Gujarat High Court
Gangaben Alias Gitaben D/O Goswami ... vs Darshan on 20 June, 2025
NEUTRAL CITATION
C/SCA/7232/2018 ORDER DATED: 20/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7232 of 2018
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GANGABEN ALIAS GITABEN D/O GOSWAMI MAHADEVPURI RATANPURI
Versus
DARSHAN & ORS.
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Appearance:
MR VIRAL J DAVE(5751) for the Petitioner(s) No. 1
MS SHALINI S MAIR(2681) for the Respondent(s) No. 3
REFUSED SERVED (N)(10) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 20/06/2025
ORAL ORDER
1. Heard learned advocate Mr. Viral J. Dave for the petitioner.
2. This matter was listed yesterday but none appears on behalf of the respondent No.3. To give one last opportunity, it was listed today. Today also when the matter was called out, none appears on behalf of respondent No.3.
3. As this matter is filed in the year 2018, this Court thought it fit to hear it finally.
4. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :
Page 1 of 13 Uploaded by SALIM(HC01108) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:05:41 IST 2025NEUTRAL CITATION C/SCA/7232/2018 ORDER DATED: 20/06/2025 undefined "(A) That this Hon'ble Court be pleased to quash and set aside the judgment and order dated 24-8-2016 passed by the Ld. Principal Senior Civil Judge Gandhinagar Below Ex-5 in Regular Civil Suit no.123/2007 a copy whereof figure at annexure "F" under Article 227 of the constitution of India and there upon be pleased to remand the matter for a fresh decision of Ex-5 in Regular Civil Suit No. 123/07.
(B) That pending Admission hearing and Final disposal of the petition this Hon'ble Court be pleased to stay the implementation and operation of the impugned judgment and order dated 24-8-2016 Passed by the Ld. Principal Senior Civil Judge Gandhinagar below Ex-
5 in Regular Civil Suit No. 123/2007 a copy whereof figure at annexure "F".
(C) That pending Admission hearing and Final disposal of the petition this Hon'ble Court be pleased to stay the implementation and operation of the execution petition No.1/2017 filed before the Civil Court at Harij a copy whereof figure at annexure "G".
(D) That this Hon'ble Court be pleased to award the cost of this Special Civil Application to the petitioner.
(E) That this Hon'ble Court be pleased to pass such other and further order as the nature and circumstance of the case may demand."
5. At the outset, learned advocate Mr. Dave for the petitioner states that during the pendency of the present writ application, Regular Civil Suit No. 123 of 2007 instituted by the respondent Nos. 1 & 2 herein, who were minor at the relevant point of time, through respondent No.3 claiming to be guardian of respondent Nos. 1 & 2, got dismissed for default and as on date, no restoration application is filed by the respondents. Nonetheless, considering the impugned order and the petitioner is facing execution of order Page 2 of 13 Uploaded by SALIM(HC01108) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:05:41 IST 2025 NEUTRAL CITATION C/SCA/7232/2018 ORDER DATED: 20/06/2025 undefined impugned in present application instituted by the respondents, which is of-course pending but stayed by this Court, learned advocate for the petitioner requests this Court to decide the issue germane in the application on its merit.
6. With the aforesaid background of facts, this Court has heard learned advocate Mr. Dave for the petitioner at length.
7. Learned advocate Mr. Dave would submit that despite observing in earlier round of litigation by this Court while passing the judgment and order dated 21.01.2014 passed in Special Civil Application No. 12004 of 2012 whereby, the trial Court was required to consider certain vital aspect of the case as regards to the capability of father of respondent Nos. 1 & 2, who happens to be husband of the petitioner to maintain respondent Nos. 1 & 2 (children), readiness and willingness of the petitioner to keep and maintain her children etc., were not at all taken into consideration while passing impugned order.
7.1 It is submitted that when there is clear observations made by this Court while remanding the matter back to the trial Court, still the trial Court has passed mechanical order Page 3 of 13 Uploaded by SALIM(HC01108) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:05:41 IST 2025 NEUTRAL CITATION C/SCA/7232/2018 ORDER DATED: 20/06/2025 undefined without appreciating facts and observations made by this Court.
7.2 Learned advocate Mr. Dave would submit that Civil Suit came to be filed on behalf of respondent Nos. 1 & 2 who are children of petitioner and minor at the relevant point of time through respondent No.3 claiming to be his guardian, though there is no order of competent Court appointed respondent No.3 as a guardian of minor and on this issue itself suit, suit requires to be dismissed.
7.3 It is submitted that respondent Nos. 1 & 2 herein are children of petitioner and when parents of respondent Nos. 1 & 2 i.e. petitioner and her husband both are alive, the question of filing suit through a stranger claimed to be guardian is required to be considered by the trial Court. Inasmuch as it is a specific case of the petitioner before the trial Court that such suit was instituted at the behest of father of respondent Nos. 1 & 2 having strange relationship with the petitioner.
7.4 Learned advocate Mr. Dave would further submit that father of respondent Nos. 1 & 2, who happens to be husband of the petitioner, practicing Lawyer in the Lower Court having sufficient income to maintain both the children, Page 4 of 13 Uploaded by SALIM(HC01108) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:05:41 IST 2025 NEUTRAL CITATION C/SCA/7232/2018 ORDER DATED: 20/06/2025 undefined who were residing with him but despite that petitioner having left out from her matrimonial home as a counter blast, father used both the children as a tool and by abusing process of Court, instituted the suit against the petitioner claiming maintenance for her children.
7.5 Learned advocate Mr. Dave would further submit that there are certain developments which have been taken place during the pendency of the present writ application, whereby an order of maintenance passed against the husband of petitioner - father of respondent No.1 & 2 is not only confirmed by the Co-ordinate Bench of this Court but certain observations were made by this Court in the judgment and order would goes to the root of the matter. He would further submit that this Court in such maintenance proceedings have categorically observed that the children are to be looked after and requires to be maintained by the husband of the petitioner only, happens to be father and not by mother.
7.6 Learned advocate Mr. Dave would rely upon the judgment passed by this Co-ordinate Bench of this Court dated 19.07.2024 passed in Criminal Revision Application (for maintenance) No. 453 of 2018 as well as order dated 17.04.2025 passed in Special Criminal Application (Quashing) Page 5 of 13 Uploaded by SALIM(HC01108) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:05:41 IST 2025 NEUTRAL CITATION C/SCA/7232/2018 ORDER DATED: 20/06/2025 undefined No. 6051 of 2018 with Special Criminal Application No. 8274 of 2018.
7.7 Lastly, learned advocate Mr. Dave would submit that by passage of time, respondent Nos. 1 & 2 herein are by now major and well placed in their life. Respondent No.1 is now working as Talati-cum-Mantri, having government job, whereas respondent No.2 - daughter of petitioner is settled down in Australia, running her nursing home as per instructions of his client. So, as such respondent No.1 & 2 are no longer requires any maintenance as such and in fact not interested in this litigation whereby refused notice issued by this Court.
7.8 Thus, learned advocate Mr. Dave would request this Court to allow the present writ application. No other and further submissions being made by him.
Point for consideration
8. The short questions fall for consideration of this Court as under :-
(i) Whether in the facts and circumstance of case, the impugned order passed by the trial Court requires to be interfered by this Court while exercising powers under Page 6 of 13 Uploaded by SALIM(HC01108) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:05:41 IST 2025 NEUTRAL CITATION C/SCA/7232/2018 ORDER DATED: 20/06/2025 undefined Article 227 of the Constitution of India or not?
(ii) Whether in the facts and circumstances of the case, institution of the suit at instance of respondent No.3 claiming to be guardian of respondent No.1 & 2 was maintainable?
ANALYSIS
9. At the outset, it is required to be noted here that respondents herein are original plaintiffs whereas petitioner is original defendant of Regular Civil Suit No. 123 of 2007 instituted under Section 20 (2) of Hindu Adoption and Maintenance Act, 1956 (herein after referred as 'Adoption Act') seeking maintenance from the petitioner as respondent Nos. 1 & 2 are her children alleged to have been neglected and not looked after by the petitioner-mother.
10. I have gone through the impugned order, materials placed before this Court and so also the orders passed by the Co-ordinate Bench of this Court which was bank upon by the learned advocate Mr. Dave for the petitioner during the course of his submissions.
10.1 It appears and due to following, there is reason to Page 7 of 13 Uploaded by SALIM(HC01108) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:05:41 IST 2025 NEUTRAL CITATION C/SCA/7232/2018 ORDER DATED: 20/06/2025 undefined believe that real dispute is between husband and wife i.e. father and mother of respondent Nos. 1 & 2 and reasons best known to father of respondent Nos. 1 & 2, they became ploy of father which is used against petitioner by instituting suit under Adoption Act. It is very deplorable state of affair that father being practicing advocate having sufficient means to maintain children, used them to file such kind of frivolous litigation against mother of children.
10.2 It requires to be observed that as per decisions referred by the learned advocate for the petitioner passed by the Co-ordinate Bench of this Court in maintenance matters instituted between father and mother of respondent Nos. 1 & 2 herein would clearly shows that father is well of and sufficient means to maintain respondent Nos. 1 & 2 and in fact supposed to maintain petitioner as welll.
10.3 By filing such a frivolous suit, by using children as a ploy, father of respondent Nos. 1 & 2 herein have lost one crucial factor that by filing such suit, relationship between children and mother would further worsen which ought to have been avoided irrespective of fact that parents might have serious dispute and blame each other in the Court of law. This is not acceptable to the Court when legal machinery is used by a person having full knowledge of law, much can Page 8 of 13 Uploaded by SALIM(HC01108) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:05:41 IST 2025 NEUTRAL CITATION C/SCA/7232/2018 ORDER DATED: 20/06/2025 undefined be said about the institution of the suit but I keep myself restrained not to observe anything more as father of respondent Nos. 1 & 2 is not before this Court but the aforesaid observations made as respondent No.3 alleged to have been guardian of children could not have instituted suit unless permission must have been granted by father of respondent Nos. 1 & 2, who according to respondent Nos. 1 & 2 who was looking after them as narrated in the suit.
10.4 So far as legality and validity of the order impugned in the present writ application is concerned, this Court vide its judgement and order dated 21.01.2014 passed in Special Civil Application No. 12004 of 2012 has categorically observed certain factors which were unnoticed by the trial Court in earlier round of litigation which should have been noticed while passing impugned order. To save repetition, I would like to refer and reproduce those observations so made by the Co-ordinate Bench of this Court in its aforesaid decision, which reads as under :-
"12. xxxxxxxx Further, the learned trial Court has not considered the different points, such as, assertion of good income of the petitioner's husband and owning of properties by him; readiness and willingness of the petitioner to keep and maintain her children etc. Therefore, the conclusion drawn and finding arrived at by the learned trial Court requires interference. Reasonableness of amount apart, the order, including the interim order should be supported by acceptable reason.xxxx "Page 9 of 13 Uploaded by SALIM(HC01108) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:05:41 IST 2025
NEUTRAL CITATION C/SCA/7232/2018 ORDER DATED: 20/06/2025 undefined
11. While examining the impugned order in the present writ application, it is evident that the trial Court failed to consider these crucial factors. Instead, the trial Court, in a very slipshod manner, allowed the interim application filed by respondent Nos. 1 and 2, who are the children of the petitioner. The trial Court has completely lost sight of the fact that when father being one of parents of respondent Nos. 1 & 2 is capable to look after children and when petitioner has already shown willingness to accept her children which was not allowed by father then these two factors would disentitled to claim any interim relief from petitioner. Furthermore, when petitioner has been awarded maintenance by competent court to be paid by father of respondent Nos. 1 & 2 itself suggest that petitioner is not having an income whereby any amount she can pay as a maintenance to her children as claimed. All these factors are completely lost sight by trial Court thereby impugned order is not only erroneous and perverse but arbitrary and not in consonance with provision of Adoption Act. There is no purpose would be served to remand the matter as main suit is itself now no more on the file of the trial Court, having been dismissed for non-prosecution.
12. Apart from the aforesaid facts and circumstances, the trial Court was required to first observe about the Page 10 of 13 Uploaded by SALIM(HC01108) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:05:41 IST 2025 NEUTRAL CITATION C/SCA/7232/2018 ORDER DATED: 20/06/2025 undefined maintainability of the suit at the instance of respondent No.3, who alleged to have been guardian of minor i.e. Respondent Nos. 1 & 2 herein. When parents of respondent Nos. 1 & 2 are alive and any relief claimed by minor children against one of the parents, ordinarily another parent being natural guardian was required to institute such suit, if wants to claim any maintenance under Adoption Act for betterment of children unless he/she suffered from any legal impediment. There is nothing on record to show that respondent No.3 is appointed as a guardian of respondent Nos. 1 & 2 by the competent Court, though parents of respondent Nos. 1 & 2 being natural guardian are alive having not suffered from any legal impediment.
13. If father of respondent Nos. 1 & 2 being practicing lawyer could have instituted suit as a guardian of his children, he was required to face so many hurdle including the fact that why is he not in a position to maintain his children?. To avoid such situation, one of the relatives of father of respondent Nos. 1 & 2 has been shown as a guardian of children without narrating anything as to how he becomes guardian of respondent Nos. 1 & 2. This legal aspect required to have been considered by the trial Court while deciding injunction application as it goes to the root of matter being foundational fact of maintaining the suit. It appears that trial Court has not even whispered about this Page 11 of 13 Uploaded by SALIM(HC01108) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:05:41 IST 2025 NEUTRAL CITATION C/SCA/7232/2018 ORDER DATED: 20/06/2025 undefined issue while passing impugned order. It may be true that such issue might not be effectively raised by petitioner but being pure question of law as jurisdictional issue, can be raised at any point of time and requires to be decided by the Court especially when someone try to misuse legal machinery.
14. Having so considered the aforesaid aspect of the matter and after appreciating submissions made by the learned advocate Mr. Dave for the petitioner coupled with the fact that entire suit has been instituted with an oblique motive and to pressurize petitioner being mother of children i.e. respondent Nos. 1 & 2, whereby maintenance proceedings were faced by the father of respondent Nos. 1 & 2 could have been settled down by her as per his wish but fortunately, such attempt was failed which can be seen from the order dated 19.07.2024 passed in Criminal Revision Application (For Maintenance) No. 453 of 2018 and order dated 17.04.2025 passed in Special Criminal Application (Quashing) No. 6051 of 2018, of this Court.
Conclusion
15. Thus, in view of the aforesaid discussion, observation and reasons, I am of the view that the trial Court has miserably failed to consider the aforesaid factors into account while passing the interim order in favour of Page 12 of 13 Uploaded by SALIM(HC01108) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:05:41 IST 2025 NEUTRAL CITATION C/SCA/7232/2018 ORDER DATED: 20/06/2025 undefined respondent Nos. 1 & 2, whereby committed jurisdictional error and observations and reasons assigned by the trial Court is not only erroneous but perverse and contrary but not in consonance with the provision of law and so also observations made by this Court in earlier round of litigation.
15.1 This Court further hold that institution of the Regular Civil Suit No. 123 of 2007 at instance of respondent No.3 claiming to be guardian of respondent Nos.1 & 2 was not maintainable in absence of any order passed by competent court appointing him as guardian especially when both parents of respondent Nos.1 & 2 who are natural guardian alive and not suffering from any legal impediment.
16. In view of the aforesaid, the order impugned in the present writ application requires to be quashed and set aside, which is hereby quashed and set aside. Consequently, writ application is fully allowed in terms of Para-15(A) and accordingly, Execution Petition No. 1 of 2017 pending before the Principal Civil Judge, Harij is also hereby quashed and set aside. Rule is made absolute.
(MAULIK J.SHELAT,J) SALIM/ Page 13 of 13 Uploaded by SALIM(HC01108) on Mon Jun 23 2025 Downloaded on : Mon Jun 23 23:05:41 IST 2025