The Gujarat High Court has held that custody of a minor with his maternal grandparents could not be considered illegal custody/ confinement if father remarries during subsistence of his first marriage.
The Division Bench comprising of Justice Vipul M. Pancholi and Justice Rajendra M. Sareen was dealing with a criminal petition seeking direction to police authority to produce the corpus before the Court and handover the custody of the corpus to the petitioner father.
According to the case of the petitioner, the petitioner remarried even during the subsistence of his first marriage and out of the said second marriage, he has two children. The wife of the petitioner was residing since 2016 at her parental home and at that time the minor was aged 3.1/2 years and since then the minor is with the respondent Nos.4 and 5 - maternal grand-parents. The petitioner has made various attempts to get the custody of the corpus but failed. Hence as a last resort, the present petition has been preferred by the petitioner being father for getting custody of of his minor son.
It has been contended that the minor son requires love and affection of his father and hence it is requested to handover custody of the minor corpus to the petitioner.
The Court while dealing with the matter, ascertained the wish of the minor who stated that he is willing to reside with the respondent-maternal grand parents.
In view of the willingness expressed by the corpus, and as the petitioner has remarried and has two children and the corpus is residing with his maternal grand-parents – respondent Nos.4 and 5 herein since about 6 years, the Court ordered that the custody of the minor to be continued with the maternal grand-parents – respondent Nos.4 and 5 considering the welfare and happiness of the corpus.
"Considering the overall facts situation, 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, no interference of this Court is warranted and hence the present petition is dismissed."
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(With input from news agency language)
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