Gujarat High Court: A Division Bench of Sonia Gokani and N.V. Anjaria, JJ., while addressing an application with regard to the custody of minor children observed that, it is trite law that till the minor children become 6 years of age, the custody ordinarily shall have to be with mother unless their welfare is an issue with the Court.
In the instant petition respondent 4 stated that initially for 6 months, he and the applicant lived together and after being assured of the relationship, she got the marriage registered under the Special Marriage Act.
Twins were born to the applicant, further the respondent 4 alleged against her about having the intimacy with her female classmate.
It is also stated by respondent 4 that since the applicant was desirous of living freely, she agreed to the divorce on the stamp paper of Rs 100 and they separated.
He denied the allegations of her having been beaten and driven from her matrimonial home and with regard to the custody of the minors, it was also contended that he had not agreed with the children be retained by the applicant.
Mother of the applicant also chose to file an affidavit in favour of respondent 4.
Applicant alleged against the husband that he has criminal antecedents who deals with prohibited liquor and it is also reported in the newspaper.
Decision
According to the Advocate Chavada on behalf of the applicant, it has been a pure mistake on the part of the applicant not to have made mention of the application preferred under the Guardians and Wards Act provisions.
However, the said argument cannot be a bar to file writ petition of habeas corpus.
“Entire story of divorce deed has been concocted and marriage of the couple had been under Special Marriage Act, for they both being of different religions, divorce could not have taken place on Rs 100 stamp paper.”
Welfare of the Minor Children
Court observed that,
“What is far more important is to see as to whether the age of the twins is such where they can reveal their minds and what would be in their interest to do !
When obviously they are unable to state themselves for not having completed 3 years, their welfare would be of paramount consideration of the court.”
Bench stated that it is the requirement of the statute that once having chosen to be spouses under the Special Marriage Act, it is necessary for the parties to take recourse to the very law to even permanently sever the ties.
Writ of Habeas Corpus
In the instant matter, for the purpose of the writ of habeas corpus, Court has chosen not to permit reliance on the said document noticing the very question of the validity of this document couple with a serious allegation against the mother of the applicant.
The prime concern in the present matter is the children’s custody, it is a trite law that till they become 6 years of age, the custody ordinarily shall have to be with the mother unless their welfare is an issue with the Court.
Court further states that it shall not be led by any of the allegations attempting to assassinate the applicant’s character who dares to shape her life with dignity and self-help after leaving her matrimonial home.
Hence in view of the applicant’s position of her having a rented place and running a tiffin service with an earning of Rs 25,000, the right of the children to be maintained by both parents do not go away, the welfare of the children requires their custody to be handed over to the applicant.
With the custody of children being handed over to the mother immediately, the petition was disposed of. [Chavda Twinkle v. State of Gujarat, 2020 SCC OnLine Guj 1167, decided on 17-07-2020]
