Dismissed

Manan Salilbhai Mehta v. State of Gujarat

Gujarat HC22 Dec 2021SCR.A/12639/2021

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition for habeas corpus seeking contact with a minor daughter. Since the Family Court was already seized of the custody issue, the court declined to intervene, irrespective of the cited apex court precedent. The pending transfer petition before the apex court did not alter this decision.

What did the court decide?

Writ of habeas corpus seeking contact with minor daughter dismissed as Family Court is seized of the subject matter.

Manan Salilbhai Mehta Vs State of Gujarat — Child Custody and Guardianship | Gujarat HC (2021)

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R/SCR.A/12639/2021 ORDER DATED: 22/12/2021

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CRIMINAL APPLICATION NO. 12639 of 2021

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MANAN SALILBHAI MEHTA

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Versus STATE OF GUJARAT

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Appearance:

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MR ANAND B GOGIA(5849) for the Applicant(s) No. 1 MS KAJAL L KALWANI(6623) for the Applicant(s) No. 1 MS MUSKAN A GOGIA(6624) for the Applicant(s) No. 1 for the Respondent(s) No. 2

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MS JIRGA JHAVERI APP for the Respondent(s) No. 1

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CORAM: HONOURABLE MR. JUSTICE S.H.VORA

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and HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Date : 22/12/2021 ORAL ORDER (PER : HONOURABLE MR. JUSTICE S.H.VORA)

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By way of present petition under Article 226 of the Constitution of India, the petitioner seeks issuance of writ of habeas corpus directing the respondent No.2 to permit the petitioner to talk with his minor daughter – Manita at least twice in a week for about 15-20 minutes by way of Whats App, Skype and/or any other electronic mode.

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It appears that the petitioner and the respondent No.2 have entered into marriage tie on 8.6.2014 at Rajkot and out of their wedlock, they have minor child – Manita. It appears that the said minor child is with the respondent No.2 since December 2016. Further, it appears that the petitioner husband has also filed divorce suit being Family Suit No.186 of 2020 against the respondent No.2 before the Family Court, Rajkot, under Section 13 of the Hindu Marriage Act, a copy of the Family Suit No.186 of 2020 is annexed at Annexure-B. Further, it appears that the

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Page 1 of 3

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R/SCR.A/12639/2021 ORDER DATED: 22/12/2021

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petitioner husband has also filed an application under Section 26 of the Hindu Marriage Act for custody of the child, annexed at Annexure-C, and the same is pending. In the said application pending before the Family Court, Rajkot, the petitioner has made following prayers in terms of para-8a and b:

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“8a. The Hon’ble Court may be pleased to pass an order/ direction to the defendant to return and hand over the custody of the child i.e. Manita to the plaintiff, for her maintenance.

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b. Alternatively and without prejudice to above, the Hon’ble Court may please be direct to the defendant – wife to permit plaintiff, to meet his daughter - ‘Manita’, whenever, plaintiff likes, either by personal visit or by audio or video call.”

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We have heard learned advocate Mr. Anand B. Gogia appearing for the petitioner husband.

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In support of his prayer made in the present petition, he has pressed into service the decision rendered by Hon’ble Apex Court in case of Yashita Sahu v. State of Rajasthan reported in 2020 (3) SCC 67 to contend that the present petition in present form is maintainable under Article 226 of the Constitution of India and therefore, made a request to permit the petitioner to talk / to see the minor child as per the prayer made in terms of para – 9(b) reads as under:

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“9(b) This Hon’ble Court may be pleased to allow this Special Criminal Application by issuing a Writ of habeas Corpus or any other appropriate Writ, Direction or Order, directing the Respondent No.2 to permit the Petitioner to talk with his minor daughter – Manita at least twice in a week for about 15 – 20 minutes by way of Whats App, Skype and/or any other electronic mode.”

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Looking to the nature of the proceedings pending before the Family Court, Rajkot, it appears that identical relief is prayed for before this Court by way of habeas corpus petition under Article 226 of the Constitution of India. It is a matter of fact that the minor child is in custody of the mother i.e. the respondent

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Page 2 of 3

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R/SCR.A/12639/2021 ORDER DATED: 22/12/2021

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No.2 since December 2016 and by way of present petition, the petitioner seeks relief to permit the petitioner to talk with his minor daughter. It is also noticed by us that the minor child is not either in illegal confinement or custody of the respondent No.2. We are fully conscious of the fact that in the matter of custody of the child, welfare of the child is always paramount consideration. Since the Family Court is already seized with the subject matter of present proceedings, more particularly of the relief as prayed for in the present petition, there is no reason for this Court to entertain present petition though it may be maintainable in light of the decision rendered in case of Yashita Sahu (supra). Accordingly, we dismiss the present petition not on merits but on account of the fact that the Family Court, Rajkot is also already seized with the subject prayer made in the present petition as aforesaid.

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Lastly, it is contended by the learned advocate for the petitioner that the respondent No.2 has preferred Transfer Petition before the Hon’ble Apex Court and in the said proceedings, further proceedings before Family Court, Rajkot is stayed and therefore, this petition may be entertained. We are not inclined to do so since outcome of the proceedings before the Apex Court either way has any bearing so far as present petition is concerned.

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(S.H.VORA, J)

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(ANIRUDDHA P. MAYEE, J.)

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KAUSHIK D. CHAUHAN

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Manan Salilbhai Mehta v. State of Gujarat

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Manan Salilbhai Mehta v. State of Gujarat

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