Gujarat HC Grants Custody Of Infant Twins To Their Mother Dismissing Allegations Of Affairs And Homosexual Relations Against Her As Irrelevant [Read Order]

Responding to allegations of heterosexual and homosexual affairs against the mother of the infants, the Court remarked

"There appears to be clear intent and careful design to see that the she does not stand on her own and also be left with no self-esteem and gets completely bogged down and bent under the heap of allegations. We chose not to be led by any of these allegations and attempts of character assassination, which is a favored design to bring down the self-esteem and morale of a lady who dares to shape her life with dignity and self-help, after leaving her matrimonial home."

A two judge bench comprising of Justice Sonia Gokani and Justice N.V. Anjaria thus reiterated the trite law that custody of children less than 6 years of age must ordinarily be with their mother unless the welfare of children is an issue. The Court considered the steady income of the mother, her fixed place of residence and her mental well-being to manage her kids as sufficient parameters to grant her with the custody of her children.

The Court considered the welfare of the children to be the paramount factor of consideration for their custody and discarded the allegations maligning the character and capability of the petitioner by her husband, in-laws and even by her mother as being hostile to the cause of the petitioner mother who was living independently without their support.

In response to the challenges to the maintainability of the Habeas Corpus petition filed by the petitioner as a Special Criminal Application under Article 226, the Court relied on the Supreme Court's decision in Gohar Begam vs Suggi Alias Nazma Begam And Others and ruled that

"We also are conscious that ordinarily when there are other effective and efficacious remedies available, which would enable the parties to take recourse to promptly and effectively, the issuance of writ of habeas corpus may not be desirable to be issued. However, as held in the case of Gohar Begam vs Suggi Alias Nazma Begam And Others, even when other remedy for custody under the Guardians and Wards Act is available, that is no justification to deny issuance of Writ of Habeas Corpus when the court is dealing with an infant."

The Court acknowledged the petitioner's cause that she could not have waited for the civil court's adjudication on the custody of her children as matters of custody under the civil laws did not fall in the bracket of priority in the present conditions of pandemic due to the COVID-19 virus, especially considering that the welfare of the children may be jeopardized due to the criminal antecedents of their father and on account of the fact that one of the twins was being raised by his paternal aunt and not even by his father.

The Court also refused to place reliance on the alleged deed of divorce presented before it by the respondent husband which the respondent husband and the mother of the petitioner claimed had been executed between the petitioner and her husband as it regarded the validity of the deed itself to be disputed under the laws. It remarked that

"When the parties had given effect to their marriage under the Special Marriage Act, it was necessary for them to severe ties under the same law."

Nonetheless, it left the question of validity of the said deed open for adjudication by an appropriate authority while not entertaining any claim or refusal of the respondent husband regarding the nature of the dispute and the alleged arrangement of custody of children which placed reliance on the divorce deed.

The Court granted immediate transfer of custody of infants to their mother and directed S.P. Gandhinagar to ensure a periodical visit and supervision of both the children. It ordered the welfare officer from the Department of Women and Children Welfare to visit the petitioner and children at her residence every fortnight for the purpose of ensuring the well-being of the children. It also stated that any attempt by the respondent husband to take law in his hands or by anyone at his instance shall be viewed very seriously.