GUNJAN HARISH BAKSHI Vs. JOSHAYET KAPUR

JUDGEMENT

(1.) The Petitioner invokes the jurisdiction of this Court under Article 227 of the Constitution of India taking exception to the Order dtd. 5/4/2023 passed by learned Civil Judge, Senior Division 'B' Court, Mapusa, below Exhibit D-15 in Civil Misc. Application No. 82/2021/A/B dismissing the application preferred by the Petitioner.

(2.) The Respondent moved a Petition purportedly under Article 1458 of the Portuguese Civil Code 1867 before the Court of Civil Judge, Senior Division at Mapusa on 14/10/2021 for sole permanent custody of the child Evyavan Ekam Kapur or in the alternative joint custody with Defendant, along with several other reliefs. It was contended that the Respondent is Hindu by religion. He was originally resident of Shimla, Himachal Pradesh. The Respondent and the Petitioner were in relationship which started in the beginning of March 2017. Child was born on 3/9/2018 out of the relationship. They did not perform marriage. There was discord between the parties. The Respondent and Petitioner being domiciled in Goa and the child being born and permanently domiciled in Goa since his birth, is governed by the Portuguese Civil Code, 1867 applicable in Goa. In the matter of procedure, the proceedings are governed by the Code of Civil Procedure, 1908 read with Goa Civil Courts Act, 1965.

(3.) The Petitioner preferred an application dtd. 19/10/2023. at Exhibit D-15 of the record, in Civil Misc. Application No. 82/2021 before the Civil Court for dismissal of the custody Petition preferred by the Respondent on the ground that Article 1458 of the Portuguese Civil Code does not deal with the custody of minor child. The provisions of Portuguese law is not applicable to the Respondent. The Respondent is not domiciled in Goa. Mere residence of Respondent in the State of Goa would not amount to domicile in Goa, thereby entitling him to enforce his rights under the Portuguese Civil Code or any other Portuguese law prevailing in the State of Goa. The son of the Petitioner and Respondent is born outside the wedlock.