Special Criminal Application (Habeas Corpus) No. 3006 of 2014

R/SCR.
A/3006/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 3006 of 2014
================================================================
JAHNVI VISHAL KONDHIA....Applicant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
================================================================
Appearance:
MR MIHIR THAKORE SENIOR ADVOCATE WITH MR SALIL M THAKORE,
ADVOCATE for the Applicant(s) No. 1
MR MIHIR JOSHI SENIOR ADVOCATE WITH P P MAJMUDAR, ADVOCATE
for the Respondent(s) No. 2 - 3
MR JK SHAH APP for the Respondent(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE

and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 03/09/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
This petition is filed under Article 226 of
the Constitution of India by the petitioner, a mother
having permanent residence at 604/A, Ullas Basti
Gardens Dutt Mandir, Mahavir Nagar, Kandivali [W],
Mumbai400 064 and presently residing at 103/B, Anand
Villa Apartments, Opp. Dwarkesh Temple, Vasna Road,
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R/SCR.A/3006/2014 ORDER
Vadodara, with the following prayers:
“[A] That the Hon'ble Court be pleased to
issue a writ of or in the nature of habeas
corpus or any other appropriate writ, order or
direction commanding Respondent No.2 to
produce Respondent No.3 Minor Lakshya Kondhia
before this Hon'ble Court forthwith and pass
appropriate order directing that the custody
of Respondent No.3 be handed over to the
petitioner in the interest of justice and
considering the welfare of the child;
[B] That pending admission hearing and

final disposal of this petition, this Hon'ble
Court be pleased to direct Respondent No.2 to
produce Respondent No.3 Minor Lakshya Kondhia
before this Hon'ble Court.”
2 It is the case of the petitioner that she is
the mother of minor son 'Lakshya' – respondent No.3
and wife of respondent No.2, who illegally and in
breach of the statement made on oath before the Family
Court, Vadodara, taken away the minor son – respondent
No.3, who was studying in Navrachna International
School, Vadodara to United Arab Emirates [UAE] without
informing the petitioner and the school authority.
Page 2 of 18

3 Certain facts, which took place prior to the
incident in question, are as under:
3.1 The petitioner got married to respondent
No.2 on 20.05.1999 under the Special Marriage Act,
1954, which was also followed by marriage as per the
Hindu rites. Out of the wedlock, two children were
born viz. Yashasvi, aged 14 years and Lakshya, aged 11
years – respondent No.3 herein. It is further the
case of the petitioner that in view of erratic
behaviour and unhealthy lifestyle of respondent No.2,
who had several addictions and vices and due to the
same the petitioner used to live in a state of fear
and anxiety, and finally it was decided by the
petitioner and respondent No.2 jointly in the year
2011 to bring their children to India for better
education and accordingly they were enrolled in
Navrachna International School, Vadodara.
3.2 The petitioner has filed application under
Section 7 of the Guardians & Wards Act, 1890 read with
Section 151 of the Civil Procedure Code for
appointment of Guardian of Minors “Lakshya Vishal
Page 3 of 18

Kondhia and Yashasvi Vishal Kondhia” being C.M.A.
No.56 of 2012 before the Family Court at Vadodara. The
petitioner has also filed Interim application under
Section 12 of the Guardians & Wards Act read with
Order 39 Rule 1 & 2 along with Section 151 of the
Civil Procedure Code for granting temporary custody of
Minor children “Yashasvi & Lakshya” being C.M.A. No.56
of 2012. The petitioner has also filed a petition
under Section 27(1)(d) and Sections 36 and 37 of the
Special Marriage Act, 1954 being M.J.Petition No.A
1927 of 2013 in the Family Court at Bandra Mumbai for
dissolution of marriage, permanent alimony, etc. In
the proceedings under Section 12 of Guardians and
Wards Act, 1890 [for short, `the Act, 1890'] for
seeking temporary custody of minors in the Court of
Vadodara, the respondent No.2 herein and opponent No.2
therein has filed detailed reply opposing various
contentions and pleadings, but a statement was made
before the Family Court by the respondent No.2 that he
had no intention to move the minors from jurisdiction
of Vadodara court.
3.3 In the meanwhile, as per the affidavit dated
Page 4 of 18

15.06.2014 filed by respondent No.2 through his
advocate, which is a document in Arabic language
purported to be order dated 29.08.2013 passed by the
Dubai Court of First Instance along with translation
which turned out to be a decree of divorce granted in
favour of respondent No.2 in Case No.151/2012 Non
Muslim Personal Affairs. It is the case of the
petitioner that the above decree has no force in law
and otherwise also it was obtained by fraud. It is
also the case of the petitioner that no notice was
served upon the petitioner nor she was given any
opportunity of hearing and the respondent No.2 –
husband has made certain false statements before the
Court at Dubai and according to the petitioner, such
foreign decree is not binding to the courts in India.
3.4 The present petition is filed for the
incident dated 09.04.2014, where both the parties
remained present before the Family Court at Vadodara
and it was understood between the parties that the
petitioner would stay at Vadodara along with both the
minor children as the minor children were not feeling
comfortable in the hostel and the minor children would
Page 5 of 18

start going to school during the day time and shift to
residential premises in Vadodara. The respondent No.2
told the petitioner that presence of minor Lakshya
would be needed at UAE for few days for the purpose of
renewal of Dubai residential visa and since the summer
vacation starts on or around 07.05.2014, the
respondent No.2 would take Lakshya to UAE and bring
him back upon opening of the school or even earlier.
On Friday, 25th April, 2014, respondent No.2 took
minor Lakshya for weekend from his boarding school and
taken for only for weekend, and therefore, minor
Lakshya is not brought back to his school at Vadodara
in spite of the best efforts made by the petitioner.
Further, from the communication which took place
between the petitioner and minor Lakshya, the
translation of the said communication was produced on
record along with additional affidavit filed by the
petitioner reveal that the minor Lakshya is willing to
join his mother. Thus, the respondent No.2 has
committed illegal act and respondent No.3 is illegally
confined and detained against his wish at UAE / Dubai
for which prayer is made to issue writ of habeas
corpus in exercise of powers under Article 226 of the
Page 6 of 18

Constitution of India.
4 Mr. Mihir Thakore, learned Senior Advocate
appearing with Shri Salil Thakore, learned advocate
for the petitioner would contend that action of
respondent No.2 in taking away minor Lakshya –
respondent No.3 herein is illegal and when the minor
is detained against his wish, the writ of habeas
corpus in exercise of jurisdiction of this Court under
Article 226 of the Constitution of India is
maintainable and accordingly the corpus can be
produced before this Court and prayers made in para 23
of this petition be accepted by this Court and
respondent No.2 and authorities be directed to
produced the corpus by following the procedure.
Learned Senior Advocate would contend that under the
guise of undertaking visa formalities of minor
Lakshya, the respondent No.2 has not only committed
breach of his assurance given before the courts in
custody proceedings at Vadodara, but also deceived the
school authorities whereby it was stated that the
minor would be returned to school within few days and
only on such assurance the school authorities issued
gate pass and permitted the minor to move out of the
Page 7 of 18

school campus. It is further submitted that the
petitioner is at present staying at Vadodara with her
daughter and jurisdiction of this Court is invoked
accordingly and otherwise also the minor was admitted
in Navrachna International School at Vadodara and was
taken away illegally by respondent No.2, and
therefore, cause of action has arisen within the
jurisdiction of this Court and writ of habeas corpus
be issued accordingly.
4.1 Learned Senior Advocate appearing for the
petitioner further submits that obtaining decree of
divorce and custody from the court at Dubai is nothing
but a fraud perpetuated upon the petitioner and minors
and it has no force in law and is not binding on the
courts in India inasmuch as such proceedings are
oppose to natural justice and the petitioner was not
subjected to any notice or explanation in the form of
defence. In spite of the proceedings pending at
Family Court at Vadodara, initially, no disclosure was
made about the decree of divorce and custody passed by
Dubai Court and the action of respondent No.2 is not
only against settled principles of law, but to deprive
Page 8 of 18

the petitioner of love and affection of her minor son,
who is ready and willing to join mother. It is,
therefore submitted that this court would secure
presence of corpus by issuing writ of habeas corpus
and appropriate direction to respondents. Learned
Senior Advocate appearing for the petitioner has
placed reliance on the following decisions:
i] (1991)3 SCC 451 in the case of Y.Narsimha Rao &
Ors. v Y. Venkata Lakshmi & Anr.
ii] (2001)5 SCC 247 in the case of Syed Saleemuddin
vs. Dr. Rukhsana & Ors.
iii] (2003)8 SCC 342 in the case of Union of India v.
Paul Manickam & Anr.
iv] (2005)5 SCC 359 in the case of Rajesh K. Gupta
vs. Ram Gopal Agarwala & Ors.
v] AIR 2008 SC 1705 in the case of State of

Maharashtra & Ors. v. Bhaurao Punjabrao Gawande.
Vi] (2011)6 SCC 479 in the case of Ruchi Majoo v.
Sanjeev Majoo.
It is further submitted that keeping in mind
the facts, law and decisions of the Apex Court,
Page 9 of 18

prayers be granted as prayed for in para 23 of this
petition by issuing writ of habeas corpus.
4.2 Learned Senior Advocate for the petitioner
would however submit that if the court is not inclined
to proceed further on the ground that proceedings are
pending under the Act, 1890, as per the decision of
the Apex Court, no observations be made on the merits
of the case.
5. Shri Mihir Joshi, learned Senior Advocate
appearing with Shri Panthil Majmudar, leaned advocate
for the respondent No.2, at the outset, would contend
that the petitioner has suppressed various facts and
has taken over custody of their daughter from the
School hostel unlawfully and since the respondent No.2
is father and natural guardian, no writ of habeas
corpus can be issued against father and present
proceedings are nothing but a sheer abuse of process
of law and malafide attempt on the part of the
petitioner to harass the respondent No.2. It is
further submitted that certain averments about nature
and conduct of respondent No.2 in this petition are
misconceived and have no basis and keeping in mind the
Page 10 of 18

welfare of the children, a conscious decision is taken
by the father to provide all facilities including the
best education at UAE. It is further submitted that a
legal and valid decree is obtained from Dubai Court of
First Instance at Dubai and for which due procedure
was followed and the petitioner was aware about such
proceedings. Learned Senior Advocate for the
respondent No.2 placed reliance on Section 44A of the
Code of Civil Procedure, 1908 about execution of
decrees passed by courts in reciprocating territory
along with Section 47 and explanation contained
therein. It is further submitted that all expenses
relating to both their children are born by respondent
No.2 – father and custody of the children was never
with the petitioner and minor Lakshya was taken for
visa proceedings and is happily stays with respondent
No.2. It is further submitted that even if welfare of
the minor is paramount importance, it cannot be said
that minor Lakshya is in any manner deprived of the
same. However, learned Senior Advocate for the
respondent No.2 would contend that proceedings under
Act, 1890 are pending before Vadodara Court and on the
basis the present proceedings are initiated by the
Page 11 of 18

petitioner. However, the petitioner is having
permanent residence at Mumbai, as shown in the cause
title and filed petition for divorce under the Special
Marriage Act, and therefore, this court would not
exercise jurisdiction under Article 226 of the
Constitution of India and issue writ of habeas corpus,
as prayed for by the petitioner.
6. Having heard learned counsels for the parties and
on perusal of the record of the case and relevant
material, it is not in dispute that respondent No.2 is
father and natural guardian of minor respondent No.3 –
Lakshya and at the relevant point of time as per oral
understanding between the petitioner and respondent
No.2 children were admitted in Navrachna International
School, Vadodara and since they were not comfortable
in the hostel, they were to be provided residential
accommodation. That legality and validity of a decree
/ order of Dubai Court of First Instance – NonMuslim
Personal Affairs granting divorce to the petitioner
from the respondent No.2 by irrevocable divorce and
confirming the custody of children, at present is not
under challenge by the petitioner. That legal
Page 12 of 18

implications and binding nature of such decree / order
of the foreign court in the context of Sections 13 and
14, 44A and 46 of the Code of Civil Procedure, 1908
can be considered by appropriate court as and when
such eventuality arise but at the outset we cannot
ipso facto ignore such decree in exercise of
jurisdiction under Article 226 of the Constitution of
India where a prayer is made for seeking corpus of the
minor. We are not inclined to dwell deep into the
discussion of law and on facts, more particularly,
when the proceedings undertaken by the parties under
Sections 7 and 12 of the Act, 1890 are pending before
the Family Court at Vadodara, in which even interim
application is also filed for seeking custody of the
minors. The contention of learned Senior Advocate for
the petitioner that proceedings of habeas corpus
before this court and of custody before the Family
Court at Vadodara are different and the petition for
habeas corpus is maintainable and writ of habeas
corpus can be issued in spite of pendency of such
proceedings, we are of the view that minor Lakshya,
aged about 11 years is with his father and natural
guardian and at this stage it would not be proper to
Page 13 of 18

restrain respondent father and son from staying
together, on merits, as we are of the view that the
very issue can be gone into by the Family Court at
Vadodara where proceedings are pending under Sections
7 and 12 of the Act, 1890 where similar prayer is made
and the Family Court will be competent and proper
court to undertake overall exercise based on evidence
that may be led by the parties.
7. So far as the decisions relied on by the
learned Senior Advocate for the petitioner on powers
of a writ court and nature of habeas corpus are
concerned, we are in respectful agreement with law
laid down therein.
8. In case of Ruchi Majoo [supra] in which a
child of NRI parents was born in USA and the wife
taken husband alleged addiction to pornography and
adulterative behaviour took a decision to educate
children in Delhi and the husband consented to it, but
later on the husband filed a case of abduction of
minor child against the wife in USA and Interpol Red
corner Notice was issued against the wife. However,
Page 14 of 18

the wife has already undertaken proceedings under
Sections 7, 8, 10 and 11 of the Act, 1980 for grant of
interim custody of minor to her and in a writ petition
filed by husband against the impugned order, the Delhi
High Court set aside the order of the District Court
and dismissed the custody case. In the circumstances,
as above certain questions came to be answered with
the background of conflict of laws and jurisdiction in
the realm of private international law, provisions of
the Act, 1890 and exercise of powers under Article 227
of the Constitution of India. The Apex Court in para
62 of the above judgment held, as under:
“62. It does not require much persuasion for
us to hold that the issue whether the Court
should hold a summary or a detailed enquiry would
arise only if the Court finds that it has the
jurisdiction to entertain the matter. If the
answer to the question touching jurisdiction is
in the negative the logical result has to be an
order of dismissal of the proceedings or return
of the application for presentation before the
Court competent to entertain the same. A Court
that has no jurisdiction to entertain a petition
for custody cannot pass any order or issue any
direction for the return of the child to the
country from where he has been removed, no matter
Page 15 of 18

such removal is found to be in violation of an
order issued by a Court in that country. The
party aggrieved of such removal, may seek any
other remedy legally open to it. But no redress
to such a party will be permissible before the
Court who finds that it has no jurisdiction to
entertain the proceedings.
63. We have while dealing with question No.1

above held that the Court at Delhi was in the
facts and circumstances of the case competent to
entertain the application filed by the appellant.
What needs to be examined is whether the High
Court was right in relying upon the principle of
comity of courts and dismissing the application.
Our answer is in the negative. The reasons are
not far to seek. The first and foremost of them
being that `comity of courts' principle ensures
that foreign judgments and orders are
unconditionally conclusive of the matter in
controversy. This is all the more so where the
courts in this country deal with matters
concerning the interest and welfare of minors
including their custody. Interest and welfare of

the minor being paramount, a
competent
court
in

this country is entitled and indeed duty bound to

examine the matter independently,
taking the

foreign judgment, if any, only as an input for
its final adjudication. Decisions of this Court
in Dhanwanti Joshi, and Sarita Sharma's cases,
(supra) clearly support that proposition”.
Page 16 of 18

Thus, in the facts of this case also, it is
not in dispute that proceedings undertaken by the
parties under the Act, 1890 are pending before the
competent court to consider the very subject of this
petition, and therefore, on the above ground we are
not inclined to undertake habeas corpus proceeding in
exercise of jurisdiction under Article 226 of the
Constitution of India presuming that this court has
jurisdiction to entertain such proceedings.
9. The concept of paramount welfare of a minor
is considered even at this stage of proceedings of
habeas corpus, prima facie, we do not find anything
contrary to the welfare of the minor so as to over
reach outcome of the pending proceedings undertaken by
the parties under the Act, 1890. Keeping it open for
the aggrieved person to challenge the legality and
validity of the decree of the court at Dubai in
appropriate proceedings, if so desired in proceedings
under habeas corpus, we are not inclined to go into
the above issue and we dispose of this petition filed
under Arti9cle 226 of the Constitution of India for
habeas corpus in view of remedies available and
Page 17 of 18

already availed under the Act, 1890 by the petitioner.
The writ of habeas corpus is disposed of

accordingly.

Rule discharged.
(ANANT S.DAVE, J.)
(MOHINDER PAL, J.)

pvv
Page 18 of 18

Special Criminal Application (Habeas Corpus) No. 3006 of 2014

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R/SCR.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 3006 of 2014

CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE

having permanent residence at 604/A, Ullas Basti

Gardens Dutt Mandir, Mahavir Nagar, Kandivali [W],

Villa Apartments, Opp. Dwarkesh Temple, Vasna Road,

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[B] That pending admission hearing and

the mother of minor son 'Lakshya' – respondent No.3

and wife of respondent No.2, who illegally and in

No.3, who was studying in Navrachna International

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3.1 The petitioner got married to respondent

No.2 on 20.05.1999 under the Special Marriage Act,

years – respondent No.3 herein. It is further the

case of the petitioner that in view of erratic

and anxiety, and finally it was decided by the

petitioner and respondent No.2 jointly in the year

2011 to bring their children to India for better

education and accordingly they were enrolled in

3.2 The petitioner has filed application under

Section 151 of the Civil Procedure Code for

appointment of Guardian of Minors “Lakshya Vishal

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Kondhia and Yashasvi Vishal Kondhia” being C.M.A.

petitioner has also filed Interim application under

Section 12 of the Guardians & Wards Act read with

Order 39 Rule 1 & 2 along with Section 151 of the

of 2012. The petitioner has also filed a petition

Special Marriage Act, 1954 being M.J.Petition No.A­

dissolution of marriage, permanent alimony, etc. In

the proceedings under Section 12 of Guardians and

Wards Act, 1890 [for short, `the Act, 1890'] for

seeking temporary custody of minors in the Court of

therein has filed detailed reply opposing various

contentions and pleadings, but a statement was made

3.3 In the meanwhile, as per the affidavit dated

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15.06.2014 filed by respondent No.2 through his

advocate, which is a document in Arabic language

favour of respondent No.2 in Case No.151/2012 Non­

Muslim Personal Affairs. It is the case of the

also the case of the petitioner that no notice was

served upon the petitioner nor she was given any

opportunity of hearing and the respondent No.2 –

3.4 The present petition is filed for the

incident dated 09.04.2014, where both the parties

and it was understood between the parties that the

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told the petitioner that presence of minor Lakshya

vacation starts on or around 07.05.2014, the

respondent No.2 would take Lakshya to UAE and bring

On Friday, 25th April, 2014, respondent No.2 took

taken for only for weekend, and therefore, minor

Further, from the communication which took place

between the petitioner and minor Lakshya, the

record along with additional affidavit filed by the

join his mother. Thus, the respondent No.2 has

for which prayer is made to issue writ of habeas

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4 Mr. Mihir Thakore, learned Senior Advocate

appearing with Shri Salil Thakore, learned advocate

Special Marriage Act, 1954 being M.J.Petition No.A

favour of respondent No.2 in Case No.151/2012 Non