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Kiran Pujar S/O Lt. Giriappa Pujar … vs State Of Gujarat on 28 November, 2019

R/SCR.A/5043/2019 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CRIMINAL APPLICATION NO. 5043 of 2019

KIRAN PUJAR S/O LT. GIRIAPPA PUJAR THRO POA VINUTHA PUJAR
GIRIAPPA PUJAR W/O MANJUNATH R C
Versus
STATE OF GUJARAT

Appearance:
SHASHVATA U SHUKLA(8069) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MILAN R MARUTI(7338) for the Respondent(s) No. 5,6,7,8
MR PM LAKHANI(1326) for the Respondent(s) No. 4
MRS R P LAKHANI(3811) for the Respondent(s) No. 4
MR RONAK RAVAL ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE DR.JUSTICE A. P. THAKER

Date : 28/11/2019

ORAL ORDER

(PER : HONOURABLE DR.JUSTICE A. P. THAKER)

1. In this petition filed under SectionArticle 226 of the Constitution of
India, the petitioner seeks a writ in the nature of habeas corpus
directing respondent No.4 to produce his minor child and handover
the custody of the said minor to the petitioner.

2. The petition is based on the facts that the petitioner is the
natural father and guardian of the minor child. According to the
petitioner, he and respondent No.4 are husband and wife and both
medical practitioners and they got married as per Hindu rites and

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rituals on 01.04.2002. On 02.12.2006, a daughter namely Ananya
Pujar was born at Gandhinagar and, thereafter, the family moved to
Australia in February 2007.

2.1 On 06.08.2011, the corpus – Anant was born in Townsville,
Australia. Both Ananya and Anant are Australian citizens. On
29.12.2018, respondent No.4 – mother visited India along with both
children and the petitioner had booked return tickets for all three of
them and they were scheduled to return to Australia on 25.01.2019
to recommence their schooling. As per the averments made in the
petition, when the petitioner contacted respondent No.4, she
refused to return to Australia with the children and informed the
petitioner that she would remain in Gandhinagar and at that time,
the petitioner has asked respondent No.4 to return the children, but
she refused to do so. Thereafter, he came to India and tried to talk
with respondent No.4, but she refused to speak with him and they
did not allow to meet with the children. It is contended by the
petitioner that he approached the Federal Circuit Court of Australia
under the Family Law Act, 1975 on 07.02.2019 seeking sole parental
responsibility for the children for Ananya and corpus – Anant and in
that petition, he was able to secure Ananya’s return to Australia by
negotiation with respondent No.4. However, she refused to return
the corpus – Anant to the petitioner. It is further contended by the
petitioner that the corpus wishes to join him. On the aforesaid
ground, the petitioner has preferred this petition.

3. This petition has been resisted by respondent No.4 denying all
the facts of the petition and contested the petition and stated that
she is a natural guardian and biological mother of the child Anant
and has also stated that the custody of the minor child is with his
own mother does not amount to illegal custody or illegal
confinement and, therefore, the present petition is not
maintainable. It is further stated that to allow the minor child with
the mother is always desirable in the larger welfare of the child

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himself. She has stated that in the peculiar facts and circumstances
of the case, there is a high risk of the child being abused by the
father and there is high risk of domestic violence upon the child
more particularly in Australia. It is stated that the child is not in any
confinement, he is moving freely under the care of his mother and
he is studying in a well known school namely Aditya Birla Public
School, Nagda, Madhya Pradesh. She has stated that when she tried
to transfer the money from her joint account with the petitioner, she
could not do so as the petitioner was having full control over the
bank account and when she talked with the petitioner, he started
verbally abusing her. The main contention of respondent No.4 is
that the petition is not maintainable and the custody of the minor
child can not be treated as illegal custody. The other respondents
have also filed affidavit-in-reply by denying the contentions of the
petition.

4. In rejoinder, an additional affidavit has been filed by the
petitioner reiterating the same facts denying the allegations of
respondent No.4 – wife.

5. During the course of hearing, an additional affidavit-in-reply
has been filed on behalf of respondent No.4 – mother wherein she
has stated that she is willingly assured that the family may reunite
in the month of April 2020 and, therefore, she shall not willingly
consent of departure to Australia before completion of the Academic
Year as she would not have any one to take care of education and
safety. She has submitted that as she being only medical
practitioner serving in department at Nagda, Madhya Pradesh, it
would not be possible to her to obtain leave for a long period, which
would adversely affect her patients and her goodwill as a medical
practitioner and, therefore, she is reunite with the petitioner along
with the minor son in April 2020.

6. Heard Mr.Shashvata Shukla, learned advocate for the

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petitioner, Mr.P. M. Lakhani, learned advocate for respondent No.4,
Mr.Milan Maruti, learned advocate for respondents No.5 to 8 and
Mr.Ronak Raval, learned Additional Public Prosecutor for respondent
No.1 – State. Perused the materials placed on record and the
decisions cited at the Bar.

7. Mr.Shashvata Shukla, learned advocate for the petitioner has
submitted the same facts which are narrated in the memo of
petition and has submitted that the age of the minor child is 8 years
and he desires to go with his father assumes importance. He has
submitted that the family is holding citizenship of Australia and
Australia Court has passed the order in favour of the petitioner,
which holds field as no further action has been taken by the mother
against the said order. He has submitted that the Australia Court
has already dealt with the disputes of the parties and has passed
the order in favour of the petitioner. While referring to the wish
expressed by the minor during the interaction with the Court, he has
submitted that the minor child wants to go to the Australia with his
father and, therefore, necessary order in this respect directing
respondent No.4 – mother to handover the custody of the minor
child along with his travel documents may be passed.

8. Per contra, Mr.P. M. Lakhani, learned advocate for respondent
No.4 – mother has vehemently submitted that the petition itself is
not maintainable as the custody of the minor child is with the
mother which cannot be treated as illegal custody. He has
submitted that the petitioner should file proper case either under
the Guardians and SectionWards Act or Hindu Minority and SectionGuardianship
Act. He has submitted that let the Civil Court decides the question
of custody of minor child and this Court may refrain itself by passing
any order of handing over the custody of the minor child to the
petitioner. He has submitted that in view of alternative remedy
available with the petitioner for filing the necessary legal
proceedings under the aforesaid two Acts, the petition under Article

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226 of the Constitution of India may not be entertained and the
same may be dismissed.

8.1 While relying upon the following decisions, learned advocate
for the respondent No.4 has urged to dismiss the present petition.

(i) Veena Kapoor Vs. Varinder Kumar
Kapoor, AIR 1982 SC 792;

(ii) Saihba All Vs. State of Maharashtra, AIR
2003 SC 4205;

(iii) Nithya Anand Raghavan Vs. State of NCT

of Delhi and Another, AIR 2017 SC 3137;

(iv) Rajesh K. Gupta Vs. Ram Gopal
Agarwala, AIR 2005 SC 2426;

(v) Marari Lal Sharma Vs. State of West
Bengal and others, Writ Petition

No.13048 (W) of 2013 of the High Court
of Calcutta;

(vi) Manuj Sharma Vs. State of Uttar Pradesh
others, Writ Petition No.82 of 2019 of
the High Court of Allahabad;

9. Having considered the contentions of the learned advocates
for the parties and perusing the record, it appears that there is no
dispute as to the relationship between the parties and regarding the
Australian citizenship of the father and mother as well as two
children. At this juncture, it is pertinent to note that the Supreme
Court has time and again settled the principles of governing the
custody of the minor child in various decisions and one of such
decisions is in the case of Gaurav Nagpal Vs. Sumedha Nagpal,
(2009) 1 SCC 42. In the said decision, while referring to the English

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law decisions and American decisions as well as of Indian decisions,
it is emphasized that the principles in relation to the custody of a
minor child are well settled. The paramount consideration of the
court in determining the question as to who should be given custody
of a minor child, is the “welfare of the child” and not rights of the
parents under a statute for the time being in force or what the
parties say. The court has to give due weightage to the child’s
ordinary contentment, health, education, intellectual development
and favourable surroundings but over and above physical comforts,
the moral and ethical values have also to be noted. They are equal if
not more important than the others. Mature thinking is indeed
necessary in such a situation. When the court is confronted with
conflicting demands made by the parents, each time it has to justify
the demands. The court has not only to look at the issue on
legalistic basis. In such matters, human angles are also relevant for
deciding the issues. The object and purpose of the 1890 Act is not
merely physical custody of the minor but due protection of the
rights of ward’s health, maintenance and education. The power and
duty of the court under the Act is the welfare of minor.

9.1 Further on the basis for issuance of a writ of habeas corpus is
an illegal detention; but even in such a case, the law is concerned
not so much with the illegality of the detention as with the welfare
of the child.

9.2 In the case of Gaurav Nagpal (supra), the Apex Court has
held and observed in paras-36, 37, 38, 39, 40, 41, 42, 43 and 50 are
as under:-

36. SectionThe Guardians Act, consolidates and
amends the law relating to guardians and
wards. Section 4 of the said Act defines “minor”
as a person who has not attained the age of
majority. “Guardian” means “a person having
the care of the person of a minor or of his
property, or of both his person and property.

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“Ward” is defined as “a minor for whose person
or property or both, there is a guardian”.

Chapter II (Sections 5 to Section19 of Guardians Act)
relates to appointment and declaration of
guardians. Section 7 thereof deals with “power
of the Court to make order as to guardianship”
and reads as under :

“7. Power of the Court to make order as to
guardianship. – (1) Where the Court is satisfied
that it is for the welfare of a minor that an order
should be made –

(a) appointing a guardian of his person or
property, or both, or
(b) declaring a person to be such a
guardian,

the Court may make an order accordingly.

(2) An order under this section shall imply
the removal of any guardian who has not been
appointed by will or other instrument or
appointed or declared by the Court.

(3) Where a guardian has been appointed
by will or other instrument or appointed or
declared by the Court, an order under this
section appointing or declaring another person
to be guardian in his stead shall not be made
until the powers of the guardian appointed or
declared as aforesaid have ceased under the
provisions of this Act.

37. Section 8 of the Guardians Act
enumerates persons entitled to apply for an
order as to guardianship. Section 9 empowers
the Court having jurisdiction to entertain an
application for guardianship. Sections 10 to Section16
deal with procedure and powers of Court.
Section 17 is another material provision and
may be reproduced;

"17. Matters to be considered by the Court in
appointing guardian. - (1) In appointing or
declaring the guardian of a minor, the Court
shall, subject to the provisions of this section,
be guided by what, consistently with the law to
which the minor is subject, appears in the

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circumstances to be for the welfare of the
minor.

(2) In considering what will be for the
welfare of the minor, the Court shall have
regard to the age, sex and religion of the
minor, the character and capacity of the
proposed guardian and his nearness of kin to
the minor, the wishes, if any, of a deceased
parent, and any existing or previous relations of
the proposed guardian with the minor or his
property.

(3) If the minor is old enough to form an
intelligent preference, the Court may consider
that preference.

     *              *           *        *
*

(5) The Court shall not appoint or declare

any person to be a guardian against his will."

(emphasis supplied)

38. Section 19 prohibits the Court from
appointing guardians in certain cases. Chapter
III (Sections 20 to Section42) prescribes duties, rights
and liabilities of guardians.

39. SectionThe Act is another equally important
statute relating to minority and guardianship
among Hindus. Section 4 defines "minor" as "a
person who has not completed the age of
eighteen years". "Guardian" means "a person
having the care of the person of a minor or of
his property or of both his persons and
property", and inter alia includes a natural
guardian. Section 2 of the Act declares that the
provisions of the Act shall be in addition to, and
not in derogation of 1890 Act.

32. Section 6 enacts as to who can be said
to be a natural guardian. It reads thus;

6. Natural guardians of a Hindu Minor. -
The natural guardians of a Hindu minor, in
respect of the minor's person as well as in
respect of the minor's property (excluding his

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or her undivided interest in joint family
property), are

(a) in the case of a boy or an unmarried girl

- the father, and after him, the mother;

Provided that the custody of a minor who has
not completed the age of five years shall
ordinarily be with the mother;

(b) in the case of an illegitimate boy or an
illegitimate unmarried girl - the mother, and
after her, the father;

(c) in the case of a married girl - the
husband:

Provided that no person shall be entitled to
act as the natural guardian of a minor under
the provisions of this section -

   (a)    if he has ceased to be a Hindu, or
(b) if he has completely and finally

renounced the world becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi).

Explanation. - In this section, the expressions
"father" and "mother" do not include a step-
father and a step-mother.

41. Section 8 enumerates powers of natural
guardian. Section 13 is extremely important
provision and deals with welfare of a minor. The
same may be quoted in extenso;

"13. Welfare of minor to be paramount
consideration - (1) In the appointment or
declaration of any person as guardian of a
Hindu minor by a court, the welfare of the
minor shall be the paramount consideration.

(2) No, person shall be entitled to the
guardianship by virtue of the provisions of this
Act or of any law relating to guardianship in
marriage among Hindus, if the court is of
opinion that his or her guardianship will not be
for the welfare of the minor."

(emphasis supplied)

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42. Section 26 of the Hindu Marriage Act,
1955 provides for custody of children and
declares that in any proceeding under the said
Act, the Court could make, from time to time,
such interim orders as it might deem just and
proper with respect to custody, maintenance
and education of minor children, consistently
with their wishes, wherever possible.

43. The principles in relation to the custody
of a minor child are well settled. In determining
the question as to who should be given custody
of a minor child, the paramount consideration is
the 'welfare of the child' and not rights of the
parents under a statute for the time being in
force.

50. When the court is confronted with
conflicting demands made by the parents, each
time it has to justify the demands. The Court
has not only to look at the issue on legalistic
basis, in such matters human angles are
relevant for deciding those issues. The court
then does not give emphasis on what the
parties say, it has to exercise a jurisdiction
which is aimed at the welfare of the minor. As
observed recently in Mausami Moitra Ganguli
Vs. Jayant Ganguli, (2008) 7 SCC 673, the Court
has to due weightage to the child's ordinary
contentment, health, education, intellectual
development and favourable surroundings but
over and above physical comforts, the moral
and ethical values have also to be noted. They
are equal if not more important than the
others.

10. It is pertinent to note that all the decisions cited by learned
advocate for respondent No.4 are on the same line and, therefore,
they are not discussed in detail.

11. Now, considering the peculiar facts and circumstances of the
present case, it is pertinent to note that the petitioner herein has
earlier moved the Federal Circuit Court, Australia under Family Law
Act, 1975 and the Court of Australia has passed the order in favour
of the petitioner, which is annexed as Annexure - D (page Nos.27 to

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30 to the petition). The relevant observations of the Federal Circuit
Court, Australia are as under:-

1. Mr.Kiran Pujar and Ms Tarika Kiran Pujar
are the parents of Ananya born 2
December 2006 and Anant born 6 August
2011.

2. The parents began to live together when
they married on 1 April 2002.

3. They separated on a final basis on 29
December 2018.

4. In between those two dates, they arrived
in Australia on what are known as Sectionsection
457 visas.

5. The father, Dr.Kiran Pujar, undertook
medical appointments in North
Queensland and now has a practice in Ayr.

6. At the time of the parties separation there
was an agreement that the mother and
the children would travel to India for a
holiday.

7. Both of the parents and both of the
children are now Australian citizens.

8. It seems from the material sought to be
filed by the mother (which she was unable
to file) but now marked as an exhibit, that
the children, because of their parents'
places of birth, also have a type of
citizenship in India. She refers to it as
overseas Indian citizenship.

9. The father consented to the mother and
the children's travel to India for a short
period of time.

10. In this mind they were to be returning to
Australia before the commencement of
the school year in 2019. It appears that
mother had other plans.

11. On arriving in India at some point in time

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she determined that she would not be
returning to Australia with the children.

12. xxx xxx xxx

13. I am satisfied that the mother has notice
of today's proceedings and unlike the past
where she participated by telephone, has
not sought to engage with the court by
telephone for this hearing.

14. She has sought to file documents but they
have not met the criteria of documents to
be able to be filed and their filing has
been rejected, but I have had
consideration to them for reasons of
today's judgment, and they are an exhibit
in this hearing.

15. xxx xxx xxx

16. The mother has refused to return the
other child to Australia, and seems intent
on remaining in India with him. That child
was born in Australia.

17. That child, until he went to holiday, had no
real first-hand experience of India and
very limited exposure to any of the Indian
languages. The parents say that they
spoke English at home.

18. The mother has taken the child overseas
without the father's consent to the child
remaining overseas. She has removed the
child from his Australian school education
and enrolled him unilaterally in the Indian
education system, and has now, by reason
of his sister's return to Australia,
separated the siblings, and has brought
about an end to the relationship that
existed between the father and the child
at least on a face-to-face basis.

19. xxx xxx xxx

20. The mother's actions in now retaining the
son overseas, separated from both his
sister and his father, is not a decision that

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is in that child's best interest. It severs the
important sibling relationship. It severs
the important father-son relationship.

21. xxx xxx xxx

22. The mother has displayed a poor attitude
to the responsibilities of parenthood in the
actions that she has undertaken, since
separating from the father, initially in
retaining both children overseas and
retaining the son. She has not focused on
his needs but on hers.

23. xxx xxx xxx

24. I am satisfied that the evidence currently
before the court determines that the son
should be returned as soon as possible to
live in Australia, to enable a relationship
with his sibling and with his father, and to
continue his education, and to continue
living in a set of circumstances, being the
only set of circumstances that he has
known since the date of his birth.

25. xxx xxx xxx

26. On balance it is in the son's bet interest,
that he should, pending further order, live
with his father and that there should then
be consequential orders requiring the
mother, as soon as possible, to return him
to the Commonwealth of Australia.

12. In the facts of the present case, corpus-child was brought to
India by the respondent-wife and the petitioner has filed present
petition. In similar facts, in the case of Surya Vandan v. State of
Tamil Nadu, AIR 2015 SC 2243, the Supreme Court has held and
observed in paras - 53, 54 and 55 as under:-

"53. What then are some of the key
circumstances and factors to take into
consideration for reaching this final goal or final
objective? First, it must be appreciated that the
"most intimate contact" doctrine and the

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"closest concern" doctrine of Surinder Kaur
Sandhu (AIR 1984 SC 1224) are very much
alive and cannot be ignored only because their
application might be uncomfortable in certain
situations. It is not appropriate that a domestic
court having much less intimate contact with a
child and having much less close concern with
a child and his or her parents (as against a
foreign court in a given case) should take upon
itself the onerous task of determining the best
interests and welfare of the child. A foreign
court having the most intimate contact and the
closest concern with the child would be better
equipped and perhaps best suited to
appreciate the social and cultural milieu in
which the child has been brought up rather
than a domestic court. This is a factor that
must be kept in mind.

54. Second, there is no reason why the
principle of "comity of courts" should be
jettisoned, except for special and compelling
reasons. This is moreso in a case where only an
interim or an interlocutory order has been
passed by a foreign court (as in the present
case). In McKee which has been referred to in
several decisions of this court, the Judicial
Committee of the Privy Council was not dealing
with an interim or an interlocutory order but a
final adjudication. The applicable principles are
entirely different in such cases. In this appeal,
we are not concerned with a final adjudication
by a foreign court - the principles for dealing
with a foreign judgment are laid down in
Section 13 of the Code of Civil Procedure.

"13. When foreign judgment not conclusive.-A
foreign judgment shall be conclusive as to any
matter thereby directly adjudicated upon
between the same parties or between parties
under whom they or any of them claim
litigating under the same title except-(a) where
it has not been pronounced by a Court of
competent jurisdiction;(b) where it has not
been given on the merits of the case;(c) where
it appears on the face of the proceedings to be
founded on an incorrect view of international
law or a refusal to recognise the law of India in
cases in which such law is applicable;(d) where

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the proceedings in which the judgment was
obtained are opposed to natural justice;(e)
where it has been obtained by fraud;(f) where it
sustains a claim founded on a breach of any
law in force in India.

In passing an interim or an interlocutory order,
a foreign court is as capable of making a prima
facie fair adjudication as any domestic court
and there is no reason to undermine its
competence or capability. If the principle of
comity of courts is accepted, and it has been so
accepted by this court, we must give due
respect even to such orders passed by a
foreign court. The High Court misdirected itself
by looking at the issue as a matter of legal
rights of the parties. Actually, the issue is of the
legal obligations of the parties, in the context
of the order passed by the foreign court."

55. If an interim or an interlocutory order
passed by a foreign court has to be
disregarded, there must be some special
reason for doing so. No doubt we expect
foreign courts to respect the orders passed by
courts in India and so there is no justifiable
reason why domestic courts should not
reciprocate and respect orders passed by
foreign courts. This issue may be looked at
from another perspective. If the reluctance to
grant respect to an interim or an interlocutory
order is extrapolated into the domestic sphere,
there may well be situations where a Family
Court in one State declines to respect an
interim or an interlocutory order of a Family
Court in another State on the ground of best
interests and welfare of the child. This may well
happen in a case where a person ordinarily
resident in one State gets married to another
person ordinarily resident in another State and
they reside with their child in a third State. In
such a situation, the Family Court having the
most intimate contact and the closest concern
with the child (the court in the third State) may
find its orders not being given due respect by a
Family Court in the first or the second State.
This would clearly be destructive of the
equivalent of the principle of comity of courts
even within the country and, what is worse,

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destructive of the rule of law."

13. Now, admittedly, the aforesaid interim order of the Australia
Court has not been objected by filing any further proceedings by the
mother and it holds the field. The order being judicial order though
passed by the Foreign Court and there may not be any recognition
of the country as a reciprocative territory, the order of competent
judicial forum may be respected, especially when such order of
Foreign Court is not reverted by the Appellate Authority thereof.
Now, admittedly, in this case, respondent No.4 has not challenged
the order of Australia Court and, therefore, at this stage the
observation made by the Australia Court as referred to above may
be accepted.

14. During the pendency of this petition, the Court has also
sought willingness of the minor child who is now 8 years of age and
he is in a position to express his wish and will, it was found that the
minor child consistently shown his willingness to join his father than
his mother. From the peculiar facts and circumstances of the case, it
clearly transpires that the welfare of the minor child is with the
father and considering his will and wish, it is for the benefit of the
minor child that he may be permitted to retain with father,
especially when the mother is also going to reunite in April, 2020 as
per her additional affidavit dated 16.11.2019.

15. For the foregoing reasons, the present petition is allowed. The
custody of the minor - Anant which has been given to the father
during the pendency of this petition vide order dated 25.11.2019
passed by this Court is ordered to be continued and the custody of
corpus Anant is ordered to be given to the petitioner - father.

16. The respondent No.4 - mother is hereby directed to handover
the passport and travel documents of the minor Anant to the
petitioner - father forthwith.

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17. The petition stands disposed of accordingly. No order as to
cost.

Sd/-

(S.R.BRAHMBHATT, J)

Sd/-

(A. P. THAKER, J)

FURTHER ORDER

At this stage, learned advocate for respondent No.4 has urged
the Court to stay this order for 30 days. Looking to the reasons for
ordering the custody and allowing the child to be with the father -
petitioner herein, we are unable to accede to the request and the
request is rejected.

Sd/-

(S.R.BRAHMBHATT, J)

Sd/-

(A. P. THAKER, J)

V.R. PANCHAL

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