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The applicant, Ms Chavda, was married to one, Ajrudin Mamti under Special Marriages Act, 1955. A pair of twins were born out of the marriage. However, they agreed to divorce on a stamp paper of Rs. 100 on 14.08.2019. Since then, the applicant has been living independently, opposed to her parental home.

After 11 months of the separation, the applicant has filed for custody of her 3- year old children. One of the children stays with the mother-in-law and another with their paternal aunt. On commencement of proceedings, the father denied the custody on allegations of homosexuality and adultery. 

The applicant has chosen not to wait in the matter of civil litigation. They approached the Gujarat High Court with criminal antecedents of the respondent’s father. The applicant filed FIR for offenses punishable under Section 498 (A), 323, 504, 506 (2) and 114 of the IPC.

Arguments by the Petitioner

The applicant’s counsel has placed heavy reliance on the factual matrix. The timeline suggested the series of events in which the applicant was subjected to cruelty and indifference. The applicant had converted her religion for the sake of marriage and now has nowhere to turn to. 

The counsel also highlighted the current state of affairs. The applicant had not applied for custody for eleven months after divorce. This was only because she wanted to stabilize her life and not be left at the mercy of others.    

Arguments by the Respondents

The respondent’s counsel challenged the maintainability of the Habeas Corpus petition. The rationale is based on the conduct and factum of applicant’s application under Guardian and Wards Act. The applicant had suppressed facts before the District Judge. This would dis-entitle her to the discretionary relief under the writ of habeas corpus. 

The counsel submitted that the applicant got six months before registering under Special Marriages Act. However, disputes arose when the applicant developed relations with one of the respondent’s friend. Further, the applicant’s mother alleged her of intimacy with her female classmate. 

The counsel has object the applicant’s allegation of cruelty and battery. She alleged of being driven away from matrimonial home on 13.08.2019, while the divorce itself took place on 14.08.2019. Hence, the argument has no rationale.

The affidavit includes the mother’s statement as witness to the divorce. It was decided that the father shall have custody upon which he executed the divorce. The respondent has also denied agreeing to the custody with applicant. She has been residing all by herself and has no fixed place of abode. 

The counsel argued on technical grounds of filing the matter. The address given in the cause title of the petition was different from the one given in the additional affidavit. Moreover, the petition did not reveal the factum of the divorce deed. It was the applicant’s conduct which led to the divorce. Hence, the applicant tried to suppress vital facts with mala fide intentions.

Court’s Observation

The Court admitted the matter in Special Criminal Jurisdiction. It acknowledged that custody matters under the Civil Law are not prioritized owing to COVID- 19 situation. It has placed reliance on Gohar Begam v. Suggi and others. The apex court had then asserted- “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 the infant.”

The Court has also asserted strong remarks on the respondents’ arguments. There appeared a clear intent to bog down the applicant under heap of allegations. It stated- “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.”

The Court was satisfied of the applicant’s stable income and rented premises. Moreover, it is the right of children to be maintained by both the parents. The judiciary found applicant to be organized in her thoughts and actions and capable to manage both the children. Further, the court rejected any submission made by the mother of the applicant. Her allegations prima facie appeared to malign the daughter. 

Court’s Order

Justice Sonia Gokani and Justice N. V. Antaria have pronounced the order. The Court has dismissed the allegations against the petitioner. It granted her the custody of twin children. The Court has ordered the Additional Sessions Judge to ensure compliance of all the directions. The Welfare Officer from Department of Women and Children will visit the applicant every fortnight to ensure well-being.     

In addition, the respondents’ counsel attempted to stay the operation of the order. The Court did not accede as it would frustrate the purpose of the custody. 


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