Minor's Custody With Maternal Grandparents Not Illegal Confinement Especially When Husband Remarried During Subsistence Of First Marriage: Gujarat HC

This petition was filed under Article 226 of the Constitution of India praying to direct the police authority to produce the corpus (Samir, a minor aged 9 years) and handover his custody to the petitioner (the father). The respondent in this case are maternal grandparents of the corpus.

Briefly, the facts of the case are that the petitioner's marriage was solemnized in 2011. Out of this wedlock, the corpus was born in 2013. Due to a matrimonial dispute, petitioner's wife left her matrimonial home and went to her parental home in 2015. After some attempts of conciliation, she returned to her matrimonial home, left again with the corpus in 2016 due to disputes and started residing with her parents.

The petitioner had filed an application under Section 97 CrPC which was disposed of. He could not get the custody of the minor son. Thus, since the minor was aged 3 years he has been living with his maternal grandparents.

Meanwhile, the petitioner had remarried even during the subsistence of his first marriage and out of the said second marriage, he has two children. In 2020, wife of the petitioner and mother of the corpus passed away due to Covid.

After various failed attempts to get the custody of the corpus, the present petition was preferred by the petitioner being a father for getting custody of his minor son. According to the petitioner, his minor son requires love and affection of his father and hence he should have custody over the corpus.

When the matter was being heard, the corpus, Samir along with his maternal grandparents was present. The court inquired from the corpus about his status and his daily routine. He did not know the name of the petitioner – his father. Instead, he referred to his maternal grandparents as "Mummy and Pappa". He stated that his maternal grandparents were taking care of him, he was getting love and affection from them and he had no complaint against them.

The court also ascertained the wish of the minor corpus who specifically stated that he wanted to reside with the his maternal grandparents.

The court took special notice of the fact that the corpus wanted to live with his maternal grandparents, and the petitioner had remarried and had two children. Further, since the corpus had been residing with his maternal grandparents for over 6 years, the court held that the custody of the minor corpus was to be continued with his maternal grandparents. On the issue of whether the corpus was in illegal confinement, the court opined that–

"Considering the overall facts, custody of the minor cannot be handed over to the petitioner herein who has remarried and has two children. In any way, the custody of the corpus with the respondent Nos.4 and 5 – maternal grand-parents cannot be said to be illegal custody and it cannot be said that the corpus is in illegal confinement."

Hence, the court held that no interference was warranted and the petition was dismissed.

Case Title : SABIRBHAI GAFARBHAI MULTANI Versus STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 210

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