Premprakash Ramnikbhai Vaghela vs Falguniben Premprakash Vaghela ...

       C/FA/851/2020                                   ORDER DATED: 15/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 851 of 2020

                                    With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
                      In R/FIRST APPEAL NO. 851 of 2020
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                PREMPRAKASH RAMNIKBHAI VAGHELA
                            Versus
     FALGUNIBEN PREMPRAKASH VAGHELA D/O ARVINDBHAI RATHOD
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Appearance:
MR MAULIK NANAVATI for NANAVATI & CO.(7105) for the Appellant(s) No.
1
NIYANT R BHIMANI(8000) for the Appellant(s) No. 1
MR DIPEN K DAVE(3296) for the Defendant(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                 Date : 15/02/2023

                                  ORAL ORDER

1. Heard Mr. Maulik Nanavati, the learned advocate appearing for Nanavati & Company for the appellant and Mr. Sudham Dave, the learned advocate appearing for Mr. Dipen K. Dave, the learned advocate appearing for the respondent.

2. The appellant herein being aggrieved and dissatisfied by the judgment and decree dated 10.2.2020 passed by the learned Principal Judge, Family Court, Junagadh in Family Suit No.19 of 2019 has filed the present first appeal whereby the suit preferred by the respondent - original plaintiff (mother) seeking custody of minor daughter, namely, "Vipasanya" from Page 1 of 5 Downloaded on : Thu Feb 16 21:52:20 IST 2023 C/FA/851/2020 ORDER DATED: 15/02/2023 the appellant herein - original defendant (father) came to be allowed. The said order dated 10.2.2020 read thus :-

"ORDER The Family Suit No. 19/2019 is hereby allowed.

The defendant-father is hereby directed to handover the custody of minor 'Vipasanya' to the plaintiff-mother within 15 days from the date of this order.

The defendant-father is allowed to have right of visitation and company ofminor Vipasanya on every Sunday between 11.00 A.M. to 5.00 P.M.

Further, it is hereby directed that in case of any exigency or any other unavoidable circumstances, if the plaintiff is unable to give visitation right of minor to the defendant, the plaintiff shall inform in advance to the defendant about such exigency and in lieu of Sunday, the defendant is entitled to enjoy the right of visitation and company of minor on other day by mutual consent.

No order as to costs."

3. While issuing notice in the present first appeal on 20.2.2020 the following order came to be passed by the Coordinate Bench :-

C/FA/851/2020 ORDER DATED: 15/02/2023 "It is requested that the custody of the child which is ordered to be given to the mother may not be disturbed during academic year which will end after March 2020.

Issue Notice returnable on 19.03.2020.

Meanwhile, until the expiry of the academic year of the minor, her custody should not be disturbed.

The above order is passed at this stage only on the above consideration without entering into the merits of the case.

Direct service is permitted."

4. In view of the aforesaid order passed by this Court dated 20.2.2020 the custody of minor daughter "Vipasanya" was retained with the appellant herein. The respondent - original plaintiff i.e. Falguniben Premprakash Vaghela preferred Execution Application being Family Darkhast No.2 of 2020 before the learned Family Court wherein it is jointly stated by the learned advocates appearing for the respective parties that settlement has been arrived at between the parties amicably and custody of the minor daughter "Vipasanya" has been given to her father appellant herein - original defendant. Placing reliance on order passed below Ex.1 dated 11.2.2023 the learned advocates submitted jointly that the parties have Page 3 of 5 Downloaded on : Thu Feb 16 21:52:20 IST 2023 C/FA/851/2020 ORDER DATED: 15/02/2023 settled the dispute amicably outside the Court wherein the custody of the minor daughter "Vipasanya" is to be retained by the appellant herein - original defendant i.e. father of "Vipasanya".

5. In view of the aforesaid settlement the said Family Darkhast No.2 of 2020 came to be withdrawn. The said order passed below Ex.1 dated 11.2.2023 is duly produced on record which reads thus :-

" : Order under Exhibit-1 :

A withdraw pursis vide Exhibit-29 has been submitted for the plaintiff / applicant and it has been stated that, a settlement has been reached between the parties amicably and a custody of the minor daughter has been given to her father

- the defendant and therefore, she is willingly withdrawing the present application. Thus, considering the withdrawal pursis, the said application is disposed of in Lok Adalat by passing an order under Exhibit-1.

Order pronounced under my signature in the open court at Junagadh today on this 11th day of February, 2023.

6. Considering the aforesaid, without opining on the merits of the matter and in view of the settlement arrived at between the parties the order impugned dated 10.2.2020 passed in Family Suit No.19 of 2019 is accordingly quashed and set Page 4 of 5 Downloaded on : Thu Feb 16 21:52:20 IST 2023 C/FA/851/2020 ORDER DATED: 15/02/2023 aside.

7. In view of above, the present first appeal is allowed in terms of the settlement arrived at between the parties. Registry is directed to draw decree accordingly. In view of the order passed in the first appeal, the civil application stands disposed of.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 5 of 5 Downloaded on : Thu Feb 16 21:52:20 IST 2023