ESHITA Vs. HIREN PRABHUDASBHAI BRAHMBHATT

JUDGEMENT

(1.) Rule. Mr. Soeb R. Bhoharia, learned Advocate, waives service of notice of Rule on behalf of the respondent. On the facts and in the circumstances of the case, and with the consent of the learned Counsel for the respective parties, the petition is being heard and finally decided today.

(2.) This petition has been filed under Arts. 226 and 227 of the Constitution of India with a prayer to quash and set aside order dated 27-7-2009, passed by the learned Principal Judge, Family Court No. 1, Ahmedabad, below application Exh. 5, in Miscellaneous Civil Application No. 35 of 2009, whereby, the said application filed by the petitioner-wife, inter alia for custody of her minor daughter Oshiya, has been rejected.

(3.) The brief facts of the case, relevant for the decision of the petition are as follows : The marriage of the petitioner and the respondent took place on 18-10-2001. It was a second marriage for the respondent who has a son by his first marriage, who is with the first wife but the first marriage for the petitioner who was aged 21 years, at the time. The petitioner is now aged about 28 years and the respondent is aged about 44 years. The petitioner married the respondent against the wishes of her family. It is the case of the petitioner that at the time of the marriage, she was unaware of the criminal background of the respondent, who is involved in about 29 criminal cases. The baby girl Oshiya was born at the home of the petitioner's parents on 4-4-2003, and is about six and half years of age, at present. According to the petitioner, on 21-10-2003, soon after the birth of Oshiya, the respondent was taken into judicial custody, in a criminal matter. The respondent remained in judicial custody for five years and was released on bail, on 24-4-2008. All this time, the petitioner looked after the minor girl and when she became old enough to attend school, the petitioner admitted Oshiya to Euro Kids Kindergarten School. According to the petitioner, it is she who has taken care of the upbringing, education and development of the child until her custody was handed over to the respondent. At present, the child is studying in Standard-I of Zydus School of Excellence at Ahmedabad. After the release of the respondent from jail, the parties mutually agreed to separate and executed a Deed of Divorce on 4-10-2008, which was got registered. No legal proceedings were resorted to by the parties, for divorce. As per the Deed of Divorce executed between the parties, the custody of the minor girl was agreed to be handed over to the respondent-father. It was agreed between the parties that in case the father remarries or has a live-in relationship, the custody of Oshiya will be handed over to the mother, and vice-versa. Accordingly, Oshiya came to reside with her father at Ahmedabad. The petitioner earlier resided at Jamnagar, and presently, she lives at Vadodara with her father. On 3-1-2009, soon after the Deed of Divorce was drawn up, the petitioner preferred Miscellaneous Criminal Application No. 22 of 2009 under the provisions of Sec. 97 of the Code of Criminal Procedure, for custody of her minor daughter as according to the petitioner, the respondent used to indulge in undesirable activities and brought strange women to the house, which activities would have an adverse impact upon the minor girl. On 17-2-2009, the Court rejected the said application on the ground that an alternative remedy was available. The petitioner, thereafter, preferred a habeas corpus petition in the High Court, being Special Criminal Application No. 324 of 2009, for the custody of the minor child. The petition was withdrawn on 25-2-2009 with liberty to avail of the alternative remedy. In this background, the petitioner preferred a substantive application, being Miscellaneous Civil Application No. 35 of 2009, before the Family Court for custody, which is pending. An application at Exhibit 5 for interim custody was also preferred, that has been rejected by the impugned order, giving rise to the filing of the petition.