SURABHAI RAVIKUMAR MINAWALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Miss Harsha Devani, Ld. APP waives service of rule on behalf of respondents nos. 1 and 3 and Mr. SI Nanavati, learned senior advocate waives service of rule on behalf of respondent no. 2.

(2.) This petition is filed under the provisions of Article 226 of the Constitution of India praying this Court for issuance writ of habeas corpus. Petitioner is the mother of a child named Kiran (in the affidavit-in-reply stated as 'Karan'), aged about 9 months. It is her say that she has married to respondent no. 2 on 28th December, 2002 and during their wedlock child Kiran was born on 12th November, 2003. It is averred by the petitioner that after the child was born within short time she was driven out of the house by respondent no. 2 and his family members. Thereafter she made efforts to get the custody of the child but in vain. After all efforts having failed, now she has been constrained to approach this Court as a last resort. It is further averred in the petition that since the child is aged about 9 months, she is natural guardian of the child. She has for that purpose placed reliance on the provisions of section 6 of the Hindu Minority and Guardianship Act, 1956 [hereinafter referred to as "the Act"]. In the end she has prayed that appropriate writ of habeas corpus be issued against respondent no. 2 to produce the minor child Kiran before this Court and direct him to hand-over the custody of the child to her.

(3.) The petition has been resisted by the otherside by filing affidavit-in-reply wherein mainly it is stated that the present petition is not maintainable since alternative efficacious remedy is available to the petitioner. It is further averred that there is no need to issue writ of habeas corpus since the child is not in illegal custody of the father and the welfare of the child would be maintained in the best possible manner, if the child remained with respondent no. 2 and his family. It is also averred that it is the petitioner who has left the family with her father and brother and she is not prepared to come back to family of respondent no. 2. It is, therefore, prayed that the petition be dismissed.