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Judgment
Ashutosh J. Shastri, J
This petition is filed by the petitioner â€" partyÂinÂperson (original applicant) under Article 227 of the Constitution of India for seeking multiple
reliefs which are contained in Para.6 of the petition which is reproduced hereinafter :
“(a) To admit and allow this petition;
(b) To quash and set aside the order dated 2.2.2019 passed by the learned Judge, Family Court No.3, Ahmedabad in Civil Misc. Application No.43 of
2018; and modify the order to the extent that the;
(bÂ1) Respondent be directed to take admission of the child in neighborhood school preferably in morning sessin.
(bÂ2) Previous standard of child access to petition for 14 hours split in 2 days a week be maintained irrespective of school time changes in future. (Till
the time respondent changes the school, petitioner is already to keep the child on Tue 4.30 pm to 8 p.m. and Friday evening 4.30 pm to Saturday noon
1 pm in such a way that after reducing 9 inactive hrs. of sleep, petitioner father and daughter both can at least maintain bonding of total 14 hours per
week as per the original agreement of both the parties (vide CMAÂDCÂ67/2016).
(bÂ3) Pick up from school by petitioner to his home be maintained.
(bÂ4) In case of holidays or adjustment required by either party, changes of days be adjusted and carried forward mutually.
(bÂ5) Child access timing of 10 AM to 7 PM during vacations be maintained but days to be set for 5 days a week â€" Monday to Friday as
respondent is working in office whereas petitioner is working from home.
(bÂ6) Equal rights be given to petitioner to take his child for travelling out of Ahmedabad during vacations and during occasions.
(bÂ7) Equal access of child be given to both the parents on
(a) Birthdays of child and parents (b) all festivals (c) Father’s / Mother’s days.
(bÂ8) Respondent nowhere be allowed to represent herself as single guardian of the child “Jhankrutiâ€.
c. During the pendency and final disposal of the present petition, Your Lordships may be pleased to stay the implementation, operation and execution
of the order dated 2.2.2019 passed by the Ld. Judge, Family Court No.3, Ahmedabad in Civil Misc. Application No.43 of 2018;
d. During the pendency and final disposal of the present petition, Your Lordships may be pleased to grant parenting rights to the petitioner as prayed
for in paragraph (b) and its subÂparas above;
e. Pass any such order and/or further orders that may be thought just and proper, in the facts and circumstances of the present case.
f. To pardon petitionerÂfather in case he has failed in any compliance / Rules / Protocols during his entire legal representation as partyÂinÂperson.â€
The background facts giving rise to present petition are that the petitioner got married to respondent herein as per Hindu rites and ceremony on
21.1.2011 and out of the said wedlock, the respondent herein gave birth to a babyÂgirl on 3.9.2012, named as Jhankruti. By passage of time, some
disturbance took place in the married life which resulted into filing of proceedings. According to the petitioner, he is working as Practicing Cost
Accountant, having the responsibility of widowed mother, whereas the respondent herein is in the full time job serving in Well Worth Share and Stock
Broking Ltd. According to the petitioner, the respondent being a working woman is not in a position to take care of the minor daughter. As a result of
this, since both were separated, the petitioner filed an application on 12.7.2016 being Civil Misc. Application No.67 of 2016 in which the compromise
took place between the parties and the settlement terms were deducted in writing and in terms of the compromise in view of Order 23 Rule 3 of the
Code of Civil Procedure, the aforesaid Civil Misc. Application No.67 of 2016 came to be disposed of. For quite some time, said compromise stated to
have been observed. But then, the petitioner was required to file Civil Misc. Application No.43 of 2018 for seeking interim custody under Section 26 of
the Hindu Marriage Act and under Section 12(1) of the Guardians and Wards Act. In the said proceedings, an interim relief application also came to
be given by the petitioner at Exh.5 which came up for consideration before the learned Judge, Family Court No.3, Ahmedabad, who, by an order dated
2.2.2019, was pleased to reject the application with cost of Rs.5000/Â and also directed the petitioner to pay Rs.3000/Â to the opponent. It is this
order which is made the subject matter of present present under Article 227 of the Constitution of India.
The Court, after hearing the partyÂinÂperson, was pleased to issue notice on 13.3.2019 and after giving an opportunity of hearing to both the sides
from time to time, the matter was placed before the Gujarat High Court Mediation Center with a view to explore the possibility of settlement, vide
order dated 14.6.2019. It was later on informed to the Court that compromise appears to have not been effected. As a result of this, the main matter is
taken up for decision and the Court had heard the matter at length for deciding finally with the request and consent of both the sides.
The partyÂinÂperson has vehemently contended that while passing the impugned order below Exh.5, the trial court has not taken into consideration
the welfare of the child. The multiple reliefs which have been prayed in the application were centering around the welfare of the child only and as held
by series of decisions, that is the only point which is to be taken care of by the Court while deciding the application. The partyÂinÂperson has
submitted that the respondent being a working woman, may not be able to take care of the child and as such, some provisions to keep the interest of
the child, deserve to be kept in mind. It has been contended that substantial ground on which the application is not entertained is that on previous
occasion, a compromise took place in which the partyÂinÂperson has signed the same and the matter came to be disposed of. It has been contended
that on change of circumstance and the situation, it is always possible for the partyÂinÂperson to bring an application. Hence, the order in question is
not just and proper. The partyÂinÂperson has further contended that right now, the age of the child is not such that she can live even temporarily with
mother. By referring to the conversation with the wife at a sister’s place reflecting on PageÂ134/B, the child is not in a position even to reside
overnight and, therefore, in view of this changed scenario, the application ought to have been considered since the parents have equal right to share
the feeling with the child. By referring to the decision rendered in FAO No.9640 of 2014, dated 1.12.2014, by the Punjab & Haryana High Court as
well as Delhi High Court rendered in MAT Application (F.C.) No.67 of 2015, decided on 17.2.2017 respectively, a contention is raised that even
overnight custody may be given to the father being a natural parent. Though several contentions have been raised, the trial court has not dealt with and
even subsequent events have also not been considered which has adversely affected the visitation rights of the partyÂinÂperson. While passing the
impugned order, the trial court has not assigned any cogent reasons. As a result of this, the order in question deserves to be corrected.
4.1 The partyÂinÂperson has attached all the relevant records including the decision delivered by the Apex Court in case of Central Board of
Trustees as well as the communication which took place during the passage of time and thereby, contended that simply because on earlier occasion,
the compromise took place, the same cannot be thrust upon for all time to come. The partyÂinÂperson has further contended that compromise is not
such which reflects that for all time to come, the partyÂin person has surrendered his right of custody and visitation right. To contend that, a
reference is made to Page Nos.126 and 136 of the petition compilation. The partyÂinÂperson has contended that he has a capacity to even maintain
the child and it is only on account of rift between the partyÂinÂperson and the respondent, the child is deprived of parental affection. Therefore, the
overall circumstance is clearly suggesting that the order which has been passed is unjust, improper and no in consonance with the material on record.
Too technical approach is adopted by the trial court, according to the partyÂinÂperson while dealing with the welfare of the child. By taking such plea
before the Court, a request is made to grant the reliefs as prayed in the petition.
As against this, Mr. Abhisst K. Thaker, learned advocate appearing on behalf of the contesting respondent, has vehemently contended that there is
no error committed by the trial court in passing the order which is impugned. On the contrary, while deciding the Exh.5 application, the trial court has
gone into every aspect and passed a reasoned order. As a result of this, since the conclusion arrived at is based upon the record, the same cannot be
said to be perverse in any form. The trial court has also considered the effect of earlier compromise agreement which is undisputedly signed by the
partyÂinÂperson, on the basis of which Civil Misc. Application No.67 of 2016 came to be disposed of. Further, learned advocate has submitted that it
is absolutely incorrect to state that respondent is not in a position to take care of a child in a proper manner. On the contrary, the situation is other way
round and after thoughtful process, the compromise terms have been signed by the parties which appear to have been completely in the welfare of a
child. It has been submitted that here is a girl child who is aged about 6 years, the mother would be best person to keep the welfare of a minor, as she
being a natural guardian. Hence, there seem to be no error committed by the trial court in any form. In fact, according to learned advocate, this is
nothing but a gross misuse of the provisions by the partyÂinÂperson. Since this issue about custody and welfare has already been deliberated in past
and vide Exh.17, the same has attained finality. On the contrary, looking to the age of the child, the custody with the mother would be legitimate and if
the custody issue is tinkered with or altered, for which by now the minor has been accustom to, the same would change the mindset of a minor which
may turn out to be harmful for her psychology. In fact, the respondent is also well qualified, can sufficiently take care of the minor even independently
and if at all there is any grievance with regard to the terms on which the main proceedings in past have been disposed of, a specific remedy is already
available. But this issue again and again cannot be churned by partyÂin person. Hence, the trial court has rightly rejected the application with cost.
5.1 Mr. Abhisst Thaker, learned advocate, has submitted that no doubt, a reference is made by partyÂinÂperson to a decision of the Apex Court in
past. But the recent pronouncement in case of Nutan Gautam v. Prakash Gautam, reported in (2019) 4 SCC 734, in clear terms it has been held that
the child cannot be compelled to be admitted in a particular school against his / her wish and as such, the principle of paramount consideration of
welfare of minor is vogue, rather it is reiterated even in the recent pronouncement. As a result of this, there is hardly any merit in case of partyÂinÂ‐
person.
5.2 Additionally, Mr. Abhisst Thaker, learned advocate, has submitted that this is basically a petition under Article 227 of the Constitution of India
where the scope which has been propounded is very limited and unless and until there is any perversity or any material irregularity in exercise of such
power
i.e. extraordinary in nature, no substitution of view is permissible and there is no special circumstance carved out by partyÂinÂperson to deviate from
this principle which is time and again reiterated by the Apex Court. As a result of this, the view taken by the trial court does not call for any
interference.
Having heard the partyÂinÂperson and the learned advocate appearing for the contesting respondent and having gone through the material on
record, following circumstances are not possible to be unnoticed by this Court:
(1) With a view to explore the possibility of overall resolution between the parties, a specific attempt was made to resolve this dispute through the
Gujarat High Court Mediation Center. But then, unfortunately, the same has not been worked out. As a result of this, the petition has been taken up
for its disposal. Apart from the aforesaid fact, it appears to this Court that the parents are not at ad idem and are fighting tooth and nail, in which the
welfare of the child has stuck up. Considering the age of the minor girl child and considering the fact that the mother would be a natural guardian, no
tinkering with the welfare of a child in any manner is possible. On the contrary, keeping in view the original proceedings i.e. Civil Misc. Application
No.67 of 2016, a specific compromise is arrived at between both the parties, undisputedly signed at Exh.17. It is not in dispute that the same has not
remained a workable formula and, therefore, when that be so, the compromise agreement which took place on 12.1.2017 and since the same is in
operation, this Court is not inclined to disturb in exercise of extraordinary jurisdiction, more particularly when the trial court has taken into consideration
such issues. However, with a view to see that what would be the effect of said compromise which has attained finality, the trial court at an interim
stage, has exercised the discretion which is vested in law. This Court finds no irregularity nor any perversity in such finding, more particularly when
the findings are based on overall consideration and analysis of material on record.
(2) Additionally, what has been challenged before the Court is an interim order dated 2.2.2019 passed below Exh.5 in pending Civil Misc. Application
No.43 of 2018 and, therefore, to grant the relief which has been sought would tantamount to grant a substantial relief without proper adjudication.
Hence, keeping in view the settled proposition of law, instead of interfering with the order impugned passed below Exh.5, this Court is of the opinion
that such issue entangled in the main proceedings i.e. Civil Misc. Application No.43 of 2018 deserves to be decided as early as possible. While
examining the order impugned in the petition, which is well supported by material on record, the scope of Article 227 of the Constitution of India is also
not possible to be ignored by this Court and as such, keeping in mind the decision of the Apex Court in case of Sneh Gupta v. Devi Sarup & Ors.,
reported in (2009) 6 SCC 194, on the issue of scope of Article 227 of the Constitution of India, the Court is unable to substitute the finding since the
partyÂinÂperson is not in a position to assign any distinguishable circumstance. Relevant observations contained in Para.41 of the aforesaid decision
are reproduced hereinafter :
“41. The High Court moreover was exercising its jurisdiction under Article 227 of the Constitution of India. While exercising the said jurisdiction,
the High Court had a limited role to play. It is not the function of the High court while exercising its supervisory jurisdiction to enter into the disputed
question of fact. It has not been found by the High Court that the findings arrived at by the learned Additional District Judge were perverse and/ or in
arriving the said findings, the learned Additional District Judge failed and/ or neglected to take into consideration the relevant factors or based its
decision on irrelevant factors not germane therefor. It could intervene, if there existed an error apparent on the face of the record or, if any other well
known principle of judicial review was found to be applicable.â€
Yet another decision of the Apex Court in case of Sameer Suresh Gupta TR PA Holder V/s. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374
is also kept in mind while coming to the conclusion in present proceedings.
In view of aforesaid set of circumstance and in view of the material which has been placed and keeping in view of the recent pronouncement
referred to above, the Court is not inclined to disturb the order impugned dated 2.2.2019. However, since the issue is significantly touching to the
welfare of the minor, the Court is inclined to dispose of the present petition by issuing following directions :
(1) The impugned order dated 2.2.2019 passed below Exh.5 in the main proceedings is confirmed, with a consequential direction that main proceedings
i.e. Civil Misc. Application No.43 of 2018 be decided in accordance with law, on its own merits as early as possible, preferably within a period of 4
months from the date of receipt of writ of this Court.
(2) The partyÂinÂperson as well as the respondent are directed to cooperate with the proceedings so as to enable the trial court to decide the Civil
Misc. Application No.43 of 2018 within the time schedule and both the sides shall not take any unnecessary adjournment.
(3) It is needless to say that these observations which have been made in the impugned order are at interlocutory stage and the main proceedings i.e.
Civil Misc. Application No.43 of 2018 be disposed of and decided without being influenced by the observations made in the impugned order.
With this clarification and directions, the present petition stands disposed of, with no order as to costs. Notice is discharged.
In view of the order passed in the main matter, the connected Civil Application also stands disposed of.