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Hemlataben Wd/O Mayankbhai Patel vs State Of Gujarat on 7 February, 2020

C/SCA/19087/2019 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19087 of 2019

HEMLATABEN WD/O MAYANKBHAI PATEL
Versus
STATE OF GUJARAT

Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1
MS ASMITA PATEL AGP DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 1
MR. SAHIL M SHAH(6318) for the Respondent(s) No. 2,3

CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 07/02/2020
ORAL ORDER

Order dated 27/06/2019 rendered in Civil Misc.
Application No.39 of 2018 by the learned 5th Additional
Sessions Judge, Sabarkantha at Himmatnagar is assailed by
the petitioner­mother of the child (at present aged eight
years); who had filed an application under Section 25
against her parents­in­law seeking custody of the minor
from them. Application Exhibit­5 under Section 12 of the
Guardians and Wards Act was also moved for interim
custody which has been denied and hence this petition.

On the last date of hearing, learned Counsel were
requested to produce the child; accordingly today the
child has been produced. The presence of the child was
required since in the impugned order, the Court below had
not recorded whether the child was willing to meet his
mother and thus his desire was required to be
ascertained.

Today, this Court had meeting with the child in the
Chambers and during the conversation with him, it was
realized that the child was unable to express his free

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C/SCA/19087/2019 ORDER

will and it was felt that there would be no harm, if the
mother is allowed to meet the child or keep him for a day
or two in a week so that the bond which has been gapped
amongst them so far, may be bridged again. This Court
feels that this would be in the interest of the minor;
inasmuch as; the dispute between the parents­in­law and
the mother of the child apart; the child cannot be
deprived of the love and affection of mother who is in
fact the only natural guardian of the child as provided
under the Act.

At the joint request of the learned Counsel however
this Court refrains entering into the merits of the case
at this stage of the proceedings as it is only concerned
with the interest and welfare of the child at this stage
and matter at large with the Court below.

In the opinion of this Court, having regard to the
overall facts and circumstances of the case, it is
desirable that the custody of the child is delivered to
the mother for Saturday and Sunday of every week.

Learned Counsel for the petitioner­mother states
that the mother would have no objection, if her parents­
in­law come with the child to her place of residence at
Ahmedabad on every Saturday morning and stay until the
evening of Sunday with the child in her house. Grand­
father of the child is personally present in the Court
being identified by learned Counsel Mr.Shah who states
that they are not willing to stay with the daughter­in­
law at Ahmedabad with the child.

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C/SCA/19087/2019 ORDER

It is clarified that it is not at the option of the
parents­in­law that the temporary custody as is being
directed would be given to the mother for two days as
afore­stated. The only option is as to whether they would
stay with her with the child or whether they would be
delivering the custody of the child for two days to the
mother as indicated above.

In above view of the matter, it is directed that the
custody of the minor-Kaksh shall be delivered by the
opponents for two days every week i.e. Saturday and
Sunday at the residence of the petitioner at Ahmedabad
and they would be at liberty to take back the custody in
the evening of every Sunday from the petitioner from
Ahmedabad until the further orders.

With the above observations and directions; without
entering into merits of the case as requested by the
learned Counsel for both the sides, this petition is
disposed of.

Direct Service is permitted.

(G.R.UDHWANI, J)
sompura

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