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SCR.A/1246/2008 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1246 of 2008
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KUNJANBEN
W/O BHARGAVBHAI LODHIA - Applicant(s)
Versus
BHARGAV
JENTILAL LODHIA & 1 - Respondent(s)
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Appearance :
MR
PM LAKHANI for Applicant(s) : 1,MRS RP LAKHANI
for Applicant(s) : 1,
None for Respondent(s) : 1,
MRS. ML SHAH,
ADDL. PUBLIC PROSECUTOR for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 01/07/2008
ORAL
ORDER
Heard
Mr.P.M.Lakhani, learned advocate for the petitioner.
It
is submitted that, looking to the record of the case, it is an
admitted position that the respondent No.1 herein, who is the father
of the minor child, had forcibly taken custody of the minor child.
The learned advocate has submitted that a perusal of the impugned
order dated 30th May, 2008 shows that the learned Judge
has merely ascertained the will of the minor child, and on that
basis, permitted the respondent No.1 to retain the custody of the
child. It is submitted that it is settled legal position that the
the willingness of the minor child is not a relevant consideration
while considering the question of custody. It is submitted that the
very fact that the child has been forcibly taken away from the
petitioner herein, is sufficient to show that the minor child has
been unlawfully confined as envisaged under the provisions of
Section 97 of the Code of Criminal Procedure, 1973.
Considering
the submissions advanced by the learned advocate for the petitioner,
issue Notice returnable on 8th July, 2008.
Mr.Mukesh
Patel, learned Additional Public Prosecutor waives service of notice
on behalf of the respondent No.2 ? State of Gujarat.
Direct
service is permitted qua respondent No.1.
[HARSHA
DEVANI, J.]
parmar*
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