HASMITABEN BHAVESHBHAI PRAJAPATI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal arises from a judgment and order dated 29.3.2011 passed by the learned Single Judge in SCA No. 4044 of 2011, whereby learned Single Judge refused to grant relief to the appellant herein as prayed for in the main petition and disposed of the petition by making certain observations and clarifications.

(2.) THE facts relevant for the purpose of deciding this appeal can be summarized as under:-

(3.) IT is undisputed that appellant is a legally wedded wife of respondent No.3. IT is also not in dispute that out of the wedlock, son Rishi was born in the year 2001. All of them were residing together happily in one house, but due to some matrimonial disputes, appellant thought fit to leave matrimonial home and is now residing at her parental home along with son Rishi. Taking into consideration the fact that the dispute is between husband and wife and also taking into consideration the interest of the child i.e. minor Rishi, we did make some efforts to see that the dispute is amicably settled, but for a very obstinate stand and attitude adopted by the appellant, the dispute could not be resolved. However, we do not find any error much less an error of law said to have been committed by the learned Single Judge in refusing to grant relief in favour of the appellant as prayed for. Respondent No.3, as a father, has an equal right over his son minor Rishi. There has been no legal separation as on today and the marriage is still subsisting. In this view of the matter, the mother i.e. appellant alone cannot have any say in the matter of minor Rishi. If the father has an objection in getting minor Rishi admitted in another school and if he has sent a notice in this regard to the school authorities and if the school authorities have refused to issue School Leaving Certificate taking into consideration the objection of respondent No.3 father, then we cannot find any fault with respondent No.4. No mandamus can be issued to respondent No.4 as prayed for in the petition.