Some how above attachment is now working I am pasting text from judgement
Print
CR.MA/1200/2011 4/4 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION No. 1200 of 2011
=========================================================
LABHUBHAI BABUBHAI DESAI - Applicant(s)
Versus
STATE OF GUJARAT & 1 - Respondent(s)
========================================================= Appearance :
MS HETVI H SANCHETI for Applicant(s) : 1,
Mr.L.R.Pujari, APP for Respondent(s) : 1,
MR RJ GOSWAMI for Respondent(s) : 2,
=========================================================
CORAM :
HONOURABLE MR.JUSTICE MD SHAH
Date : 06/04/2011
ORAL ORDER
1. This petition under Section 482 of the Code of Criminal Procedure has been filed by the petitioner for
quashing and setting aside order dated 18-12-2010 passed by the learned Metropolitan Magistrate, Court
No.1, Ahmedabad, in Domestic Violence Case No.1109 of 2010 and order dated 13-1-2011 passed by the
learned City Sessions Judge, Ahmedabad, in Criminal Appeal No.513 of 2010 whereby petitioner was
directed to hand over custody of two minor children to the respondent No.2 till final disposal of Domestic
Violence Case No.1109 of 2010 filed by the respondent No.2.
2. The case in short is that respondent No.2, who is the wife of the petitioner, filed Cri.Misc.Appln.No.50 of
2010 in the Court of learned Metropolitan Magistrate, Ahmedabad, under Sec.97 of Cr.P.C. for issuance of
search warrant for getting custody of three children presently staying with the petitioner. Said application was
allowed on 25-6-2010 against which, petitioner preferred Cri.Misc.Appln.No.334 of 2010 before the Sessions
Court and it was allowed by quashing and setting aside the order passed by the learned Magistrate. However,
the petitioner was ordered to keep the children present in the trial Court on 14-10-2010. Being aggrieved by
the same, petitioner approached this Court by filing Cri.Misc.Appln.No.12567 of 2010 under Sec.482 of
Cr.P.C. This Court (Coram: Akil Kureshi,J.) vide order dated 25-10-2010 ordered to keep custody of eldest
daughter with the petitioner. The respondent No.2 was given liberty to make appropriation application under
the Protection of Women from Domestic Violence Act before the Magistrate seeking appropriate relief. In
pursuance of which, the respondent NO.2 filed Domestic Violence Case No.1109 of 2010 before the Court of
Labhubhai Babubhai Desai - vs State Of Gujarat & 1 - on 6 April, 2011
Indian Kanoon - https://indiankanoon.org/doc/1492403/ 1learned Metropolitan Magistrate for interim custody of twin children aged five years. The learned
Metropolitan Magistrate ordered the petitioner to hand over interim custody of two minor children to
respondent No.2. Criminal Appeal No.513 of 2010 preferred by the petitioner was rejected by the learned City
Sessions Judge, Ahmedabad. Hence, the present petition.
3. Heard learned advocate for the petitioner, Ms.Hetvi H.Sancheti, learned APP, Mr.L.R.Pujari for the
respondent No.2 and learned advocate, Mr.R.J.Goswami for the respondent No.2.
4. This Court has gone through both the orders passed by the trial court as well as the appellate Court. This
Court has also called the minor children in the chamber for ascertaining the wish of the children in presence of
learned advocates appearing for the respective parties. It is ascertained from the children that they have love
and affection towards their father and grandfather but not towards their mother. They are studying at present
by staying with their father. This Court could find that the children are not ready to leave their father even for
a single day. Normally, custody of the minor children should be kept with the mother as it is the mother who
can take best care of the children. However, in the present case, this Court could see that the children do not
have slightest love and affection towards their mother and hence, it will take much time for the children to get
adjusted with mother and get proper care and attention. However, as the children are already with the father
and have been taking much care and caution by the father to the utmost satisfaction of children and in the best
interest of the children almost in all respects, this Court is of the view that if the custody of the children is left
with the father, the children would be more happier. It is true that children have been staying with their father
and, therefore, children would not be inclined to stay with their mother as they did not get love and affection
of mother. However, keeping the welfare, wish and interest of the children in mind, this Court is of the
opinion that it will not be in the best interest of the children to keep their custody with the mother especially
when they have shown their love and affection towards their father and did not have slightest inclination
towards their mother. These aspects have not been considered by the trial court as well as the appellate court.
They have not even made an attempt to call the children in chamber for ascertaining their wish. It is seen that
a totally illegal order has been passed by the trial court in directing the complainant to file application under
the Guardian and Wards Act and to obtain order qua custody of two minor children and it is a matter of
surprise that said order has been confirmed by the learned Sessions Judge.
5. In view of the above, both the orders dated 18-12-2010 passed by the learned Metropolitan Magistrate
Court No.1 in Domestic Violence Case No.1109 of 2010 and 13-1-2011 passed by the learned Sessions Judge
in Criminal Appeal No.513 of 2010 require to be quashed and set aside and are accordingly quashed and set
aside. This petition is accordingly allowed. Looking to the peculiar facts and circumstances, court below is
directed to decide Domestic Violence Case No.1109 of 2010 as early as possible preferably within three
months from the date of receipt of copy of this order. The parties are at liberty to approach the Civil Court
under the Guardian and Wards Act for custody of the children and if such proceedings are initiated by either
of the parties, the observations made by this Court in this order will not come in the way of parties while
deciding such application.
(M.D.SHAH,J.)
radhan
Top
Labhubhai Babubhai Desai - vs State Of Gujarat & 1 - on 6 April, 2011
Indian Kanoon - https://indiankanoon.org/doc/1492403/ 2
