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'Right Of Every Party': Gujarat High Court Permits Indian-American Mother To Withdraw Habeas Corpus Plea Seeking Daughters' Custody

20 May 2022 8:15 AM GMT
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The Gujarat High Court recently permitted an American Citizen of Indian origin, who had moved a habeas corpus petition seeking custody of her daughters from her husband, to withdraw the plea while observing that every party has a "right" to withdraw the proceedings.

It however hoped, that since the matter involved two minor children, the parties will act in their best interest.

"While permitting withdrawal, which is the right of every party, this Court is of the opinion that to both the parties need to act in the best interest of their children and it is therefore desirable for them to attempt an amicable settlement," Justice Sonia Gokani and Justice Mauna Bhatt observed.

The petition was filed by the mother who was aggrieved by the alleged contravention of the order passed by the Superior Court of New Jersey which granted in-person parenting time to the Petitioner from 30th January 2022 to 27th February 2022. Accordingly, the Petitioner also sought a writ of mandamus directing the Respondents No. 1-3 to hand over the custody of Respondents 3.1 and 3.2 (the daughters) in the interest of justice.

The Bench while noting that arrangements had been made for the weekend for the mother to meet the children, expressed the desire that the parties venture forth into an amicable settlement of their disputes for the welfare of the children. However, the mediation conducted between the parties yielded no results.

Thereafter, the Respondent alleged that the Petitioner is not cooperating in the process of getting the Overseas Citizenship of India Card and this may become the reason for the process of issuance of OCI Card not to sail through smoothly.

Keeping in view all these issues, the Bench had scheduled the matter for final hearing but the Petitioner sought withdrawal of the petition and wanted to take recourse to legal proceedings in the United States. This was strongly objected to by the Respondent party by alleging that this was done to derail the process of the OCI card and to ensure that the children do not remain in India.

The Bench however observed that the custody of both the daughter by way of a temporary restrain was denied by the Superior Court of New Jersey, Chancery Division, Middlesex County on 06.10.2021. Even as the Petitioner withdrew the habeas corpus plea, the Bench emphasised that the parties settle the dispute amicably in the best interest of the child.

Accordingly, it was directed that the Family Court expedite the proceedings considering the age of the children while the parties would be at liberty to request and inform the concerned authorities issuing the OCI card of the pendency of the litigation between them. The Petitioner was ordered to cooperate in the process of the issuance of OCI card.

Case Title: Vaishali Nishit Patel vs State Of GujaratVaishali Nishit Patel vs State Of Gujara

Citation: 2022 LiveLaw (Guj) 173

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