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2017 DIGILAW 280 (GUJ)

Sujeeta Shrinarayan Mali v. State of Gujarat & 2

2017-02-03

AKIL ABDUL HAMID KURESHI, BIREN VAISHNAV

body2017
ORDER : AKIL KURESHI, J. This Habeas Corpus petition is filed by mother of two minor children - Bhumi and Aryan aged 13 years and 9 years respectively. The petitioner, mother of the children and respondent no. 2, father of the children have separated since long and we are informed that they have also obtained divorce. Since then the children were living with the mother. However, as per the petition, the respondent no. 2 forcibly took away the children on 26.12.2016 Persuaded by such assertions, we had issued notice and directed the respondent to produce the children before the court. 2. Today, when the matter was called out, counsel for the petitioner scaled down the petitioner's expectations and requested that she may be allowed to visit the children at least once in a fortnight. We are somewhat intrigued by this sudden lowering down the expectations of the petitioner. 3. We first called the children in the chamber. We found that the children are bright matured for their age and confident. Both of them stated that they themselves from the school had directly gone to the father's place because they were not happy staying with the mother who had already remarried. We would not record further information revealed by the children to us. Suffice it to record that we found that the children were very clear that they wanted to live with the father and they were happy at his house. They also pointed out that the father had not remarried and was living with his parents. The grandmother would mostly look after the house including their requirements at home. 4. We then had called the petitioner. She confirmed that after she found the children missing when she came home, she had inquired and found that they had gone to her ex-husband's place on their own. This is starkly in contrast to what is stated in the petition where, as noted the petitioner's assertion was that the husband had forcibly taken away the children on 26.12.2016 In the petition, she had also referred to statements recorded by the police pursuant to her inquiries with the police authorities about the missing children. If so, we would have expected the counsel for the petitioner to have verified the statements so recorded by the police before activating the Habeas Corpus writ jurisdiction of the High Court. 5. We then called respondent no. If so, we would have expected the counsel for the petitioner to have verified the statements so recorded by the police before activating the Habeas Corpus writ jurisdiction of the High Court. 5. We then called respondent no. 2, the father of the children and he conveyed that he was all too happy to look after the children, he was not at all satisfied about the upbringing of the children by the mother with her present husband. He said that he had not remarried and in order to look after the children probably would not think about it also. 6. Be that as it may. When we have find that the children are comfortable and happy at the father's place we would not disturb the present situation. The children are fairly matured, they are not infants who are unable to understand what is good or bad for them. The girl in particular, aged about 13 years, was clear and confident. Her brother, though not of the same age and not therefore as matured, nevertheless was sharp. He was also clear that he did not want to go back to the mother and was perfectly happy staying with the father. 7. Despite these observations, we would not wish that the mother's connection with the children is completely severed. Even in the interest of the children, it would be desirable that as far as practicable, they maintain a contact with their mother. The love, affection and warmth that a mother can give, particularly to growing children, cannot be substituted by anyone else. We, therefore, accept the mother's request for limited visitation rights. Even the respondent no. 2 had shown willingness to permit mother's visit to the children, as long as she came alone and in particular without her husband. 8. Under the circumstances, this writ of Habeas Corpus is disposed of with following directions: (i) The children will continue to live with respondent no. 2, their father. (ii) The petitioner mother would be allowed to meet the children at the father's house once every two weeks on the weekend for one hour. The father would ensure that the mother and children would have privacy during such visits. (iii) Once this arrangement works out satisfactorily, on and from 01.05.2017, the mother could visit her children once every week. (ii) The petitioner mother would be allowed to meet the children at the father's house once every two weeks on the weekend for one hour. The father would ensure that the mother and children would have privacy during such visits. (iii) Once this arrangement works out satisfactorily, on and from 01.05.2017, the mother could visit her children once every week. (iv) With the permission of the father, the mother could also take the children out for short durations at any public place such as for shopping, eating out to watch film or such other entertainment but shall not be allowed to take them to her house. At all such times the petitioner would visit the children alone.