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2025 DIGILAW 202 (GUJ)

Himanshu Kishorkumar Bhatt v. Union of India

2025-03-04

A.Y.KOGJE, SAMIR J.DAVE

body2025
ORDER : A.Y. KOGJE, J. 1. This petition is filed by the petitioner for following reliefs:- “(A) Your Lordships may be please to admit and allow the present petition in the interest of justice; (B) Your Lordships may be pleased to issue a writ of Habeas Corpus upon the respondent nos. 5 and 6 or any other persons deemed necessary, and direct them to produce the corpuses, i.e. sons of the petitioner and the respondent no. 5 namely Rudra (D.O.B. 20.11.2014, aged: 9 years) and Neeom (D.O.B: 01.11.2016, aged: 7 years), who ate, at present, in the emma custody of the respondent nos. 5 and 6, before this ‘Honourable Court and hand over their custody to the present petitioner; (C) Your Lordships may be pleased to issue a writ of Habeas Corpus upon the respondent nos. to 4 Authorities herein or any other authorities deemed necessary, and direct them to produce the corpuses, i.e. sons of the petitioner Rudra (D.O.B. 20.11.2014, aged: 9 years) and Neeom (D.O.B. 01.11.2016, aged: 7 years), the minor children of the petitioner and the respondent no. 5, who are, at present, in the custody of the respondent nos. 5 and 6, before this Honourable Court and hand over their custody to the present Petitioners; (D) During the pendency of the present application Your Lordships may be pleased to issue directions upon the respondent nos. 1 to 4 herein of any other authority deemed necessary, and direct them to not extend any VISA and/or citizenship applications made by the respondent nos, 5 and 6 or any other person in connection with the corpuses, i.e,, sons of the petitioner Rudra (D.O.B. 20.11.2014, aged: 9 years) and Necom (D.O.B. 01.11.2016, aged: 1 years), the minor children of the petitioner and the respondent no. 5, who are, at present, in the custody of the respondent nos, 5 and 6; (E) Pending admission and final disposal of this petition, our Lordships may be pleased to issue appropriate writ, order or direction directing the respondent nos, 5 and 6 hercin to hand over the custody of the corpuses herein, i.e., the sons of the petitioner and respondent no. 5 herein namely Rudra (D.O.B.: 20.11.2014, aged. 5 herein namely Rudra (D.O.B.: 20.11.2014, aged. 9 years) and Neeom (D.O.B.: 01.11.2016, aged: 7 years), i.e., the minor children, to the Power of Attorney-holdes of the petitioner herein, i.e., Bhatt Atulkumar Natvarlal; (F) Pending admission and final disposal of this, petition, Your Lordships may be pleased to issue appropriate writ, order or direction directing the concerned respondent nos. 1 to 4 authorities herein to take custody of the corpuses herein, i.e, the sols of the Petitioner Rudra D.O.B. 20.11.2014, aged. 9 years) and Neeom (D.O.B. 01.11.2016, aged: 7 years) i.e. the minor children to hand over their legal custody to the Power of Attorney-holder of the petitioner herein i.e. Bhatt Atulkumar Natvarlal.” 2. The petitioner is HIB visa holder of USA and is presently residing in U.S. This petition is preferred though power of attorney holder and his parental uncle. 3. The petitioner and respondent No.5 are married and out of the wedlock, two children are born in U.S. The present petitioner is a result of the disharmony in the matrimonial relationship between husband and wife for which now the minor children are the subject matter of the present litigation. 4. Out of the matrimonial dispute, already the parties have initiated several litigation in a rather short span, the details are as under:- (i) The respondent No.5 (wife) filed Civil Miscellaneous Application No. 22 of 2024, before Principal Judge Family Court Ahmedabad on 29.01.2024, under the provisions of Guardians and Wards Act, 1890 for appointment as a legal guardian and for the permanent custody of the children. (Case Status:Pending). The petitioner (husband) has filed an application under the provisions of Order 7 Rule 11 of the Code of Civil Procedure, 1908 in the proceedings. The application is placed for order. (ii) The respondent No. 5 (wife) has filed an application under Section 125 CrPC, 1973 before the Learned Principal Judge, Family Court on 29.01.2024 praying to direct the opponent to pay an amount of Rs.1,50,000/- each for both the corpora and an amount of Rs.2,00,000/- to the wife. (iii) The respondent no. 5 (wife) filed FIR before Mahila West Police Station, Ahmedabad City bearing CR No. 11191030240006 dated 27.02.2024 under Section 498A, 294(b), 323, 506(2) and 114 of the Indian Penal Code, 1860 and under Sections 7 and 8 of POCSO Act. (iii) The respondent no. 5 (wife) filed FIR before Mahila West Police Station, Ahmedabad City bearing CR No. 11191030240006 dated 27.02.2024 under Section 498A, 294(b), 323, 506(2) and 114 of the Indian Penal Code, 1860 and under Sections 7 and 8 of POCSO Act. (iv) The petitioner, his mother and father preferred SCRA No. 7521 of 2024, SCRA No. 7683 of 2024 and SCRA No. 7531 of 2024 challenging the above mentioned FIR that is, CR No. 11191030240006 dated 27.02.2024 before this Hon’ble Court. This Hon'ble Court vide order dated 28.06.2024 issued notice and directed not to take any coercive steps against petitioner. (v) The petitioner (husband) approached the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, State of Florida, Family Law Division on 22.02.2024 in the case bearing no. 24-DR-002358 for return of minor children to the United States of America. The respondent was served with notice on 22.02.2024 by email and again on 26.02.2024 despite the same, respondent No. 5 (wife) did not appear for hearing before the US Court on 27.02.2024. US Court vide interim order dated 29.02.2024 granted interim custody in favour of petitioner (husband) herein observing as follows: (a) US Court has both subject matter jurisdiction and personal jurisdiction over the parties and minor children. (b) State of Florida is the home state of minor children as defined under the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act). (c) Both the children are citizens of USA. (d) The minor children are abducted and wrongfully removed from the USA and improperly retained by mother in India without authority or justification, etc. (vi) Further, the US Court passed another order dated24.05.2024 restricting respondent No. 5 from taking any action extending, renewing or reapplying for the extension of visa of minor children. 5. The order sheet discloses sufficient efforts made by the Court to settle the case once and for all by referring to Mediation. Even the learned senior advocate and the advocate on record have made their best efforts to reconcile all in the interest of future of children. 6. Lastly, this Court also made an attempt to bring parties gather where with the Video Conferencing, an interaction was organized between the husband and wife alone and thereafter, in presence of the advocate also on 27.02.2025. The proceedings of Video Conferencing are recorded and made part of this record. 7. 6. Lastly, this Court also made an attempt to bring parties gather where with the Video Conferencing, an interaction was organized between the husband and wife alone and thereafter, in presence of the advocate also on 27.02.2025. The proceedings of Video Conferencing are recorded and made part of this record. 7. The interaction on Video Conferencing has saddened the Court seeing their blatant weaponizing of the children to get even with the each other on the spoilt matrimonial relationship between the husband and wife. 8. The Court has overseen the entire interaction between the husband and wife giving them hints to reconcile at least for the purpose of future of the children as the best interest of the children would lie in residing with the parents together rather than individually with separate parents. However, none of the parties appeared to be relenting and to the Court it appears that both the parents are rather eager to weaponize the children in their fight against each other rather than thinking in interest though both the parents claim that they have the best interest to their children in their mind. 8.1 The Court has seen the children who are with their mother, both are aged 9 years and 7 years and therefore, the Court is unable to conclude that they are in any way in illegal confinement or that the custody of the corpora in any manner is illegal. Though arguments after arguments have been made to raise several issues, but the Court is mindful of the fact that already a litigation has been initiated in USA by father and in India by mother, wherein one of the most relevant litigation being an application under the provisions of Guardianship and Wards Act being Civil Misc. Application No.22 of 2024. Reportedly, the arguments on preliminary objection before the Family Court has been concluded and judgment is awaited. As the proceedings have already been undertaken, the Court would therefore, refrain from taking up all the issues which otherwise would be matter of evidence when the application for Guardianship is taken up. Hence, at this stage, the Court having ascertained the well being and custody of the children is not inclined to interfere. 9. It is a pity that the minor children who at their age, enjoy visits to Zoos, gardens, parks and circuses, are to now visit different Courts across the nations, courtesy the parents. Hence, at this stage, the Court having ascertained the well being and custody of the children is not inclined to interfere. 9. It is a pity that the minor children who at their age, enjoy visits to Zoos, gardens, parks and circuses, are to now visit different Courts across the nations, courtesy the parents. However, to strike certain balance, Court would direct, till any orders are passed in pending Civil Misc. Application No. 22 of 2024, as under:- (i) Petitioner shall be given free access to both the children by Video Conferencing on both days of every weekend. (ii) As and when, the petitioner is in India, respondent- mother is directed to handover the custody of both children for one whole day of the week on which the children are having holiday in school only. 10. In view of the above, no further orders are required to be passed. The petition stands disposed of accordingly. Notice is discharged.