Only Because Of FIR By Wife, He Has Filed Petition For Custody Of Children: Gujarat High Court Dismisses Habeas Corpus Plea

The Gujarat High Court recently dismissed a habeas corpus petition filed by a father who sought the custody of his children from his wife who is living separately, on the ground that the petitioner-father has not adopted alternative remedies available to him.

The division bench of Justice Umesh A. Trivedi and Justice M. K. Thakker observed:

“It is only because he is facing FIR for the offences and may face other case because of marital discord, this petition under the guise of habeas corpus, for the custody of children is filed, and therefore, it cannot be entertained for the simple reason that there are several other remedies, which could have been availed earlier at the first available opportunity, which is never availed and straightway the petitioner has filed this petition in this Court, and therefore, this petition cannot be entertained.”

The petitioner-father filed a writ of habeas corpus seeking the custody of his minor son and daughter. The counsel appearing for the petitioner submitted that wife has been living separate since December 17, 2022 out of a marital discord.

The court noted that the petitioner is facing FIR filed against him and family members for the offences punishable under Sections 498A (Husband or relative of husband of a woman subjecting her to cruelty), Section 323 (Punishment for voluntarily causing hurt), Section 504 (Intentional insult with intent to provoke breach of the peace), Section 506(2) (Punishment for Criminal Intimidation) and Section 114 (Abettor present when offence is committed).

It further observed that nowhere in the petition it is mentioned that even after the separation, the petitioner father has ever attempted to get the custody of child either permanent or interim or even sought for any visitation rights.

“There is also no case of the petitioner that children have been abducted by the respondent wife from the established custody unlawfully and they are illegally confined,” the court observed, while dismissing the petition.

Case Title: Raj Rameshbhai Mistry v. State of Gujarat

Case Citation: 2023 Livelaw (Guj) 91

Coram: Justice Umesh A. Trivedi and Justice M. K. Thakker

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