed by the learned Metropolitan Magistrate, Court No.1, Ahmedabad, in Domestic Violence Case No.1109 of 2010 and order dated 13-1-2011 passed by the learned City Sessions Judge, Ahmedabad, in Criminal Appeal No.513 of 2010 whereby petitioner was directed to hand over custody of two minor children to the respondent No.2 till final disposal of Domestic Violence Case No.1109 of 2010 filed by the respondent No.2.
2. The case in short is that respondent No.2, who is the wife of the petitioner, filed Cri.Misc.Appln.No.50 of 2010 in the Court of learned Metropolitan Magistrate, Ahmedabad, under Sec.97 of Cr.P.C. for issuance of search warrant for getting custody of three children presently staying with the petitioner. Said application was allowed on 25-6-2010 against which, petitioner preferred Cri.Misc.Appln.No.334 of 2010 before the Sessions Court and it was allowed by quashing and setting aside the order passed by the learned Magistrate. However, the petitioner was ordered to keep the children present in the trial Court on 14-10-2010. Being aggrieved by the same, petitioner approached this Court by filing Cri.Misc.Appln.No.12567 of 2010 under Sec.482 of Cr.P.C. This Court (Coram: Akil Kureshi,J.) vide order dated 25-10-2010 ordered to keep custody of eldest daughter with the petitioner. The respondent No.2 was given liberty to make appropriation application under the Protection of Women from Domestic Violence Act before the Magistrate seeking appropriate relief. In pursuance of which, the respondent NO.2 filed Domestic Violence Case No.1109 of 2010 before the Court of learned Metropolitan Magistrate for interim custody of twin children aged five years. The learned Metropolitan Magistrate ordered the petitioner to hand over interim custody of two minor children to respondent No.2. Criminal Appeal No.513 of 2010 preferred by the petitioner was rejected by the learned City Sessions Judge, Ahmedabad. Hence, the present petition.
3. Heard learned advocate for the petitioner, Ms.Hetvi H.Sancheti, learned APP, Mr.L.R.Pujari for the respondent No.2 and learned advocate, Mr.R.J.Goswami for the respondent No.2.
4. This Court has gone through both the orders passed by the trial court as well as the appellate Court. This Court has also called the minor children in the chamber for ascertaining the wish of the children in presence of learned advocates appearing for the respective parties. It is ascertained from the children that they have love and affection towards their father and grandfather but not towards their mother. They are studying at present by staying with their father. This Court could find that the children are not ready to leave their father even for a single day. Normally, custody of the minor children should be kept with the mother as it is the mother who can take best care of the children. However, in the present case, this Court could see that the children do not have slightest love and affection towards their mother and hence, it will take much time for the children to get adjusted with mother and get proper care and attention. However, as the children are already with the father and have been taking much care and caution by the father to the utmost satisfaction of children and in the best interest of the children almost in all respects, this Court is of the view that if the custody of the children is left with the father, the children would be more happier. It is true that children have been staying with their father and, therefore, children would not be inclined to stay with their mother as they did not get love and affection of mother. However, keeping the welfare, wish and interest of the children in mind, this Court is of the opinion that it will not be in the best interest of the children to keep their custody with the mother especially when they have shown their love and affection towards their father and did not have slightest inclination towards their mother. These aspects have not been considered by the trial court as well as the appellate court. They have not even made an attempt to call the children in chamber for ascertaining their wish. It is seen that a totally illegal order has been passed by the trial court in directing the complainant to file application under the Guardian and Wards Act and to obtain order qua custody of two minor children and it is a matter of surprise that said order has been confirmed by the learned Sessions Judge.
5. In view of the above, both the orders dated 18-12-2010 passed by the learned Metropolitan Magistrate Court No.1 in Domestic Violence Case No.1109 of 2010 and 13-1-2011 passed by the learned Sessions Judge in Criminal Appeal No.513 of 2010 require to be quashed and set aside and are accordingly quashed and set aside. This petition is accordingly allowed. Looking to the peculiar facts and circumstances, court below is directed to decide Domestic Violence Case No.1109 of 2010 as early as possible preferably within three months from the date of receipt of copy of this order. The parties are at liberty to approach the Civil Court under the Guardian and Wards Act for custody of the children and if such proceedings are initiated by either of the parties, the observations made by this Court in this order will not come in the way of parties while deciding such application.
SCR.A/2446/2010 8/8 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION No. 2446 of 2010
For Approval and Signature:
HONOURABLE MR.JUSTICE A.M.KAPADIA
HONOURABLE MR.JUSTICE BANKIM.N.MEHTA
Whether Reporters of Local Papers may be allowed to see the judgment ?
To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
Whether it is to be circulated to the civil judge ?
JAYESHKUMAR RAMANLAL PATEL – Applicant(s)
STATE OF GUJARAT & 2 – Respondent(s)
========================================================= Appearance :
MR DM AHUJA for Applicant(s) : 1
MR. LB DABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1 – 2 MR MAHESH BARAIYA for Respondent(s) : 3,
HONOURABLE MR.JUSTICE A.M.KAPADIA
HONOURABLE MR.JUSTICE BANKIM.N.MEHTA
Date : 21/12/2010
(Per : HONOURABLE MR.JUSTICE A.M.KAPADIA)
1. Rule. Mr. Dabhi, learned APP appears and waives service of notice of Rule on behalf of the respondent Nos.1 and 2, whereas Mr. Mahesh Baraiya, learned advocate appears and states that he has received instructions to appear on behalf of respondent No.3 and he shall enter his appearance representing respondent No.3 during the course of the day and he also waives service of notice of Rule on behalf of the respondent No.3.
2. By filing instant petition under Article 226 of the Constitution of India, the petitioner has prayed to issue writ of Habeas Corpus or any other appropriate writ, direction and/or order directing respondent No.2 to produce corpus Prakruti daughter of the petitioner, who is allegedly in illegal and wrongful confinement/detention of respondent No.3 – Rahul Suvarnasinh Thakur and hand over her custody to him.
3. As per the averments made in the petition, the petitioner has two daughters, out of which, eldest is Prakruti and she is studying in the First Year MBA of Dalia Institute of Management, Kanera. Respondent No.3 -Rahul Suvarnasinh Thakur is young boy of 19 years and he belongs to the dreaded Fracture Gangof Odhav area and his associates are involved in serious criminal activities of threatening vulnerable businessmen with dire consequences of inflicting fractures for exortion of money. The father of the respondent No.3 is a poor newspaper vendor and it appears that the respondent No.3 has no fear of law.
3.1 It is further averred that on 27.11.2010 at 4 o’clock in the early morning, the petitioner came to know that his daughter Prakruti was missing in a room and her cloths and books were also missing. He therefore, started search of his daughter, but he came to know from friends of his daughter and some neighbourhood boys that Prakruti might have been abducted by the respondent No.3 since they had come to know that respondent No.3 was trying to get close to Prakruti. However, the petitioner could not trace out his daughter.
3.2 It is further averred that thereafter, the petitioner lodged the complaint before the respondent No.2 on 27.11.2010 at 5:30 p.m. Thereafter, the petitioner continued his search and received information that corpus Prakruti has been abducted by respondent No.3 – Rahul Suvarnasinh Thakur along with his associates for forcing her to marry respondent No.3 – Rahul Suvarnasinh Thakur against her wish by giving threats of his association with fracture gang and that if she does not marry the respondent No.3, the member of the fracture gang will attack upon the petitioner.
3.3 It is further averred that the petitioner therefore, informed the respondent No.2 to take necessary legal action including lodging of the FIR against all the concerned accused involved in the offence and try to obtain custody of corpus Prakruti from the abductors and set her free.
3.4 It is also alleged that the respondent No.2 told the petitioner to find out corpus Prakruti himself and inform him so that he can reach the spot in police jeep to catch the accused. The attitude of the respondent No.2 appears careless and negligent and it appears that he has no concern for human life.
3.5 It is further averred in the petition that as per the information of the petitioner, corpus Prakruti was having mobile No.9662263048 and respondent No.3 is having mobile No.9558199691 and the respondent No.3 is in touch with his brother Kunjal who is having mobile No.9374473301. The petitioner has received authentic information that lastly, the respondent No.3 was moving in the Koraj Khodiyar Adalaj area of Dascroi taluka and respondent No.2 could have kept the aforesaid three mobile phones in surveillance to nab the accused along with corpus Prakruti.
3.6 The petitioner further averred that life of corpus Prakruti is in serious danger and she might be killed or she might be compelled to marry even though the respondent No.3 is only 19 years of age is not having legally valid marriageable age under the Hindu Marriage Act, apart from the consent of the corpus Prakruti. The death of birth of respondent No.3 as per school records of Navrang School, Odhav in General Register of 2005-2006 is 4.2.1991 and therefore, at present, the respondent No.3 is aged about 19 years and few months, whereas corpus Prakruti is older than the respondent No.3 Rahul Suvarnasinh Thakur and her birth date is 27.7.1990. Therefore, respondent No.3 is putting fear of life on the corpus Prakruti to marry him illegally and against her wish.
3.7 It is further averred that the parents of the respondent No.3 Rahul Suvarnasinh Thakur are trying to fabricate forged documents and illegal affidavits to save their skin from the prosecution that may be launched against the accused and they are not trying to disclose whereabouts of the respondent No.3 and the corpus. The petitioner has therefore, filed this petition and prayed for the relief to which the reference is made in the earlier paragraph of the judgment.
4. This Court vide order dated 8.12.2010 issued Notice to respondents, which was made returnable on 21.12.2010 on condition that the applicant shall deposit Rs.5000/- as a cost, to show his bona fide, on or before 9.12.2010 before the Registry of this Court.
5. Today when the matter is called out, Mr. LB Dabhi, learned APP for the respondent Nos.1 and 2, upon instructions received from Mr. GN Solanki, ASI, Odhav Police Station, Ahmedabad who is personally present in the Court, states that he has instructed relatives of the respondent No.3 – Rahul Suvarnasinh Thakur to the effect that respondent No.3 shall produce the corpus Prakruti before the Court. He further states that respondent No.3 Rahul Suvarnasinh Thakur is personally present before the Court and wants to produce corpus Prakruti before the Court. We have therefore, permitted him to produce the corpus before us.
6. We have ascertained wish and willingness of corpus Prakruti. She has in unequivocally terms stated before us that today she has come from the house of respondent No.3 Rahul Suvarnasinh Thakur with whom she wants to stay, who has produced her before the Court. She has further stated that she is not in illegal detention of respondent No.3 Rahul Suvarnasinh Thakur. She has stated that she, at her own will, voluntarily, accompanied respondent No.3 Rahul Suvarnasinh Thakur. She has further stated that she has married with respondent No.3 Rahul Suvarnasinh Thakur. She has further stated that her birth date is 27.7.1990. The said fact is not disputed by Mr. DM Ahuja, learned advocate for the petitioner, as he himself has produced the birth certificate of the corpus issued by the Talati-cum-Mantri, village Kathlal, Tal: Kapadvanj, wherein the date of birth is shown as 27.7.1990. Therefore, as on today, she is more than 18 years of age. She has also stated before the Court that age of respondent No.3 Rahul Suvarnasinh Thakur is above 19 years and the said fact is not disputed by Mr. Mahesh Baraiya, learned advocate for the respondent No.3. She has categorically stated that she does not want to go with her father the petitioner, who is personally present before the Court, at her parental home.
7. In the case of Gian Devi v. The Superintendent, Nari Niketan, Delhi and others, (1976) 3 SCC 234, the Supreme Court has observed that a woman who has attained majority is free to stay in any place she likes without constraints by her parents or husband. What is held by the Supreme Court in the above referred to case is that against her wishes a major girl cannot be sent to Nari Niketan or to her parents house.
8. On the facts and circumstances emerging from the record of the case and more particularly in view of the statement made by corpus Prakruti before the Court that she is not in illegal detention of respondent No.3 Rahul Suvarnasinh Thakur as well as she does not want to reside with her father petitioner, who is personally present before the Court so also in view of the reported decision of the Supreme Court as referred to herein above, since the corpus Prakruti is more than 18 years of age, she is sui juris and hence, no fetters can be placed upon her choice of the person with whom she has to stay. We have therefore, permitted her to go wherever she wants to go.
9. Seen in the above context, the Habeas Corpus petition lacks merit and deserves to be rejected.
10. At this stage, Mr. DM Ahuja, learned advocate for the petitioner does not press this petition and seeks leave to withdraw the same with a prayer that the amount of Rs.5000/- deposited by the petitioner, as a condition precedent for issuance of notice, may be paid back to the petitioner, as the petitioner being the father of the corpus Prakruti, has every right to inquire about the welfare of his child and the intention of the petitioner in filing the petition is only to know the welfare of his child.
11. Mr. Dabhi, learned APP as well as Mr. Mahesh Baraiya, learned advocate for respondent No.3 have no objection if leave as prayed for is granted and also the amount of Rs.5000/- be paid back to the petitioner.
12. In view of this, this Habeas Corpus petition is disposed of as it is withdrawn. Rule is discharged.
13. Registry is directed to pay back the amount of Rs.5000/- to the petitioner upon due verification.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL NO. 86 OF 2010
Popendra Datt Painuly,
S/o Sri Purshottam Datt Painuly,
R/o Tehri Visthapit Basti, Village Pathri, Near Pathri Railway Station, Tehsil and District Haridwar. .Appellant.
1. Smt. Sunita,
D/o Sri Shyam Lal Ratudi,
C/o Shanti Prasad Kotiyal,
R/o Gali No. 6, Haridwar Road, I.D.P.L. Durga Mandir Rishikesh, P.S. Rishikesh, District Dehradun.
2. Km. Ritu, D/o Popendra Datt Painuly, Through her guardian Mother Smt. Sunita, D/o Sri Shyam Lal Ratudi, C/o Shanti Prasad Kotiyal, I.D.P.L. Durga Mandir, Rishikesh, P.S. Rishikesh, District Dehradun. ..Respondents.
Present:- Sri Vivek Shukla, Advocate for the appellant.
Coram: Hon’ble Prafulla C. Pant, J. Hon’ble Sudhanshu Dhulia, J.
Prafulla C. Pant, J. (Oral)
1. This is Delay Condonation Application No. 10753 of 2010 for condonation of delay in filing the appeal against order dated 29.3.2010, passed by Additional Judge, Family Court, Rishikesh in Misc. Case No. 4 of 2008 (G & W).
3. There is delay of 232 days, which is sufficiently explained in the affidavit filed by the appellant. The Delay Condonation Application No. 10753 of 2010 is allowed, and delay is condoned.
4. Also heard on admission, and perused the order dated 29.3.2010 passed by trial court, whereby the application for custody of female child to the appellant (father) is declined.
5. Brief facts of the case are that appellant Popendra Dutt Painuly got a decree of divorce against his wife Smt. Sunita (respondent no. 1) vide judgment and order dated 3.7.2007 passed by Judge, Family Court, Haridwar in Original Suit No. 33 of 2007. It appears that two children (both female) had born out of the wedlock, and they were living with their mother. An application was moved before the Additional Judge, Family Court, Haridwar for custody of child Kumari Ritu, aged 6 years, by the father (present appellant).
6. The impugned order shows that respondent Smt. Sunita brought Kumari Ritu to give the custody of the child to the present appellant in the court. But the child started crying and insisted that she would not leave company of her maternal grand-father, with whom her mother is living. Keeping in mind the interest of the child, the trial court rejected the application for custody of child, moved by the father.
7. It is a settled principle of law that in the matters of custody of children, the paramount consideration is the interest of the child. It is a case of custody of a minor female child, aged 6 years, who expressed before the court that she is not inclined to go to with her father, and insisted that she would live with her maternal grand- father, where she is living with her mother. Considering the facts and circumstances of the case, this court does 3
not find any illegality in the order dated 29.3.2010 passed by the trial court on the application, moved by the divorcee husband (father of the child).
8. Therefore, the appeal is dismissed summarily with the observation that the appellant is not barred from moving fresh application in the changed circumstances of the case, for the custody of the child.
(Sudhanshu Dhulia, J.) (Prafulla C. Pant, J.) 23.12.2010