CHETNABEN Vs. NATWARLAL FOOLSHANKER JOSHI

JUDGEMENT

(1.) Heard the learned advocates. Leave to delete the respondent no. 2. The present petition arises from the Order dated 29th September, 2003 made by the learned Joint District Judge, Fast Track Court, Bharuch in a matter arising under the Guardians & Wards Act, 1890.

(2.) The subject matter of dispute is custody of the minor child, Hemani [now around six years of age]. The minor Hemani was born to the petitioner herein out of the wedlock with her husband Kirankumar, the son of the respondent herein. Unfortunately, in the year 2002, the said Kirankumar died of liver ailment. Thereafter, the petitioner has, with the intervention of the respondent. remarried to her present husband one Mukundchandra Balkrishna Bhatt. The said Mukundchandra Bhatt has a 10 year old son from his previous marriage. Since her remarriage, the petitioner and her minor daughter Hemani were residing with the said Mukundchandra Bhatt. However, the petitioner and the minor Hemani had visited the respondent on the occasion of the marriage of his younger son one Rohitkumar. After the marriage of the said Rohitkumar, minor Hemani stayed over with her grandparents for a few days. The said grandparents, however, refused to hand over custody of the minor Hemani to the present petitioner. The petitioner had to move the learned Judicial Magistrate for search of the minor Hemani. The respondent, therefore, moved Guardian & Ward Application No. 12 of 2003 for custody of minor Hemani under the Guardians & Wards Act, 1890. Pending the said application, the respondent moved application Exh.5 for retaining custody of minor Hemani during the pendency of the said application viz. Guardian & Ward Application No. 12 of 2003. The said application has been allowed by the impugned order dated 29th September, 2003. Feeling aggrieved, the petitioner has preferred the present petition.

(3.) By the aforesaid Application No. 12 of 2003, the respondent has claimed custody of minor Hemani on the ground that she is the only child of their deceased son Kirankumar and that they are financially better off than the petitioner and her present husband-Mukundchandra Bhatt. It is also stated that minor Hemani is ill-treated by her step father-Mukundchandra Bhatt; that the minor Hemani is not ready and willing to reside with her mother, the present petitioner and the said Mukundchandra.