NADIMBHAI IBARAHIMBHAI VAGHADIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE question involved in this Revision Application is about the custody of a minor son, now aged 23 months, and the question arises in the context of proceedings under section 97 of the Code of Criminal Procedure, 1973, (hereinafter referred to as 'the Code'). Respondent No.2 -wife staying at Upleta since separation from the applicant­husband, filed an application under the aforementioned provisions asking for custody of son Ayan from the applicant. The father and the minor son have been at Bengaluru.

(2.) WITH the above brief preface, the facts in the background may be noted, to be useful in better comprehending the factual facets and in properly addressing the legal aspects involved. The marriage of the spouses was solemnized on

(3.) LEARNED advocate for the applicant-husband Mr. Harshit Tolia holding brief for learned advocate Mr. P.B. Khanderia submitted that the learned Sessions Judge has failed to appreciate the facts of the case correctly, and has further overlooked the scope of powers under section 97 of the Code. He in his submissions elaborated the circumstances when the wife left the husband's house, and highlighted on that basis, that it was a voluntary conduct on the part of the wife that she left the minor son with the husband-father virtually deserting him. At that time, she was pregnant. A writing was executed by her father owning all the responsibilities, and did not claim custody of Ayan, it was submitted. It was further submitted that she got her pregnancy aborted afterwards, therefore, her own conduct was not well-intentioned from the beginning.