SAYEEM SHARIFUDDIN SHAIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition is filed issuing writ of habeas corpus praying custody of child aged about 7 years, who is in custody of mother i.e. wife of the present petitioner. As claimed in the petition, there was an agreement entered into between the parties i.e. husband and wife in respect of divorce and entrusting custody of 'Anayabanu' aged 5 years to the petitioner - husband dtd. 27/9/2021, though no date is mentioned in the said agreement, it has been reflected from the stamp of the notary that it has been executed on 27/9/2021. However, the petitioner - husband has claimed in the petition at paragraph 6 "Meanwhile, brother of the petitioner received phone call from family of respondent no.3 i.e. wife that 'Nani' of minor 'Anaya' is sick and hence she wants to see 'Anaya', and therefore, as per the condition of settlement, humanity and upon the say of the community leaders, the petitioner went on 3/10/2021 at about 9:00 p.m. with daughter 'Anaya' and at that time, brothers of the respondent no.3 told him to leave 'Anaya' thereat and they will drop her within 1 or 2 days. The petitioner relied upon the promise and left his daughter 'Anaya' at parental home of respondent no.3. Thereafter 'Anaya' was not returned back as per promise and the petitioner came to know that in fact 'Nani' was not sick but it was an excuse to call 'Anaya' and keep with her by the respondent ex-wife and her brothers with conspiracy with each other."

(2.) However, the said claim of the petitioner, on perusal of the application filed by the wife under Sec. 125 of the Code of Criminal Procedure, 1973 for maintenance of daughter 'Anaya', it is reflected that the petitioner had already contracted second marriage with one Yasmin Mansuri, who is District Woman Coordinator and serving with the Government. As asserted in the said application for maintenance after the alleged agreement of divorce and custody, within few days, the petitioner himself placed daughter 'Anaya' with the respondent - wife. Therefore, there appears disputed questions of facts, that too, in respect of custody of child and custody by mother of the child cannot be said to be illegal. The husband has not stopped thereat. However, he entered into another agreement with the wife in that very maintenance application and vide Exh.7 he agreed to pay maintenance at the rate of Rs.1500.00 per month from the date of application till April 2023 with his own consent and he further agreed that respondent no.3 wife will permit the petitioner - husband to meet daughter 'Anaya' on every Sunday of the month. Therefore, not only custody of child 'Ananya' with the mother is not illegal even the petitioner is permitted who has sought for even visitation rights, even without intervention of the Court. It is very clear that this petition praying for writ of habeas corpus alleging that under the pretext of grandmother being sick, custody of child obtained is absolutely falsehood, and therefore, this petition is without any substance, and therefore, it is hereby rejected.

(3.) This Court would have imposed heavy cost on the petitioner to invoke this jurisdiction, that too, after he agreed for paying maintenance to the daughter till April, 2023 with a view to get rid of that maintenance order, however, it appears that, he attempted to get the custody of child so as not to pay maintenance to the daughter in future for a further period. However, we refrain ourselves from any cost being imposed upon the petitioner.