ROMAZIE MPHAKA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition is filed by the petitioner, who is citizen of Malawi, East Africa praying for a Writ of Habeas Corpus alleging that respondent No.5-Ahmadhusen Yakub Patel with whom she was in Live-in-Relationship and out of that relationship respondent No.4-Raiyen Ahmadhusen Patel born who is aged, as on date 02 years and 09 months, while respondent No.5 was staying at Malawi.

(2.) It is averred in the petition that respondent No.5 has abducted son of the petitioner and kept in illegal detention in India and therefore, this petition is filed.

(3.) Mr.Jucky Lucky Chan learned advocate for the petitioner has submitted that, in a Writ of Habeas Corpus for a custody of a child, welfare of the child is the paramount consideration for the Court. He has submitted that since the child is less than 03 years even as on date, custody of the child should be handed over to the petitioner-mother. He has further submitted that child of a tender age would be better taken care of by the mother rather than the father. He has further submitted that continued custody of the son of the petitioner with the respondent No.5 is illegal as subsequent to the respondent No.5 migrated to India along with the child, the Competent Court in Malawi directed him to return the child Raiyen Patel (01 year 04 months old) to the applicant i.e. petitioner. Therefore, he has submitted that this petition praying for Writ of Habeas Corpus for production and handing over the custody of the child aged about 02 years and 09 months, as on date, be entrusted to the petitioner. For the said purpose, he has relied on the decision of the Apex Court in the case of V.Ravi Chandran (Dr.) (2) vs. Union of India and Others, reported in (2010)1 SCC 174 to submit that though she is citizen of other country, this petition praying for Writ of Habeas Corpus for the illegal detention of her son is maintainable before this Court and as ordered in that decision, despite the petitioner and respondent therein were foreign national, Writ of Habeas Corpus for the custody of a child was entertained, though in that case respondent No.6 was directed to act as per consent order dtd. 18/6/2007 passed by the Family Court of State of New York in between the parties, mother was directed to take the child of her own to the United States of America within 15 days of the order passed by the Hon'ble Supreme Court in that case. Though, further directions were also issued therein, it is submitted that considering the welfare of child, custody may be ordered to be returned to her and directing the respondent No.5 to appear before the Court at Malawi and resolve the dispute in accordance with law.