This particular decision is upheld by the High Court of Gujarat through the Division Bench JUSTICE VIPUL M. PANCHOLI AND JUSTICE RAJENDRA M. SAREEN in the case of Sabirbhai Gafarbhai Multani v. State of Gujarat (R/Special Criminal Application No. 5010 of 2022).
The instant petition was filed by the father under Article 226 of the Constitution of India praying for custody of the minor. Respondent 4&5 were maternal grandparents and the marriage of the petitioner was solemnized in the year 2011 and out of the said wedlock, the minor corpus was born in the year 2013 and due to matrimonial dispute, wife left her matrimonial home and went to her parental home in 2015. After conciliation efforts wife had returned to her matrimonial home, however, thereafter also disputes had arisen between the husband and wife and his wife again left her matrimonial home in the year 2016 along with the minor son – corpus and started residing with her parents. Petitioner made many efforts to get custody of the minor son but in vain. In 2020, wife of the petitioner expired due to COVID.
Petitioner remarried even during the subsistence of his first marriage and out of the said second marriage, he had two children. Wife of the petitioner was residing since 2016 at her parental home and at that time the minor was aged 3 and a half years and since then the minor is with the Respondent 4 and 5 (‘Maternal grand-parents’). Thus, the instant petition was filed as last resort for custody of the minor son.
The Court inquired from the minor about his status and his daily routine. He has stated that his maternal grand-parents are taking his care and he is getting love and affection from them and he has no complain against them. He has happily stated that he is happy with his maternal grand-parents. The Court also ascertained the wish of the minor that he wanted to go and reside with his maternal grand-parents.
The Court while dismissing the petition ordered that the custody of the minor be continued with the respondent 4 and 5. Considering the overall facts of the case, the Court was of the view that, custody of the minor cannot be handed over to the petitioner herein who has remarried and has two children. It was made clear that in any way, the custody of the minor with the maternal grand-parents cannot be said to be illegal custody and it cannot be said that the minor is in illegal confinement.
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Judgement reviewed by – Arvind Roshan