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Murtaza Quaid Mahuwala vs State Of Gujarat on 19 February, 2020

R/SCR.A/10944/2018 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CRIMINAL APPLICATION NO. 10944 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE V.P. PATEL

1 Whether Reporters of Local Papers may be allowed to
see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the
judgment ?

4 Whether this case involves a substantial question of law

as to the interpretation of the Constitution of India or any
order made thereunder ?

MURTAZA QUAID MAHUWALA
Versus
STATE OF GUJARAT 3 other(s)

Appearance:

MR NACHIKET A DAVE(5308) for the Applicant(s) No. 1
MR BJ TRIVEDI(921) for the Respondent(s) No. 4
MR JT TRIVEDI(931) for the Respondent(s) No. 4
MR SH LIGHTWALA(1767) for the Respondent(s) No. 4
MS JIGNASA B TRIVEDI(3090) for the Respondent(s) No. 4
MR. RONAK RAVAL, APP for the Respondent(s) No. 1
UNSERVED WANT OF TIM(31) for the Respondent(s) No. 2,3

CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE V.P. PATEL

Date : 19/02/2020

CAV JUDGMENT

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(PER : HONOURABLE MR.JUSTICE V.P. PATEL)

1. The Petitioner has filed this Petition under Articles 14, 19, 21 and
226 of the Constitution of India claiming the reliefs in terms of
paragraph 23 as under:

“(a) This Hon’ble Court may be please to issue a writ of
habeas corpus or a writ in nature of habeas corpus or
any other appropriate writ, order or direction against the
Respondent No.4 to produce the minor child, Master
Mustali before this Hon’ble Court on the date and time
as may be directed by the Hon’ble Court and in the
event if the Respondent No.4 fails to do so, the Respondent
Nos. 2 and 3 be ordered and directed to take the
custody of the child from the Respondent No.4 and
produce the minor child, before this Hon’ble Court,
and thereafter hand the custody of the child to the
Petitioner.

(b) For a writ of Habeas Corpus and direction under
Article 226 of the Constitution of India, in terms of
prayer clause (a) above.

(c) For the reliefs as claimed for in prayer clause(a)
above.

(d) That pending hearing and final disposal of this
Petition, the Respondent No.4 be restrained by an Order and
Injunction of this Hon’ble Court from removing the minor
child from the jurisdiction of this Court and depositing
the passport of herself and the minor child, in this Court.

(e) For ad-interim reliefs in terms of prayer clause (d)
above.

(f) For costs of this Petition.

(g) For such other and further reliefs as the nature and
circumstances of the case may require.”

2. Heard learned Advocate Mr. Nachiket Dave for the Petitioner,

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learned Advocate Mr. Brijesh J. Trivedi for Respondent No.4 and
Mr. Ronak Raval, learned APP for the Respondent – State of
Gujarat.

3. Facts of the Case:

3.1 The Petitioner and Respondent No.4 were married according
to Muslim rites and rituals on 11th July 2010 in Valsad, Gujarat and
that out of the said wedlock child named Mustali Mahuwala was
born on 29.12.2013 in Dallas, Taxas, USA and he is at present 4
years old. The Respondent No.4 was earlier an Indian citizen who
voluntarily surrendered her citizenship of India and accepted the
citizenship of USA. That few months after the marriage, the
relationship between the petitioner and Respondent 4 irretrievably
broke down and the petitioner preferred divorce proceedings in the
District Court in Dallas, County, USA which has been finally
decreed by the the learned Court on 12.7.2018 and the marriage
between the petitioner and the Respondent No.4 is dissolved. The
learned Court has granted custody of the minor child in favour of
the petitioner.

3.2 That during the pendency of the divorce proceedings, the
Respondent No.4 was permitted by the Petitioner to travel to
Australia with minor child for a limited period of 3 months i.e.
8.7.2017 to 08.10.2017. That the petitioner applied for overseas
citizenship of India from Australia for herself and her minor child.
That the Respondent No.4 for an on behalf of the minor child has
forged the petitioner’s signature in the said application suggesting
that the petitioner has consented for getting overseas citizenship of
India. That the petitioner lodged complaint dated 15.9.2018 at

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Valsad City Police Station. That the petitioner had also preferred
petition seeking writ of Habeas Corpus against the Respondent
No.4 in the District Court at Dallas, County, Texas wherein vide
order dated 12.9.2018 the notice has been issued to the Respondent
No.4 for production of child before the Court at Texas.

Arguments for the Petitioner:

4. Learned Advocate for the petitioner has submitted that it is
absolutely necessary and in the interest of justice that the life,
liberty and welfare of the minor child is to be protected that too
when the court at Texas, having categorically held that the minor
child though generally is allowed to stay with the mother in the
peculiar facts and circumstances of the case, was removed from the
reach of the mother in the interest and benefit of the minor. He
submitted that it probably the Respondent No.4 may run away from
the jurisdiction of this Hon’ble Court and may even flee to
Australia or some other country, where here relatives reside as her
brother resides in Australia. Learned Advocate for the petitioner
further submitted that having lost all the litigations in the USA, the
Respondent No.4 has preferred to run away and come to India and
she seeks shelter before the courts in Gujarat by suppressing the
material facts. He therefore submitted that the custody of the child
with Respondent No.4 is not only illegal but inequitable. The
balance of convenience is in favour of the petitioner. The
petitioner and the minor child will suffer grave, irreparable harm
and injury, if the Respondent No.4 keeps the custody of the minor
child. He therefore submitted that the Respondent No.4 be directed
to produce the child before this court.

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5. Learned Advocate for the petitioner has argued that the petitioner
is a resident of Dallas, Texas USA. Presently he is residing in
Ahmedabad at the address given in the cause-title. That the
Respondent No.4 is residing at Valsad with minor child Mustali
Mahuwala. That the child Mustali Mahuwala was born out of the
wedlock of the Petitioner and Respondent No.4 and at present he
is 4 years old. That the petitioner had filed the divorce proceedings
in the District Court in Dallas, Texas, USA. The Respondent No.4
has contested the said petition. The learned Court at Texas vide
final decree of divorce passed on 12.7.2018 dissolved the marriage
solemnized between the petitioner and Respondent No.4. At that
time the custody of the minor child was granted to the petitioner.
During the pendency of the divorce petition, the Respondent No.4
was permitted by the Petitioner to Travel Australia with minor
child for a limited period of three months. Thereafter she has taken
the minor child to Australia. She has applied overseas citizenship
of India from Australia. Thereafter she shifted to Valsad in India.
That Respondent No.4 has retained the custody by means of illegal
and inequitable act. That the balance of convenience is in favour
of the petitioner. That the petitioner and the minor child will suffer
grave irreparable harm and injury if Respondent No.4 keeps the
custody of the minor child. It is further submitted that it is in the
best interest of the child to have custody. That the petitioner is
earning while Respondent No.4 is a housewife. He requested to
allow the petition and hand over the custody of the minor child to
the petitioner. That the Respondent has filed Application under the
Guardians and Wards Act for appointment of Guardian before the
Valsad Court. She has also filed an application under the Domestic
Violence Act to harass the petitioner.

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Arguments of Respondent No.4:

6. Learned Advocate for Respondent No.4 submitted that Guardian
Petition No.56 of 2018 is presently pending in the learned District
Court at Valsad and that the Complaint under Section 12 of the
Domestic Violence Act too is pending in the court of learned Chief
Judicial Magistrate, Valsad. He submitted that when the Guartian
Petition is pending before the learned District Court at Valsad, the
present petition is wholly misconceived and premature and
deserves to be dismissed. He further submitted that the case in the
court at USA was not decided bipartite but was based on distorted
and twisted facts on the part of the petitioner. He submitted that
due to some disputes and differences between the parties, the same
resulted in matrimonial discord. He further submitted that the lis
deserves to be dealt with and decided by the learned Court, which
has territorial and legal jurisdiction in the matter. That the custody
of the child who is now five years old has to be with mother. He
supported his argument by referring the judgment of the Bombay
High Court in case of Mohmmad Shafi v. Shamin Banoo
reported in AIR 1979 Bombay 156. He submitted that the Hon’ble
Apex Court in catena of judicial pronouncements has held that
such application is entertainable only within the jurisdiction of the
competent court i.e. one within whose territorial jurisdiction the
child whose custody or visitation rights are sought, ordinarily
resides. He submitted that the learned District court at Valsad has
the jurisdiction in the matter as the minor child resides with her
mother at Valsad. Learned Advocate Mr. Trivedi has referred to
and relied upon the following judgments:

(i) Ruchi Majoo v. Sanjeev Majoo – AIR 2011 SC 1952

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(ii) Mrs. Annie Besand v. Narayaniah -AIR 1914 PC 41

(iii) Mst. Jagir Kaur and Anr. v. Jaswant Singh – AIR 1963 SC
1521

6.1 Learned Advocate Mr. Trivedi therefore submitted that in
view of the ratio laid down by the Hon’ble Apex Court the present
petition deserves to be dismissed. He further submitted that the
petitioner has shown ignorance of law and therefore on the said
ground along the present petition deserves to be dismissed with
heavy exemplary compensatory costs. He submitted that the
decree of divorce was obtained fraudulently without making any
maintenance for Respondent No.4 and the minor child.

(A) Illegal Confinement and power of High Court:

7. This court has come across the judgment reported in (2019) 7 SCC
42 in case of Tejaswini Gaud Ors. v. Shekhar Jagdish Prasad
Tewari and Ors. The Hon’ble Apex Court in paragraph 14, 19 and
20 has observed as under:

“14. Writ of habeas corpus is a prerogative process for securing
the liberty of the subject by affording an effective means of
immediate release from an illegal or improper detention. The writ
also extends its influence to restore the custody of a minor to his
guardian when wrongfully deprived of it. The detention of a minor
by a person who is not entitled to his legal custody is treated as
equivalent to illegal detention for the purpose of granting writ,
directing custody of the minor child. For restoration of the custody
of a minor from a person who according to the personal law, is not
his legal or natural guardian, in appropriate cases, the writ court
has jurisdiction.

19. Habeas corpus proceedings is not to justify or examine the
legality of the custody. Habeas corpus proceedings is a medium
through which the custody of the child is addressed to the
discretion of the court. Habeas corpus is a prerogative writ which

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is an extraordinary remedy and the writ is issued where in the
circumstances of the particular case, ordinary remedy provided by
the law is either not available or is ineffective; otherwise a writ
will not be issued. In child custody matters, the power of the High
Court in granting the writ is qualified only in cases where the
detention of a minor by a person who is not entitled to his legal
custody. In view of the pronouncement on the issue in question by
the Supreme Court and the High Courts, in our view, in child
custody matters, the writ of habeas corpus is maintainable where it
is proved that the detention of a minor child by a parent or others
was illegal and without any authority of law.

20. In child custody matters, the ordinary remedy lies only
under the Hindu Minority and Guardianship Act or the Guardians
and Wards Act as the case may be. In cases arising out of the
proceedings under the Guardians and Wards Act, the jurisdiction
of the court is determined by whether the minor ordinarily resides
within the area on which the court exercises such jurisdiction.
There are significant differences between the enquiry under the
Guardians and Wards Act and the exercise of powers by a writ
court which is of summary in nature. What is important is the
welfare of the child. In the writ court, rights are determined only
on the basis of affidavits. Where the court is of the view that a
detailed enquiry is required, the court may decline to exercise the
extraordinary jurisdiction and direct the parties to approach the
civil court. It is only in exceptional cases, the rights of the parties
to the custody of the minor will be determined in exercise of
extraordinary jurisdiction on a petition for habeas corpus.”

8. The detention of minor by a person who is not entitled to his legal

custody is treated as equivalent to illegal detention for purpose of
granting writ. Here, in this case, the mother has the custody of the
child. Whether it can be said to be illegal detention? In our view it
cannot be said to be illegal custody because the mother has a right
to have a custody of his child up to 7 years under Mohmadon Law.
For that purpose, we may refer the judgment of the Bombay High
Court cited by learned Advocate for Respondent reported in AIR
1979 Bombay 156 in case of Mohammad Shafi v. Shamin

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Banoo. Considering the Mohamadan Law, the Bombay High
Court has held that the male child who does not attain the age of 7
years and the female up to the age of puberty, the custody will
remain with the mother. Here in this case, the age of the male
child is below 7 years. Therefore, as per the Mohamadan Law, the
mother is entitled to have the custody of the child and therefore it
cannot be said that the custody of the child with his mother is
illegal or that the child is illegally confined. The Hon’ble Bombay
High Court in paragraphs 23, 24 and 25 has observed as under:

“23. The right of a Mohomedan female in regard to guardianship
of the minors and their custody is to be found dealt with in para.
352 of Mulla’s Mahomedan Law, Eighteenth Edition page 367. As
regards the guardianship. The father under that law is the only
person entitled to be guardian and the mother is not mentioned as
one of the persons entitled to be a guardian of minor’s person or
property. The question of custody, however, is another matter and
the law lays down that the mother is entitled to the custody
(hizanat) of her male child until he has completed the age of seven,
years and of her female child until she has attained puberty. The
right continues though she is divorced by the father of the child
unless she marries a second husband when the right to custody
goes to the putative father. In this case it is not disputed that the
petitioner has not married a second time. It is also the case of the
respondent that he has divorced the petitioner. I have already
given the ages of the minors Waheeda Begum and Mahomed
Raees. It cannot, therefore, be disputed that according to the
personal law applicable to the parties, the petitioner was entitled
to the custody of both the minors.

24. Now this custody to which a Maslim mother is entitled is
even during the coverture and not only subsequently until she
marries a second time. It the mother is not available or she cannot
have the custody then as laid down in para 353, the custody goes
to other female heirs, but does not go to the father and that right of
custody of a female mother is defeated, only as laid down under
para 354. The father’s right to the custody arises only after the
mother and the female relations laid down in paragraph 353 are

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unavailable.

25. It will thus be seen that even during the marriage the custody
of the minor children in case of a boy until he attains the age of 7
years, and in the case of a female until she attains puberty is with
the wife. The intention in conferring this custody upon the mother
is obviously that she could (take) better care for the children than
the father. It is significant that failing the mother also the father is-
not the next preferential custodian, but other female relations. It
seems to me, therefore, quite clear that so far as the personal law
of Muslims is concerned, the right of the father to the custody of
the child is deferred, and the primary right is in the mother and in
the absence of the mother in other female heirs. This can be
explained only on the basis that it is in the interest of the minor
and, that it is these female relations or the mother who are capable
of looking after the minor properly. In other words, therefore, as
long as the right to custody is with the mother, the mother is
deemed to be also having the custody and care of the minor. If that
is so it seems to me that the mother during the period laid down by
the Mahomedan Law has both the custody and the care of the
minor as long as she is not disqualified from retaining the custody
of the minor. If that is so, then at the time when the petitioner left
the respondent’s house either because she was driven away, as she
says, or as the respondent says, she went of her own, she was
deprived of the custody of her minor children Mahomed Races and
Waheeda Begum. Mr. Sohoni, therefore, is not right in contending
that the petitioner neither had the custody nor as he contends, was
a guardian entitled to make an application.”

(B) Grounds of Petition:

9. The petitioner has filed this petition on the ground mentioned in
paragraph 17 as under:

“The Petitioner therefore states that the custody of the child with
the Respondent No.4 is not only illegal but inequitable. The
balance of convenience is in favour of the Petitioner herein. The
Petitioner and the minor child will suffer grave, irreparable harm
and injury, if the Respondent No.4 keeps custody of the minor
child, This being the position, interim and ad-interim reliefs in
terms aforesaid may be granted in favour of the Petitioner.”

9.1 Considering this ground, the petitioner has only stated that

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the custody of the child is illegal and inequitable and the balance of
convenience is in his favour. These two grounds relates to his
status or his right. It does not disclose any welfare of the child.

9.2 The third ground as regards to the fact that the minor child
will suffer grave and irreparable loss, harm and injury, but nothing
is stated that as to how irreparable loss harm and injury will cause
to the child. Therefore the ground shown in the memo of petition
is not sufficient to restore the custody of the child.

(C) Alternative Remedy:

10.The petitioner has stated in paragraph 11 that of the memo of
petition that he has preferred petition for writ of habeas corpus
against Respondent No.4 in the District Court at Dallas, County
Texas. The petitioner has also stated that vide order dated
12.9.2018 the District Court at Dallas, County Texas has issued a
notice to Respondent No.4 to produce the child before that court.
The notice is produced at Annexure-F in the present case. The
present petitioner has stated in paragraph 20 and 21 of the memo of
petition as under:

“20. The Petitioner submits that he has no other adequate,
alternative or equally efficacious remedy available to him and that
the reliefs prayed for herein, if granted, will be complete.

21. The Petitioner has not filed any other Petition on the subject
matter of this Petition, either in this Hon’ble Court Court or in the
Hon’ble Supreme Court of India.”

11.The Petitioner has filed a writ of habeas corpus in foreign court
which is pending in that court. In spite of this the petitioner has

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filed the present petition for the same cause of action. We are
therefore of the view that the petition is not tenable in the eye of
law as the petitioner has got an alternative efficacious remedy. It is
pertinent to note here that as per paragraph 12 of the memo of
petition, Respondent No.4 has also filed application under the
Guardian and Wards Act for appointment of Guardian before the
Valsad District Court and in the said application, notice is served to
the present petitioner. In this case custody of child with the mother
is presumed to be legal custody. The party may take appropriate
civil remedy instead of availing writ jurisdiction. Because in civil
court they may lead evidence about their right as well as welfare of
the child.

(D) Direction of Foreign Court and Child Custody:

12.The Hon’ble Supreme Court in a judgment reported in (2017) 8
SCC 454 (Three Judge Batch) in case of Nithya Anand
Raghavan v. State (NCT of Delhi) and anr. has observed in
paragraph 40, 41, 42, 45, 46, 47, 48, 66 and 69 as under:

“40. The Court has noted that India is not yet a signatory to the
Hague Convention of 1980 on “Civil Aspects of International
Child Abduction”. As regards the non-convention countries, the
law is that the Court in the country to which the child has been
removed must consider the question on merits bearing the welfare
of the child as of paramount importance and reckon the order of
the foreign Court as only a factor to be taken into consideration,
unless the Court thinks it fit to exercise summary jurisdiction in the
interests of the child and its prompt return is for its welfare. In
exercise of summary jurisdiction, the Court must be satisfied and
of the opinion that the proceeding instituted before it was in close
proximity and filed promptly after the child was removed from
his/her native state and brought within its territorial jurisdiction,
the child has not gained roots here and further that it will be in the
child’s welfare to return to his native state because of the

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difference in language spoken or social customs and contacts to
which he/she has been accustomed or such other tangible reasons.
In such a case the Court need not resort to an elaborate inquiry
into the merits of the paramount welfare of the child but leave that
inquiry to the foreign Court by directing return of the child. Be it
noted that in exceptional cases the Court can still refuse to issue
direction to return the child to the native state and more
particularly inspite of a pre-existing order of the foreign Court in
that behalf, if it is satisfied that the child’s return may expose him
to a grave risk of harm. This means that the Courts in India, within
whose jurisdiction the minor has been brought must “ordinarily”
consider the question on merits, bearing in mind the welfare of the
child as of paramount importance whilst reckoning the pre-
existing order of the foreign Court if any as only one of the factors
and not get fixated therewith. In either situation – be it a summary
inquiry or an elaborate inquiry – the welfare of the child is of
paramount consideration. Thus, while examining the issue the
Courts in India are free to decline the relief of return of the child
brought within its jurisdiction, if it is satisfied that the child is now
settled in its new environment or if it would expose the child to
physical or psychological harm or otherwise place the child in an
intolerable position or if the child is quite mature and objects to its
return. We are in respectful agreement with the aforementioned
exposition.

41. Notably, the aforementioned exposition has been quoted
with approval by a three-judge bench of this Court in Dr. V. Ravi
Chandran (supra) as can be discerned from paragraph 27 of the
reported decision. In that, after extracting paragraphs 28 to 30 of
the decision in Dhanwanti Joshi’s case, the three-judge bench
observed thus:

“27……..However, in view of the fact that the child had
lived with his mother in India for nearly twelve years,
this Court held that it would not exercise a summary
jurisdiction to return the child to the United States of
America on the ground that its removal from USA in
1984 was contrary to the orders of US courts. It was
also held that whenever a question arises before a court
pertaining to the custody of a minor child, the matter is
to be decided not on considerations of the legal rights
of the parties but on the sole and predominant criterion

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of what would best serve the interest of the minor.”
(emphasis supplied) Again in paragraphs 29 and 30,
the three-judge bench observed thus:-

29. While dealing with a case of custody of a child
removed by a parent from one country to another in
contravention of the orders of the court where the
parties had set up their matrimonial home, the court in
the country to which the child has been removed must
first consider the question whether the court could
conduct an elaborate enquiry on the question of
custody or by dealing with the matter summarily order
a parent to return custody of the child to the country
from which the child was removed and all aspects
relating to the child’s welfare be investigated in a court
in his own country. Should the court take a view that an
elaborate enquiry is necessary, obviously the court is
bound to consider the welfare and happiness of the
child as the paramount consideration and go into all
relevant aspects of welfare of the child including
stability and security, loving and understanding care
and guidance and full development of the child’s
character, personality and talents. While doing so, the
order of a foreign court as to his custody may be given
due weight; the weight and persuasive effect of a
foreign judgment must depend on the circumstances of
each case.

30. However, in a case where the court decides to
exercise its jurisdiction summarily to return the child to
his own country, keeping in view the jurisdiction of the
court in the native country which has the closest
concern and the most intimate contact with the issues
arising in the case, the court may leave the aspects
relating to the welfare of the child to be investigated by
the court in his own native country as that could be in
the best interests of the child. The indication given in
Mckee v. McKee that there may be cases in which it is
proper for a court in one jurisdiction to make an order
directing that a child be returned to a foreign
jurisdiction without investigating the merits of the
dispute relating to the care of the child on the ground
that such an order is in the best interests of the child

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has been explained in L (Minors), In re and the said
view has been approved by this Court in Dhanwanti
Joshi. Similar view taken by the Court of Appeal in H.
(Infants), in re has been approved by this Court in
Elizabeth Dinshaw.” (emphasis supplied).

42. The consistent view of this court is that if the child has been
brought within India, the Courts in India may conduct (a)
summary inquiry or (b) an elaborate inquiry on the question of
custody. In the case of a summary inquiry, the Court may deem it
fit to order return of the child to the country from where he/she
was removed unless such return is shown to be harmful to the
child. In other words, even in the matter of a summary inquiry, it is
open to the Court to decline the relief of return of the child to the
country from where he/she was removed irrespective of a pre-
existing order of return of the child by a foreign Court. In an
elaborate inquiry, the Court is obliged to examine the merits as to
where the paramount interests and welfare of the child lay and
reckon the fact of a pre-existing order of the foreign Court for
return of the child as only one of the circumstances. In either case,
the crucial question to be considered by the Court (in the country
to which the child is removed) is to answer the issue according to
the child’s welfare. That has to be done bearing in mind the
totality of facts and circumstances of each case independently.
Even on close scrutiny of the several decisions pressed before us,
we do not find any contra view in this behalf. To put it differently,
the principle of comity of courts cannot be given primacy or more
weightage for deciding the matter of custody or for return of the
child to the native state.

45. In a petition for issuance of a writ of habeas corpus in
relation to the custody of a minor child, this Court in Sayed
Saleemuddin v. Dr. Rukhsana Ors. has held that the principal
duty of the Court is to ascertain whether the custody of child is
unlawful or illegal and whether the welfare of the child requires
that his present custody should be changed and the child be
handed over to the care and custody of any other person. While
doing so, the paramount consideration must be about the welfare
of the child. In the case of Mrs. Elizabeth (supra), it is held that in
such cases the matter must be decided not by reference to the legal
rights of the parties but on the sole and predominant criterion of
what would best serve the interests and welfare of the minor. The
role of the High Court in examining the cases of custody of a

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minor is on the touchstone of principle of parens patriae
jurisdiction, as the minor is within the jurisdiction of the Court
(see Paul Mohinder Gahun Vs. State of NCT of Delhi 15 (2001)
relied upon by the appellant). It is not necessary to multiply the
authorities on this proposition.

46. The High Court while dealing with the petition for issuance
of a writ of habeas corpus concerning a minor child, in a given
case, may direct return of the child or decline to change the
custody of the child keeping in mind all the attending facts and
circumstances including the settled legal position referred to
above. Once again, we may hasten to add that the decision of the
Court, in each case, must depend on the totality of the facts and
circumstances of the case brought before it whilst considering the
welfare of the child which is of paramount consideration. The
order of the foreign Court must yield to the welfare of the child.
Further, the remedy of writ of habeas corpus cannot be used for
mere enforcement of the directions given by the foreign court
against a person within its jurisdiction and convert that
jurisdiction into that of an executing court. Indubitably, the writ
petitioner can take recourse to such other remedy as may be
permissible in law for enforcement of the order passed by the
foreign Court or to resort to any other proceedings as may be
permissible in law before the Indian Court for the custody of the
child, if so advised.

47. In a habeas corpus petition as aforesaid, the High Court
must examine at the threshold whether the minor is in lawful or
unlawful custody of another person (private respondent named in
the writ petition). For considering that issue, in a case such as the
present one, it is enough to note that the private respondent was
none other than the natural guardian of the minor being her
biological mother. Once that fact is ascertained, it can be
presumed that the custody of the minor with his/her mother is
lawful. In such a case, only in exceptionable situation, the custody
of the minor (girl child) may be ordered to be taken away from her
mother for being given to any other person including the husband
(father of the child), in exercise of writ jurisdiction. Instead, the
other parent can be asked to resort to a substantive prescribed
remedy for getting custody of the child.

48. The next question to be considered by the High Court would

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be whether an order passed by the foreign court, directing the
mother to produce the child before it, would render the custody of
the minor unlawful? Indubitably, merely because such an order is
passed by the foreign court, the custody of the minor would not
become unlawful per se.

66. The invocation of first strike principle as a decisive factor,
in our opinion, would undermine and whittle down the wholesome
principle of the duty of the Court having jurisdiction to consider
the best interests and welfare of the child, which is of paramount
importance. If the Court is convinced in that regard, the fact that
there is already an order passed by a foreign Court in existence
may not be so significant as it must yield to the welfare of the
child. That is only one of the factors to be taken into consideration.
The interests and welfare of the child are of paramount
consideration. The principle of comity of courts as observed in
Dhanwanti Joshi’s case (supra), in relation to non-convention
countries is that the Court in the country to which the child is
removed will consider the question on merits bearing the welfare
of the child as of paramount importance and consider the order of
the foreign Court as only a factor to be taken into consideration.
While considering that aspect, the Court may reckon the fact that
the child was abducted from his or her country of habitual
residence but the Court’s overriding consideration must be the
child’s welfare.

69. We once again reiterate that the exposition in the case of
Dhanwanti Joshi (supra) is a good law and has been quoted with
approval by a three-judge bench of this Court in V. Ravi Chandran
(supra). We approve the view taken in Dhanwanti Joshi (supra),
inter alia in paragraph 33 that so far as non-convention countries
are concerned, the law is that the Court in the country to which the
child is removed while considering the question must bear in mind
the welfare of the child as of paramount importance and consider
the order of the foreign Court as only a factor to be taken into
consideration. The summary jurisdiction to return the child be
exercised in cases where the child had been removed from its
native land and removed to another country where, may be, his
native language is not spoken, or the child gets divorced from the
social customs and contacts to which he has been accustomed, or
if its education in his native land is interrupted and the child is
being subjected to a foreign system of education, – for these are all

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acts which could psychologically disturb the child. Again the
summary jurisdiction be exercised only if the court to which the
child has been removed is moved promptly and quickly. The
overriding consideration must be the interests and welfare of the
child.”

13.Considering the factual aspects as well as legal aspects, ratio laid
down in above referred judgments, arguments advanced by learned
Advocates for the parties, the following facts emerge:

(a) As per para 8 of the petition the child is removed from the
custody since 8.7.2017. The present petition is filed on 11.12.2018
i.e. after 1 year and 5 months. It cannot be said that petition is filed
promptly and quickly after the child is removed from the custody.

(b) It is stated in para 1 of the affidavit – in – reply that,”the
petitioner has had relations with a lady by the name of Zainab
Ezzi in U.S.A. She used to visit the matrimonial home of the
parties in U.S.A. And instigated the petitioner Murtuza Mahuwala
to beat me and minor son Mustali. The same resulted in
matrimonial discord.”

Again this, the petitioner has stated in affidavit in rejoinder that,
“Respondent No.4, she has narrated that all disputes started
between them due to a person named Zainab Ezzi. By raising this
kind of extraneous issues, the Respondent No.4 is trying to divert
the attention of the Hon’ble Court from the real issue of custody of
minor child.”

It appears that petitioner has not specifically denied the fact that

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she and minor son Mustali were beaten due to instigation of one
Zainab Ezzi.

Now taking into this situation we are satisfied that the child’s
return may expose him to a grave risk of harm. Therefore it will be
appropriate to refuse to issue the direction to return the child to
native state and more particularly inspite of a preexisting order of
the Foreign court.

(c) Considering the above episode we see the paramount
consideration i.e. welfare of child Mustali is with the
mother and not to change the custody by handing over
custody to petitioner.

(d) Considering the time laps from removing the child from the
custody of petitioner, the child is now settled in its new
environment. It will harm to its physical and
psychological harm or it will be an intolerable position to
child.

(e) The petitioner has filed writ of habeas corpus in the foreign
court which is pending for consideration.

(f) The custody of child with mother cannot be said to be illegal
confinement or illegal custody.

(g) The petitioner has not shown any circumstance which can
harm the custody of child with mother.

(h) The petitioner has not shown any of the circumstance which
is in his favour and which provide welfare of the child.

(i) In view of Mohamdan law i.e. personal law, the custody of
male child below 7 years of age be given to mother. So
mother is entitled to hold the custody of the child.

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Considering the above discussions, we are of the view that the
petition fails and deserves to be dismissed and accordingly stands
dismissed. Notice is discharged. We have considered present
situation and decided this Special Criminal Application. We made
it clear that parties are at liberty to lead evidence before the
appropriate court in pending proceeding under law.

(S.R.BRAHMBHATT, J)

(V. P. PATEL,J)
J.N. W

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