Gujarat High Court
Bhavnaben D/O Lebabhai Rabari vs State Of Gujarat on 25 June, 2021
Author: Sonia Gokani
Bench: Sonia Gokani, Gita Gopi
R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 9007 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the judgment ? NO
4 Whether this case involves a substantial question of law as to the NO
interpretation of the Constitution of India or any order made thereunder ?
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BHAVNABEN D/O LEBABHAI RABARI
Versus
STATE OF GUJARAT
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Appearance:
MS ARCHANA R ACHARYA(2475) for the Applicant(s) No. 1
A A DAUDIVHORA(7516) for the Respondent(s) No. 4,5,6,7,8
NOTICE SERVED(4) for the Respondent(s) No. 2,3
PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 25/06/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. This is an application preferred under Article 226 of the Constitution of India by the mother seeking custody of her daughter, who is presently with her divorced husband.
2. The petitioner married the respondent No.4 on 10.05.2011 and her daughter came to be born out of the Page 1 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 said wedlock. Between the spouses, due to internal disputes which had led to irretrievable break down of the marriage, the divorce was perceived to be last resort and accordingly, on 04.10.2020, by way of a customary divorce permissible in their caste, the spouses chose to severe their ties finally.
3. It is the say of the petitioner that at the time of the divorce, it had been decided between the parties that the daughter would continue to be with the mother and the respondent No.4 whenever would choose to meet his daughter he would be permitted to so do it. In between, he had taken the daughter for a few days and had returned her to mother.
4. On 02.12.2020, the respondent No.4 took his daughter for some days and the petitioner was under the impression that he would be returning the daughter after a few days. When that did not happen, and when the petitioner realized that the respondent No.4 got engaged with the third person, on 09.12.2020, her brother and cousin had gone to village Methan to take back the Page 2 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 daughter. The former husband-respondent No.4 had denied to handover the custody of the child and instead, had abused the relatives of the petitioner.
5. The grievance on the part of the petitioner is that the daughter is only four years of age and she is required to be with her mother and instead she has been illegally detained by the respondent Nos.4 to 9. The mother is not being permitted to meet the daughter therefore, she firstly chose to give an application to P.S.I., Kakoshi Police Station. She has expressed her apprehension that the daughter was not well and may suffer further for want of care of mother. Therefore, in absence of any efficacious remedy, in the present pandemic, she has chosen to approached this Court by way of writ petition seeking the writ of Habeas Corpus or any other appropriate writ with the following reliefs:
"12...
a. To admit and allow this petition.
b. Your Lordships may be pleased to issue writ of Habeas Corpus or any other writ and directing the respondent authority to produce the corpus Jensi before this Hon'ble Court.
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c. Pending admission, final hearing and disposal of this petition appropriate writ of Habeas Corpus or order or direction against the respondents for production and the corpus-Jensi before this Hon'ble Court be passed in the interest of justice;
d. To pass any other and further orders as may be deemed fit and proper."
6. Noticing the fact that this petitioner is seeking the production of the corpus, who is a daughter born out of the wedlock of these litigants and who after the customary divorce on 04.10.2020 was to be continued in the custody of the mother, has been allegedly unauthorizedly taken away by the divorced husband-respondent No.4 herein and noticing the age of child, this Court issued the notice directing the corpus to be brought before it through the video conference on 06.01.2020.
6.1 On the returnable date i.e. 13.01.2020 the respondent No.4-father of the corpus kept the daughter present. He admitted that the customary divorce had already been taken place between the spouses and it was agreed by both the sides that the custody of the daughter needs to be continued with Page 4 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 the father although, there is nothing reduced into the writing. He emphasised that for retaining the custody of his child, he has paid the substantial amount and the amount has been given to the parents of the petitioner. He also expressed his wish to take the petitioner back as his wife. Respondent No.4 is serving as a teacher in District Kutch and the child essentially is being looked after by the grandparents. He also has admitted that he has been engaged elsewhere, but still insisted that he can once again start the martial life with the petitioner.
7. In these circumstances, we made a request to the Member Secretary, Gujarat State Legal Service Authority, Shri H.S.Mulia to personally mediate in this matter as the circumstances themselves necessiated mediation in the matter.
8. On 25.01.2021, affidavit-in-reply has been filed by the respondent No.4. According to whom, this is nothing but-the abuse of process of law. The corpus being the minor daughter is neither in wrongful confinement of her Page 5 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 father nor can she be said to be unauthorizedly detained by the father. The custody was handed-over on the permanent basis by the petitioner herself on 04.10.2020 in presence of the members of family, friends and relatives. It is the say of the respondent that the petitioner was not willing to take custody of the corpus at the time of divorce and the respondent No.4 since has a joint family, they accepted her custody. The present petition is preferred misrepresenting the facts. The intent on the part of the petitioner is to extract money and the child has been used as an instrument. The petitioner has extracted Rs.9.50 Lakh under the guise of divorce and after getting the amount, she wants the custody of the child back. She is neither interested in a custody of the child nor anything else, but, the monetary aspect alone.
8.1 According to the respondent No.4, there were about more than 250 persons present at the time of meeting of compromise at Siddhpur Unjha Highway, Near Avkar Hotel Unjha Road on 04.10.2020. The petitioner in that meeting had not uttered a single word about the custody of her child. He has also Page 6 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 annexed affidavits of the Panchas and the relatives, who were present at the time of compromise meeting.
8.2 According to the respondent, he needed to take a loan from IIFL Finance (Formerly Known as IIFL Holdings Limited) and DCB Bank, Kakoshi Branch by mortgaging some gold ornaments of their family members for making the payment of Rs.9.50 Lakh.
He also denied that there was any attempt of taking away the corpus from the petitioner as she continued to be with her father from 04.10.2020. The respondent No.4 said that he is a teacher at Raydhanjar Panchayati Primary School, Mouje village Raydhanjar, Taluka Abdasa, District Kutch. The distance between village Raydhanjar where he works and Visnagar where he resides with his parents is about 500 kms and it is about 12 hours run by car. It is impossible for him to visit Visnagar for taking away the minor daughter as alleged by the petitioner. The entire story of taking away the minor daughter is concocted as the customary divorce has taken place Page 7 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 between the spouses, where she is not entitled to take back the child on the ground of engagement or the remarriage of respondent No.4.
8.3 The respondent No.4 further has urged that he resides in a joint family. The child has a grandmother, paternal aunt and just because he needs to remarry that would not make the custody of the child illegal.
He has also produced various photographs to reflect his love and affection for the child. The affidavits of the four neighbors to contradict such allegations also have been reproduced.
8.4 It is reiteratively emphasised that the respondent No.4 being the father, cannot be said to have an illegal custody and the writ of Habeas Corpus is not maintainable. He ephasised on the affidavits of two of his neighbors Shri Maganbhai Cheharbhai Desai and Shri Kanjibhai Bababhai Desai, who have confirmed the love and affection enjoyed by the corpus daughter from the respondent No.4 and his family.
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8.5 According to the respondents, the present petition is nothing but a foul game and there is not a single document produced by the wife to establish her case.
8.6 Some of the persons who have filed their affidavits can be named as follow:
No Names of the persons who have filed their affidavits. .
1 Desai Maganbhai Jivabhai 2 Desai Kanjibhai Bababhai 3 Desai Labhubhai Chaganbhai 4 Rabari Prabhatbhai Jaksibhai 5 Rabari Kanjibhai Maganbhai 6 Rabari Shaileshbhai Vashrambhai 7 Desai Ghemabhai Shankarbhai 8 Desai Dineshbhai Naagjibhai 9 Desai Govindbhai Shakkarbhai 10 Desai Mohanbhai Jethabhai 11 Desai Shaharbhai Lallubhai 12 Desai Gemarbhai Vastabhai 13 Desai Bhikhabhai Ratnabhai 14 Desai Kanjibhai Sankabhai 15 Desai Maheshbahi Mafabhai 16 Desai Maganbhai Cheharabhai 17 Desai Amratbhai Madhabhai 18 Desai Sanjaybhai Somabhai Page 9 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 The gist of all these affidavits is that the customary divorce took place between the spouses on 04.10.2020 in presence of the panchas. The meeting was arranged near Siddhpur Unjha Highway, Nr.Avkar Hotel Unjha Road in the open field at around 05:00p.m. on 04.10.2020. The custody of the child in presence of the panchas and others had been handed over to the respondent No.4, father of the child and he, in turn had given Rs.9.50 Lakh to the mother of the child for retaining custody.
8.7 The photographs produced of the child of its being with the father at different places and enjoying her days of innocence.
8.8 The neighbors, who have filed the affidavits have stated that the respondent No.4 frequently is taking the daughter out and also is bringing the toys, new cloths and other items. She is being looked after very well. The respondent No.4 is residing at Raydhanjar, she at no point of time is being harassed and after 04.10.2020, petitioner has not gone to the village to meet her daughter. It is a very small village and therefore, anyone would know about her visit if she would have visited. Likewise, Desai Page 10 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 Maheshbhai Mafabhai president of Siddhpur, opposite Dudh Sagar Dairy claims to have very cordial relations with the family of the respondent No.4. He has also reiterated the details which have been given by other neighbors. Petitioner as a mother, at no point of time, had met the daughter and the family looks after the daughter quite well. Other neighbors Desai Kanjibhai Shakabhai and Desai Maganbhai Cherabhai have also stated the very details in a stereo typed manner, which would not require further elaboration.
9. Affidavit-in-rejoinder filed by the petitioner- Bhavnaben laments that different affidavits filed by 25-30 persons are having the similar contentions. It is only with a view to create evidence against the lawful right of the petitioner that such attempts are made where there are either relatives or unknown persons of the respondent No.4 and therefore, their affidavits cannot be relied upon. 9.1 According to the petitioner, the writ of Habeas Corpus would be maintainable in relation to the custody of the minor child since retaining at the custody by the Page 11 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 respondent No.4 is unlawful and illegal. The custody of the minor child is to be examined on the touchstone of the principle of parens patriae. The Division Bench of this Court in case of Sejalben Arpitshah vs. State of Gujarat, reported in (2019) (3) GLR 2247 relying on the various decisions of the Apex Court has held that the mother should not be deprived of her right considering the tender age of the child and she being the girl child, the father and the grandparents may be taking good care of the child, but they cannot substitute the mother. 9.2 According to the petitioner, the respondent No.4 produced several photographs to demonstrate that he is taking good care of his daughter, but they do not depict the love and affection required by a child. 9.3 It is further the say of the petitioner that at the time of customary divorce, the respondent No.4 had agreed to handover the custody of a minor child and the petitioner being the mother also never agreed as she did not want to let go the custody of the child.
10. The maternal uncle Saharbhai Versibhai Rabari and Page 12 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 Rameshbhai Motibhai Rabari, who also were present at the time of customary divorce have sworn their affidavits stating on oath that the petitioner has never agreed to part with the minor child.
11. Rameshbhai Rabari who is the cousin brother of the petitioner-Bhavnaben has stated that he was personally present when the divorce took place. The amount of Rs.9.50 Lakh was a penalty amount as per their customs given to Bhavnaben at the time of divorce. He has also further stated that Kanjibhai Shankarbhai Desai and Maganbhai Cheharbhai Desai are relatives of respondent No.4, who themselves have decided the amount of penalty as per their customs, Bhavnaben had never agreed to handover the custody of minor child. The entire story is concocted that the custody of child was to be handed-over to the respondents.
12. Similarly, Saharbhai Versibhai Rabari the maternal uncle of the petitioner-Bhavnaben has along the very line filed the affidavit. He too was personally present at the time of customary divorce and according to him, the Page 13 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 custody of the child was never given.
13. As noted above, the reference made to the Member Secretary, GSLA was for mediation and On 28.01.2021, the report of the Mediator made it clear that the mediation had not been successful. We could also notice as reflected in our order dated 28.01.2021 that the girl was found attached to the father. We, therefore, permitted four different dates for meeting of mother with the child at the Court at Siddhpur. The learned Principal District Judge, Patan was also requested to communicate to the Principal Senior Civil Judge to provide the space to the petitioner and her daughter and to further facilitate the process of mediation. The receipt of report of every meeting of mother with the child was also directed.
14. We could notice on 28.01.2021 that the grievance on the part of the learned advocate appearing for the petitioner-mother that the mother was not permitted the exclusive meeting with the daughter and there was an attempt to make a show that the daughter is quite friendly with the father, which in fact was not the case. Page 14 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021
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15. We heard both the sides on the grievance of meeting at District Patan and could know that the atmosphere was not conducive and therefore, we directed the mediation to happen at City Civil and Sessions Court, Ahmedabad at the Mediation Centre and learned Principal District Judge was also requested to ensure the presence of one of the judges, on both the days i.e. on 25.02.2021 and 26.02.2021. We posted the matter after once the Court received the report through the learned Principal District Judge. The said report was received on 02.03.2021.
16. The report 02.03.2021 is received from Ms.Preet Kamal Tirath Ram, learned judge, Court No.27, City Civil and Sessions Court, Ahmedabad in whose presence the Court had directed the mother to meet the child. In wake of the complaints made by the learned advocate of the petitioner and the developments noticed through reports, she has specified that the meetings of the child corpus was conducted under her supervision. It was otherwise to be held at mediation centre, but the same had been conducted in her chamber as another habeas corpus petition was pending and the comfort of the child was Page 15 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 also taken care of. Initially, the child was not wanting to talk to her mother but she opened-up and started playing with her mother. Respondent No.4 was requested to be out of the chamber, however the child was not comfortable. Attempt was made for mediation and the respondent-father did not want to give the custody of the child and the petitioner is not willing to reunite. According to the respondent No.4, with the intervention of the respected members of the society, the marriage has been dissolved and Rs.9.50 Lakh had been given in lieu of custody of the child. He is very happy to continue to live with the child and the child is quite attached to him. He also was engaged after dissolution of the marriage;
however, according to him, he was ready to revoke the said engagement.
16.1 According to this report,on 26.02.2021, both of them came back along with the child and the child was very comfortable and happy to meet the petitioner mother. She spent quality time and when the child was asked whether she was ready to go with mother, she said yes. The Court also gave Page 16 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 proposal to the couple to reunite so that the relationship could be seemed for the safe and better future of child to which the respondent-husband agreed, but, the petitioner-mother refused to reunite and she insisted for the custody of child. 16.2 According to the learned judge, when she talked to the family members and the brother of the petitioner, it was realized that the amount of Rs.9.50 Lakh has been received, but the same was not for giving the custody of the child, however, the society/ community pays fine as punishment and the amount was given by way of a fine.
16.3 The learned judge has further observed that the custody of the child was given to the respondent No.4 with the consent of the family of the petitioner by the mediators of both the sides.
However, the petitioner herself was given the impression that child would come back to her after two days and she was not aware of giving the custody to the respondent-father.
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16.4 When she came to know of reality, she
filed a writ petition. She also is not aware of the amount of Rs.9.50 Lakh given by the respondent. It is also observed by the learned judge that the apparent look of the respondent of being extremely obedient, but, in reality this attitude was not found genuine by her and this was the impression she carried while interacting with the respondent No.4. According to her, he would need to take care of the girl child which he would not be capable to do himself, whereas the petitioner mother is living in a joint family and here being the girl child, the petitioner according to her, is a deserving parent. The parental side of the petitioner is ready to deposit Rs.9.50 Lakh in the name of the child and as per the social custom also, the petitioner does not agree with the decision of the respectable members of the community and if she insists to have the custody of the child, the amount needs to be returned to the respondent No.4.
17. We also had further alongside had directed both the sides to take instructions with regard to the amount of Page 18 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 Rs.9.50 Lakh averred to have been given by the respondent No.4 to the parents of the petitioner for handing-over the custody of the daughter. Since it was realized that the caste leaders had decided the customary divorce placing certain terms and conditions to both the sides without anything in writing, some persons had filed affidavits and according to the petitioner's side, they were the relatives of the other side. Therefore, the caste leaders who remained present when meeting of the parties materialized, this Court directed two senior most persons of the community to remain present through video conference from each side and this was to be conducted from the chamber of learned Principal District Judge, Patan. Accordingly, the meeting through video conference was conducted and the following order dated 05.03.2021 came to be passed:
"1. Pursuant to the last order passed by us the affidavit in rejoinder on behalf of the petitioner is produced today on record. As directed by us, two persons namely each from petitioner's side Saharbhai Versibhai Rabari and Rameshbhai Motibhai Rabari and from the respondents side Desai Kanjibhai Maganbhai and Desai Kanjibhai Sondhabhai are present. They submitted that Page 19 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 the amount of Rs. 9.5 Lakhs has been given in presence of the panchas and handed over the custody of the daughter to the father in wake of the proposal made by the father of the petitioner. This has been accepted in cash in presence of the father, brother of the petitioner and other panchas. Whereas, Saharbhai and Rameshbhai have been given this amount by way of penalty charges for the act committed on the part of Sureshbhai Babarbhai Rabari.
2.We have noticed that the panchas have acted without any consideration of the case as there is neither any constitution of the caste nor any rules nor any written code for the panchas to act as panchas. The number of panchas in each matter would also differ. After hearing the learned Advocates Ms. Acharya and Mr.Daudhivhora appearing in the instant case, it was submitted that 1520 persons on each side remained present. They submitted that during the selection of the panchas, it was seen that none of them had any legal background nor any understanding of how the law operates in any of the matters they deal with. They confirm that in Taluka : Siddhpur the community of Desai and Rabari do not have any knowledge of the written constitution or rules. Neither sides have any understanding of the provision of the Legal Services Authority Act, 1987. They never had heard any feature of the Lok Adalat or any compromise apart from the litigation steps. After hearing Ms. Acharya on the issue we would be pleased to highlight this aspect and prefer to give appropriate directions in this regard. Matter for that cause, be posted on 18.03.2021.Page 20 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021
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4.It is directed that the mother and the daughter can meet each other exclusively on 12.03.2021 between 12:00 P.M. to 4:00 P.M. at the City Civil Court, Ahmedabad in the premises of the State Legal Services Authority. Necessary arrangement shall be made by the Registrar, City Civil Court."
18. The report also has been prepared by the Police Sub Inspector, Mr.N.D.Parmar, Kakoshi Police Station. An application came to be moved being Application Inward No.1470 of 2020 by brother of the petitioner-Vishalbhai Lenbabhai Rabari, who sent this application on 18.12.2020 to Kakoshi Police Station. According to whom, his sister Bhavnaben has not remarried and she was staying with them at Visnagar. The respondent No.4 already got himself engaged and when this news was received by the petitioner, her brothers Vishal and Ankit (cousin) arrived at Methan on 09.12.2020. The respondent No.4 since was at Kutch, all the three had gone to his residence and made a request for daughter's custody and they have been refused by his family. According to these persons, as Sureshbhai was engaged elsewhere, they came to take the custody of the child, nothing has been reduced into writing at the time of divorce. It was also decided that the Page 21 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 daughter would stay with mother and sometime occasionally she would be taken to Methan. The police officer also took the statement of other side and according to them, the brother of the applicant-Vishal or petitioner herself and her cousin had not gone to the respondent's family. Ankit Saharbhai Desai had gone there on 18.12.2020, they were also offered tea and the daughter was not present and in a cordial atmosphere they had left.
The child had gone with her grandparents to Kutch where the father has been serving.
19. This Court extensively heard the learned advocates on both the sides, who along the line of the rival contentions argued this matter. There is no requirement for the court to reiterate detailed submissions made by both the sides. Suffice to note that to support the respective pleadings, the learned advocates, Ms.Archana Acharya for the petitioner and Mr.Mitesh Rangras with Mr.A.A.Daudivhora for respondent Nos.4 to 8 and learned Additional Public Prosecutor, Ms.Jirga Jhaveri for respondent-State argued fervently.
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20. Having thus heard learned advocates on both the sides and also noticing closely the material on the record, what emerges before this Court is the petitioner- Bhavnaben married respondent No.4-Sureshbhai Babarbhai Desai, both belonging to Rabari community on 10.05.2011. The daughter was born out of the said wedlock and is presently four years of age. She is born on 12.10.2016 at Visnagar.
20.1 Due to matrimonial disputes, the parents chose to end their marital ties and accordingly the customary divorce has taken place. It appears that under the law, the customary divorce is feasible on a stamp paper where the caste permits such divorce and everything is reduced into writing, the same is also stamped at the office of the Sub-Registrar. This is permissible in some of the castes which recognize the customary divorce. Here undoubtedly, the parties chose to take the route of customary divorce to end their marital tie on 04.10.2020, but instead of reducing the same into writing the caste leaders worked together at open field on 04.10.2020 near Page 23 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 Avkar Hotel Unjha Road,Siddhpur-Unjha Highway. It is surprising as to why 250 caste peoples gathered as emphasized by the respondent on that day for working out the divorce!!. It is quite strange and intriguing as to why so many people needed to be present!! certainly is not a happy occasion to celebrate nor an occasion where people gather to mourn the demise of any near ones or of a leader! If the caste leaders are to mediate, there is bound to be a written constitution in every caste and the leaders, in a limited numbers would sit together in presence of the spouses and close family members. The terms of divorce would be ordinarily reduced into writing and the same would be placed in black & white and everything is made clear on paper for the parties to refer the same in the future. Nothing of the sort is noticed. Both the sides agreed, however that the divorce took place on 04.10.2020. 20.2 It is although not in dispute that parties from both the sides had remained present and nothing has been reduced into writing and no terms and Page 24 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 conditions are brought on the record, which will govern the future course of action of the spouses.
When this Court had an occasion to meet some of the caste leaders pursuant to the order passed on 05.03.2021, it could be noticed clearly that during the selection of the panchas, there was no legal background nor even any basic understanding on the part of anyone as to how the law operates and what considerations need to be regarded in the matter of custody. The community of Desai and Rabari at Taluka Siddhpur had no knowledge of the requirement of any written constitution or of the rules. Neither side has any knowledge of the provision of the Legal Service Authorities Act, which permits the parties to compromise without litigating in an adversarial litigation at a pre-litigation stage in Permanent Lok Adalat under the Legal Service Authorities Act. They were clueless that it is feasible for the parties to arrive at the compromise, which will have the form of court's decree once such a compromise is finalized under the law. These leaders Page 25 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 had no knowledge of any Lok Adalat or the compromise at a pre-litigation stage. It is quite unfortunate that this act has come into being with laudable objectives and one of the ways expected is to propagate these very useful & vital aspects which are meant for the benefits of the common man and the spread of legal awareness through legal education is also made an integral part of the statutory provisions so that the common man is made aware of his rights and informed as well as the enlightened citizenry can better perform and make an enriching society where the rights of all concerns are better protected. Had there been a little awareness of such provisions made under the statutes,this would have saved enormous time, energy and resources, which are otherwise scarce and are expected to be utilized judiciously.
21. Some of the provisions which will cursorily require a reference are Section 20, 21 and 22 of the Legal Service Authorities Act, however the vital Chapter VI A under the heading of Pre-Litigation Conciliation And Settlement. Page 26 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021
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21.1 Section 22 B speaks of establishment of
Permanent Lok Adalat and Section 22 C speaks of Cognizance of cases by Permanent Lok Adalat, which require reproduction.
"Section 22B. (1) Notwithstanding anything contained in section 19, the Central Authority or, as the case may be, every State Authority shall,by notification, establish Permanent Lok Adalats at such places and for exercising such jurisdiction in respect of one or more public utility services and for such areas as may be specified in the notification.
(2) Every Permanent Lok Adalat established for an area notified under sub-section (1) shall consist of (a) a person who is, or has been, a district judge or additional district judge or has held judicial officer higher in rank than that of a district judge, shall be the Chairman of the Permanent Lok Adalat;
and (b) two other persons having adequate experience in public utility service to be nominated by the Central Government or, as the case may be, the Page 27 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 State Government on the recommendation of the Cnetral Authority or, as the case may be the State Authority, appointed by the Central Authority or, as the case may be, the State Authority, establishing such Permanent Lok Adalat and the other terms and conditions of the appointment of the Chairman and other persons referred to in clause (b) shall be such as may be prescribed by the Central Government.
Section 22C. (1) Any party to a dispute may, before the dispute is brought before any court, make an application to the Permanent Lok Adalat for the settlement of dispute:
Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law:
Provided also that the Central government, may, by notification, increase the limit of ten lakh rupees specified in the second proviso in consultation with the Central Authority.
(2) After an application is made under sub-
section (1) to the Permanent Lok Adalat, no Page 28 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 party to that application shall invoke jurisdiction of any court in the same dispute.
(3) Where an application is made to a Permanent Lok Adalat under sub-section (1), it-
(a) shall direct each party to the application to file before it a written statement, stating therein the facts and nature of dispute under the application points or issues in such dispute and grounds relied in support of, or in opposition to, such points or issues, as the case may be, and such party may supplement such statement with any document and other evidence which such party deems appropriate in proof of such facts and grounds and shall send a copy of such statement together with a copy of such document and other evidence, if any, to each of the parties to the application;
(b) may require any party to the application to file additional statement before it at any stage of the conciliation proceedings;
(c) shall communicate any document or statement received by it from any party to the application to the other party, to enable such other party to present reply thereto.
(4) When statement, additional statement and reply, if any, have been filed under sub-
section (3), to the satisfaction of the Page 29 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 Permanent Lok Adalat, it shall conduct conciliation proceedings between the parties to the application in such manner as it thinks appropriate taking into account the circumstances of the dispute.
(5) The Permanent Lok Adalat shall, during conduct of conciliation proceedings under sub-
section (4), assist the parties in their attempt to reach an amicable settlement of the dispute in an independent and impartial manner. (6) It shall be the duty of very party to the application to cooperate in good faith with the Permanent Lok Adalat in conciliation of the dispute relating to the application and to comply with the direction of the Permanent Lok Adalat to produce evidence and other related documents before it.
(7) When a Permanent Lok Adalat, in the
aforesaid conciliation proceedings, is of
opinion that there exist elements of
settlement in such proceedings which may be acceptable to the parties, it may formulate the terms of a possible settlement of the dispute and give to the parties concerned for their observations and in case the parties reach at an agreement on the settlement of the dispute, they shall sign the settlement agreement and the Permanent Lok Adalat shall pass an award in terms thereof and furnish a Page 30 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 copy of the same to each of the parties concerned.
(8) Where the parties fail to reach at an agreement under sub-section (7), the Permanent Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute."
21.2 Section 22D speaks of the Procedure of Permanent Lok Adalat and Section 22E says that the Award of Permanent Lok Adalat to be final. 21.3 Thus, these provisions have made it extremely easy and every party which choses to approach the Permanent Lok Adalat for their settlement, the Award of Permanent Lok Adalat made either on merit or in the terms of the settlement agreement shall be final and binding on all the parties and on persons claiming under them. If these provisions were resorted to, this could have not only made the things extremely clear for the parties, but this would have saved enormous energy and resources of the judicial system. At the end, certain directions in this regard may necessitate. Page 31 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021
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21.4 This brings this Court to the vital issue of
maintainability of the present petition & entitlement of the petitioner to get the custody of the children. Reliance is placed on the decision of the Sejalben Arpit Shah (supra), where the petitioner had prayed for writ of Habeas Corpus as according to her, minor daughter aged 14 months was in unlawful custody of the respondent-husband. There again, the matrimonial disputes were between the spouses and the petitioner mother sought custody of 14 months of daughter. This Court examined threadbare the law on the subject of writ of Habeas Corpus and held that the mother should not be deprived of her right especially considering the tender age and child being a girl child. It was her case that she was forced to leave the matrimonial home and to go to her father's residence. It was her grievance that respondent No.3- husband had taken away the daughter.
21.5 The Court extensively examined the law on the subject to hold thus:
"38. It is well settled that in an application seeking Page 32 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 a writ of habeas corpus for custody of minor child, the principal consideration for the court is to ascertain whether the custody of the child can be said to be lawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child should be left in the care and custody of someone else. It is equally well settled that in case of dispute between the mother and father regarding the custody of their child, the paramount consideration is welfare of the child and not the legal right of either of the parties. [See: Dr. (Mrs.) Veena Kapoor vs. Shri Varinder Kumar Kapoor (1981) 3 SCC 92 and Syed Saleemuddin vs. Dr. Rukhsana and others (2001) 5 SCC 247]. It is, therefore, to be examined what is in the best interest of the child Priyanshi and whether her welfare would be better looked after if she is given in the custody of the appellant, who is her father.
39. In the case of Nil Ratan Kundu, AIR 2009 SC (Supp) 732 (supra), the Apex Court opined as under:
In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or Page 33 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.
40. Thus, the Court should avoid a technical and legalistic view; it should adopt a pragmatic and realistic view in such a case. Moreover, the Court acts less as a Court of law, and more as a Court of equity. For it deals less with legal issues, and more with a human problem of the parents and the children. According to the Apex Court, "To repeat, issues relating to custody of minors and tender aged children have to be handled with love, affection, sentiments and by applying human touch to the problem." Ref. To Nil Ratan Kundu, AIR 2009 SC (Supp) 732 (supra).
41. The disturbing part of this litigation, irrespective of the fact whether the custody of Priyanshi with her father could be termed as unlawful or otherwise is that the husband projected his wife as mentally ill and not fit to take care of minor Priyanshi. As we are dealing with a matter in which the interest of 14 months old girl is involved, we did not wanted to take any chance and in such circumstances, very reluctantly thought fit to subject the writ applicant to undergo medical examination.
In fact it was very painful to ask a young lady to undergo tests of such nature. The writ applicant in Paragraph3.4 of her writ application has stated as Page 34 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 under:
3.4 Despite continued torture from the family of Respondent No.3, the petitioner continued to live at the matrimonial home only with a view to safeguard the future of Priyanshi. However, on 15.1.2019, the petitioner was driven out from the matrimonial home by Respondent No.3 after forcibly taking away the custody of Priyanshi. The petitioner states that Priyanshi was forcibly snatched from the hands of the petitioner and the petitioner was driven out from the house.
42. We take notice of the fact that the afore noted averments made in Paragraph3.4 of the writ application have not been directly or indirectly refuted by the respondent no.4. This prima facie is suggestive of the fact that on account of matrimonial disputes, the writapplicant had to leave her matrimonial home, but while leaving, she was not permitted to take alongwith her minor daughter Priyanshi.
43. As observed by the Supreme Court in Vivek Singh Vs. Ramani Singh : 2017 (3) SCC 231, in cases of this nature, where a child feels tormented because of the strained relations between her parents and ideally needs the company of both of them, it becomes, at times, a difficult choice for the court to decide as to whom the custody should be given. However, even in such of dilemma, the paramount consideration is the welfare of the child. However, at times the prevailing Page 35 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 circumstances are so puzzling that it becomes difficult to weigh the conflicting parameters and decide on which side the balance tilts.
44. The Hindu Minority and Guardianship Act, 1956 lays down the principles on which custody disputes are to be decided. Section7 of this Act empowers the Court to make order as to guardianship. Section17 enumerates the matters which need to be considered by the Court in appointing guardian and among others, enshrines the principle of welfare of the minor child. This is also stated very eloquently in Section13 which reads as under:
"13. Welfare of minor to be paramount consideration.
(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor."
45. The Supreme Court in the case of Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 stated in detail, the law relating to custody in England and America and pointed out that even in those jurisdictions, welfare of the minor child is the first and paramount consideration and in order to determine child custody, the jurisdiction exercised by the Court rests Page 36 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 on its own inherent equality powers where the Court acts as 'Parens Patriae'. The Court further observed that various statutes give legislative recognition to the aforesaid established principles. The Court explained the expression 'welfare', occurring in Section13 of the said Act in the following manner:
"51.The word "welfare" used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical wellbeing.Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases.
52. The trump card in the appellant's argument is that the child is living since long with the father. The argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He cannot be a beneficiary of his own wrongs. The High Court has referred to these aspects in detail in the impugned judgments."
46.We understand that the aforesaid principle is aimed at serving twin objectives. In the first instance, it is to ensure that the child grows and develops in the best environment. The best interest of the child Page 37 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 has been placed at the vanguard of family/custody disputes according the optimal growth and development of the child primacy over other considerations. The child is often left to grapple with the breakdown of an adult institution. While the parents aim to ensure that the child is least affected by the outcome, the inevitability of the uncertainty that follows regarding the child's growth lingers on till the new routine sinks in. The effect of separation of spouses, on children, psychologically, emotionally and even to some extent physically, spans from negligible to serious, which could be insignificant to noticeably critical. It could also have effects that are more immediate and transitory to long lasting thereby having a significantly negative repercussion in the advancement of the child. While these effects don't apply to every child of a separated or divorced couple, nor has any child experienced all these effects, the deleterious risks of maladjustment remains the objective of the parents to evade and the court's intent to circumvent. This right of the child is also based on individual dignity. [Vide Vivek Sing (Supra)].
47. Second justification behind the 'welfare' principle is the public interest that stand served with the optimal growth of the children. It is well recognised that children are the supreme asset of the nation. Rightful place of the child in the sizeable fabric has been recognised in many international covenants, which are adopted in this country as well. Page 38 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021
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Childcentric human rights jurisprudence that has been evolved over a period of time is founded on the principle that public good demands proper growth of the child, who are the future of the nation. [Vide Vivek Sing (Supra)].
48. The Supreme Court has observed in Bandhua Mukti Morcha v. Union of India & Ors., (1997) 10 SCC 549:
"4. The child of today cannot develop to be a responsible and productive member of tomorrow's society unless an environment which is conducive to his social and physical health is assured to him. Every nation, developed or developing, links its future with the status of the child. Childhood holds the potential and also sets the limit to the future development of the society. Children are the greatest gift to humanity. Mankind has the best hold of itself. The parents themselves live for them. They embody the joy of life in them and in the innocence relieving the fatigue and drudgery in their struggle of daily life. Parents regain peace and happiness in the company of the children. The children signify eternal optimism in the human being and always provide the potential for human development. If the children are better equipped with a broader human output, the society will feel happy with them. Neglecting the children means loss to the society as a whole. If children are deprived of their childhood socially, economically, physically and mentally the nation Page 39 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 gets deprived of the potential human resources for social progress, economic empowerment and peace and order, the social stability and good citizenry. The Founding Fathers of the Constitution, therefore, have emphasised the importance of the role of the child and the need of its best development."
49. Same sentiments were earlier expressed in Rosy Jacob v. Jacob A.Chakramakka, (1973) 1 SCC 840 in the following words:
"15. ...The children are not mere chattels : nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society..."
50. The role of the mother in the development of a child's personality can never be doubted. A child gets the best protection through the mother. It is a most natural thing for any child to grow up in the company of one's mother. The company of the mother is the most natural thing for a child. Neither the father nor any other person can give the same kind of love, affection, care and sympathies to a child as that of a mother. The company of a mother is more valuable to a growing up female child unless there are compelling and justifiable reasons, a child Page 40 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 should not be deprived of the company of the mother. The company of the mother is always in the welfare of the minor child.[Vide Vivek Sing (Supra)].
51. The respondent no.3 is a chartered accountant. It goes without saying that he has tremendous love and affection towards Priyanshi. Even in the course of personal interaction with him, he made himself very clear that he would not be in a position to live without his daughter Priyanshi. At that point of time, with folded hands, we requested him to see that some settlement takes place, even if he has to sacrifice something very dear to him. During our interaction with the writapplicant, we gathered an impression that she wants to live separately with her husband and Priyanshi. At the same time, the respondent no.3 is very firm that he would not leave his parents.
52. We are of the view that the mother should not be deprived of her right especially considering the tender age and child being a girl child. The grandparents may be taking very good care of Priyanshi, but at the same time, they cannot be a substitute for natural mother. In fact, there is no substitute for mother's love in this world. It appears that the grandparents are old. The respondent no.3 is a professional and must be keeping himself quite busy as a Chartered Accountant. Considering the totality of facts and circumstances, the welfare of the child lies with the mother. At this stage, we deem fit Page 41 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 to quote few observations of the Supreme Court in the case of Vivek Singh (Supra) as those are very apt so far as the case on hand is concerned. In Vivek Singh (Supra), the Supreme Court had to deal with almost an identical problem like the one on hand. The Supreme Court has observed as under:
This Court cannot turn a blind eye to the fact that there have been strong feelings of bitterness, betrayal, anger and distress between the appellant and the respondent, where each party feels that they are 'right' in many of their views on issues which led to separation. The intensity of negative feeling of the appellant towards the respondent would have obvious effect on the psyche of Saesha, who has remained in the company of her father, to the exclusion of her mother. The possibility of appellant's effort to get the child to give up her own positive perceptions of the other parent, I.e., the mother and change her to agree with the appellant's view point cannot be ruled out thereby diminishing the affection of Saesha towards her mother. Obviously, the appellant, during all this period, would not have said anything about the positive traits of the respondent. Even the matrimonial discord between the two parties would have been understood by Saesha, as perceived by the appellant. Psychologist term it as 'The Parental Alienation Syndrome'. It has at least two psychological destructive effects:
(I) First, it puts the child squarely in the middle of a contest of loyalty, a contest which cannot possibly be Page 42 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 won. The child is asked to choose who is the preferred parent. No matter whatever is the choice, the child is very likely to end up feeling painfully guilty and confused. This is because in the overwhelming majority of cases, what the child wants and needs is to continue a relationship with each parent, as independent as possible from their own conflicts.
(ii) Second, the child is required to make a shift in assessing reality. One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parent's distortions of reality.
The aforesaid discussion leads us to feel that continuous company of the mother with Saesha, for some time, is absolutely essential. It may also be underlying that the notion that a child's 4 The Parental Alienation Syndrome was originally described by Dr. Richard Gardner in "Recent Developments in Child Custody Litigation", The Academy Forum Vol. 29 No.2: The American Academy of Psychoanalysis, 1985). primary need is for the care and love of its mother, where she has been its primary care giving parent, is supported by a vast body of psychological literature. Empirical studies show that mother infant "bonding" begins at the child's birth and that infants as young as two months old frequently show signs of distress when Page 43 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 the mother is replaced by a substitute caregiver. An infant typically responds preferentially to the sound of its mother's voice by four weeks, actively demands her presence and protests her absence by eight months, and within the first year has formed a profound and enduring attachment to her. Psychological theory hypothesizes that the mother is the center of an infant's small world, his psychological homebase, and that she "must continue to be so for some years to come." Developmental psychologists believe that the quality and strength of this original bond largely determines the child's later capacity to fulfill her individual potential and to form attachments to other individuals and to the human community.
53. The "tender years rule" has found statutory recognition and the legislative policy underlying thereto is based not only on the social philosophy but also in realities and points in the direction that the custody of minor children who have not completed the age of 5 years should ordinarily be with the mother irrespective of the fact that the father is the natural guardian of such minors. When moved for a writ of Habeas Corpus and in exercising the general and inherent jurisdiction in a child custody case, the Court is required to bear this legislative prescription in mind while judging the issue as to the welfare of the child. In the present case, Priyanshi is just 14 months old. The parties are Hindus and the "tender Page 44 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 years rule", as statutorily recognized, is immediately attracted in their case and should not be ignored in judging her welfare.
54. In view of the aforesaid discussion, this petition succeeds and is hereby allowed. The respondent no.3 is directed to hand over the custody of the minor Priyanshi to her mother I.e. the writ applicant at the earliest. We would like to make it clear, however, that the order is of a temporary nature and that it is open to review according to the circumstances that may arise in future and that in such circumstances, the parties will be at liberty to apply to the court of competent jurisdiction for an appropriate relief. We are also of the view that the best interests of the minor children require that they should not be altogether deprived of the paternal affection and company and, therefore, it shall be open for the respondent no.3 to visit the parental home of the writ applicant to see and meet Priyanshi at any time. If the respondent no.3 wants to meet Priyanshi, then he shall not be restrained by the writ applicant or any of her family members."
22. This Court also in case of DIVYAKUMARI KEVALKUMAR BHATT Versus STATE OF GUJARAT had handed over the custody of the child who has aged 07 months to mother. Some of the findings and observations of the Court are necessary to be reproduced. Page 45 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021
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"7.We could notice the corpus- child(Avyansh) with the grandparents in healthy condition. We also could notice that petitioner mother joined from the Lunavada Court through Video Conferencing with her paternal grandfather. Extensively both the learned advocates are heard and the litigating parties are also availed an opportunity on the very issue of custody of the child to present their rival contentions. Without entering into allegations of either sides, it is quite apparent that child continued to be with the respondent No.3 - husband who resisted handing over of the custody on the ground of he being a premature baby and again, due to pandemic because of Covid-19 viruses, the respondents are not desirous of sending the child to mother who is at Lunavada, ostensibly because of their concern of the child in the event of any health issue. At the same time, we could notice that mother is thoroughly agitated and fervently urges that medical facilities are also available at Lunavada and in surrounding area.
It is alleged that she left home on her own, leaving the child behind, according to respondent No.3 whereas,as per the say of the petitioner herself, she was driven out when the child was only five months of age. And, almost three months have passed she is running from pillar to post to get the custody of child who is only 7 months old. Noticing extremely young age of child who simply could not be kept away from his mother, we deem it necessary to exercise writ jurisdiction to accede to the request of the Petitioner Page 46 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 without at this stage granting the request of learned advocate Ms.Pandya to file the affidavit in reply formally as this surely is a nature of litigation where parties can be permitted luxury of long drawn pleadings and litigation only once the custody of the child is handed over to the mother. Let this happen at the earliest. It is a birth right of the child to be embraced in the warmth and protection of motherhood. His foundation of health and key nutritive diet is mother's milk. He cannot be deprived of these valuable requirements. For the better and the fullest health, growth and development of the child, ordinarily mother's custody is a must. The child has no voice of his nor means nor capability to knock the doors of justice for establishing his right of welfare. It is an axiomatic truth that both the parents, father and mother are required to look after the welfare of the minor and are treated as natural guardians and yet, rigid insistence of statutory interpretation would not be welcomed for the welfare of such a young child. It is trite law that the custody of child at least till the age of five needs to be with mother.
In re Mc Grath(1893, 1 Ch.143) Lindsey, L.J. Observed, "The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word 'welfare' must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be Page 47 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 disregarded."
8. Considering the fact that the petitioner - mother is residing with the grandparents and also noticing the concern of Respondent No.3 for the child, let him carry the child to the Petitioner mother and he can also ensure generating a conducive atmosphere, keeping aside all other contentious issues which make their relationship sore. Bearing in mind the disputes between the spouses, we are of the opinion that this matter requires presence of some authority which can monitor process of smooth handing over and, therefore, it is directed that the child shall be handed over to the petitioner - mother, at the earliest, at the District Court, Lunawada in presence of Learned Principal District Judge. Let the same be done on or before 06.11.2020. "
23. Remembering Khalil Gibran 'on children' who reminds the parents "your children are not your children. They are the sons and daughters of life's longing for itself. They come through you but not from you and though they are with you yet they belong not to you...."
23.1 Bearing in mind his words that "their souls dwell in the house of tomorrow" and the ration laid down as also the fact that it is the husband and the family of the husband whose custody is sought to be challenged by the petitioner, this issue needs redressal.As held by the Courts even while taking note of the special statute while speaking of the rights of the parents and guardian, the Court is always obligated to exercise its parens patriae jurisdiction and shall need to give necessary weightage to Page 48 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 the child's comfort, the contentment, intellectual, moral, ethical and physical development and all other surrounding circumstances. The best interest of the child is the welfare of the child which alone needs to govern the court's decision.
24. So far as the Hindu Minority & Guardianship Act is concerned, the tender years' rule requires that the custody of the children of tender age must be with the mother and mother's protection for children is indispensable. Section 6 of the said Act speaks of natural guardian for a girl child of age of five years to be her mother ordinarily and section 13 of the said Act provides that in the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. It thus speaks of paramount consideration of the child while exercising powers to declare guardian. The Apex Court in the case of Smt. Surindar Kaur Sandhu vs Harbax Singh Sandhu & Anr, reported in 1984 (3) SCC 698 has held that provision of Section 6 cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. Page 49 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021
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25. In the matter on hand, the requirement for this Court to entertain this petition also is in exceptional circumstances when the society is in the grip of the pandemic due to COVID- 19 virus and Family Courts were not taking up custody matters and were dealing in a limited manner with miscellaneous matters. Again, the maintainability of the petition under Article 226 of the Constitution in the custody matters is well discussed & established in the above referred matters and deserves no independent findings and thus, when a young child is deprived of the warmth of the natural guardian mother, no objection in this respect deserve any entertainment.
26. Again, in the instant case, as could be noticed, the dispute is with regard to giving of the custody of the child. There is no dispute with regard to divorce between the parties, taken customarily, however, the child's custody is a serious debate, which has no written proof at all. There are rival contentions on both the sides and admittedly, the Siddhpur Rabari Community also has no written constitution for it to mediate and as mentioned herein above in detail, none of the leaders had any knowledge as to how the law operates when the court interacted with them through video conferencing. In such circumstances, Page 50 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 this Court is inclined to handover the custody to the mother from the overall consideration of age, family circumstances, job of the father, at Kutchh away from his family, his engagement status and his marriage in a near future coupled with complete absence of any writing with regard to the custody of his child and rival stands of community leaders and more particularly, the report of learned judge, City Civil and Sessions Court, Ahmedabad who has made very clear that the child was very comfortable with the mother and she longed for her. The respondent No.4-father of the child herein though has shown his willingness to reunite with the petitioner, apart from her own denial expressing inability to live together as spouses due to past experiences, he also has engaged himself and as stated in a near future, is to get married to his fiancée. The divorce has not taken much time and he chose to engage himself elsewhere, although he is entitled and has expressed that for looking after the custody of the child, it would be necessary for him to get married, the Court may not get impressed with such reason . The fact remains that the mother has pleaded all along that she Page 51 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 at no point of time has given the custody of the child . She never questioned the divorce and his getting married elsewhere for starting his life afresh, whose engagement is also an additional reason that when the mother is so keen and is claiming for the daughter's custody, corpus cannot be thrust upon the wife to be, of the respondent No.4, when the natural mother and guardian is longing to get her custody. There are no disabling grounds legally existing for denying the custody of girl child to the mother.
What has weighed with the court not only from legalistic and technical considerations but also from pragmatic and realistic aspects that handing over of the custody to the Petitioner mother would best serve the interest of the child. There could be no substitute of mother's unbound care and unconditional love for the child much less the paternal grand parents.
27. So far as the amount of Rs.9.50 Lakh is concerned, that appears to be the matter of concern for one and all, which according to the family of the respondent No.4 is the sum decided for handing over the child's custody, which is a hurdle. Either it could be for the permanent alimony of the wife or if the child's custody handed over to the petitioner-mother, the same could be towards the child's maintenance. For retaining the custody of the child Page 52 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 that could not have been the amount of Rs.9.50 Lakh given by the father. One set of affidavits state that while imposing fine for wrongdoing, husband has paid this. Without entering into the aspect of labelling the head for labelling the head for this amount, it is to be directed to be fixed deposited for the welfare of the child, which shall be deposited by the parents of the petitioner within 30 days of the date of this order for which they have agreed too and the same shall be fixed deposited in the joint name of the corpus and mother for the period of 7 years and the amount shall be utilized for her higher education. If at all anytime issue of maintenance arises, the court would regard this sum earmarked for the higher studies of the corpus.
28. Resultantly, this petition is allowed. Custody of the corpus shall be with the petitioner mother and the same is to be handed over to the petitioner mother on 30.06.2021 at around 11:00 a.m. at City Civil & Sessions Court, Ahmedabad in presence of learned Principal Judge, City Civil and Sessions Court, Ahmedabad.
28.1. Amount of Rs.9.50 lakh (Rupees Nine lakhs Page 53 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 and fifty thousand only) shall be deposited by the father of the petitioner before this Court within a period of two weeks which shall be fixed deposited for the period of seven years in the joint name of the petitioner and corpus. Without the permission of the Court, during this period, the amount shall not be withdrawn. The said amount shall be used for the educational purpose of the corpus.
28.2 Let the father have visitation right, if he so chooses, twice in the month on a Sunday in the morning between 10:00a.m. to 12:00p.m. This can be further worked out in details by the parties and in the event of any hitch, it shall be sorted out by the Member Secretary, the Gujarat State Legal Service Authority.
29. A word of caution to the community leaders who rather than taking upon themselves this task in future, without any legal background, should approach the Taluka Legal Services Authority or the District Legal Services Authority under the Legal Services Authorities Act, 1987 Page 54 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED:
25/06/2021 where any compromise in Lok Adalat and/or at pre -
litigation stage shall be worked out, culminating into the decree of the Court. Not only the right guidance would flow from the Legal Services Authority, but that would also have a legal and binding effect for any such compromise to govern the rights of the parties. The Member Secretary, GSLSA may ensure spreading of legal awareness in this direction for better handling of the situation by the community leaders. The petition is disposed of accordingly.
(SONIA GOKANI, J) (GITA GOPI,J)
30. Today in the open Court when the matter is pronounced, learned advocate, Mr.Rangrez appearing for the respondent No.4 has made a request for the stay of this order to enable the respondent No.4 to approach the Apex Court to question this judgment and order.
30.1 This has been strongly objected to by the Page 55 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021 R/SCR.A/9007/2020 JUDGMENT DATED: 25/06/2021
learned advocate, Ms.Archana Acharya appearing for the petitioner.
30.2 Considering the age of the child and for the reasons which have satisfied us to handover the custody to the petitioner mother, we do not accede to the request of Respondent no.4.
31. The child shall be brought by the family/ Respondent no.4 at Siddhpur Police Station who along with the lady officer, shall be brought to the City Civil and Sessions Court, Ahmedabad. Child shall be accompanied by the respondent father, if he so wishes, who shall hand over the corpus to the applicant-mother in presence of learned Principal Judge, City Civil and Sessions Court, Ahmedabad. If the petitioner mother requires any aid of police, the learned Principal Judge shall make necessary arrangement.
32. Criminal Misc. Application No.2 of 2021 stands disposed of in view of the judgment rendered in the case of Special Criminal Application No.9007 of 2000.
(SONIA GOKANI, J) (GITA GOPI,J) M.M.MIRZA Page 56 of 56 Downloaded on : Fri Aug 06 15:29:53 IST 2021