Bombay High Court
Smt. Priti Bunty Chugh vs Shri. Bunty Shankar Chugh on 1 April, 2021
Bench: S. K. Shinde
18. SA-687-2019 w CAS 1287-2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Second Appeal No. 687 / 2019
with
Civil Application No. 1287 / 2019
Smt. Priti Bunty Chugh .. Appellant
Vs.
Bunty Shankar Chugh .. Respondent
****
Ms. Minal Chandnani i/by Mr. J.S. Chandnani, Advocate for the
Appellant.
Mr. Mohd. Umar Kazi, Advocate for the Respondent.
****
CORAM : SANDEEP K. SHINDE J.
DATE : 1st APRIL, 2021.
P.C. : -
1. The question of fact being wrongly determined, although
is not a criteria for entertaining a Second Appeal, however, if the
Court is satisfied that finding of fact recorded by lower Court was
vitiated due to non-consideration of relevant evidence or
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consideration of an evidence which has rendered the finding
perverse, then the, Appellate Court has jurisdiction to deliberate upon
the findings of facts.
2. Herein, pending Regular Civil Appeal No.83/2014,
appellant-wife had brought on record additional evidence, that is
findings recorded in the Domestic Violence proceedings rendered by
the Court of Judicial Magistrate First Class, Ulhasnagar. The findings
read as under :
"In view of the aforesaid decision of the Hon'ble High
Court, it is clear that no adjudication is made about the
rights of the parties in the pending cases. However, one
fact is very much established that there was direction of the
Hon'ble High Court to handover the custody of Sujal to the
applicant, but opponent no. 1 failed to obey said order, as a
result of which applicant was deprived of the custody of
child Sujal for nine months. Depriving a woman from her
child, especially when she was entitled for the same as per
the order of Court, is nothing but mental injury, which
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includes emotional abuse to her. The said act on the part of
opponent no.1 constitutes mental injury as well as
emotional abuse to applicant, because when applicant was
legally entitled for custody of Sujal, she was denied from
exercising said right. Hence, applicant has established the
fact of domestic violence to that extent."
.
3. The Appellate Court while dealing with the findings
rendered in the D.V. proceedings has held that, respondent being
father and natural guardian, taking away son from the custody of
mother, does not amount to kidnapping and further held that,
allegations of kidnapping were not well founded. The Appellate
Court, as it appears from the reasoning contained in para-37 of its
judgment has not appreciated the evidence in correct perspective,
while recording the findings against points no.1 and 2 and confirmed
the decree of dissolution of marriage passed by the trial Court. In my
view, the findings rendered in the D.V. proceedings (as reproduced
above) has had bearing over the issue/point of cruelty decided
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against the appellant-wife.
4. Thus, the substantial question of law arising in this Appeal
is, "Whether the findings rendered in the D.V. proceedings, has had,
underlying effect, while answering points no.1 and 2 ?; AND,
Whether the findings rendered on points no.1 and 2, are perverse ?"
5. Admit.
6. Call Record and Proceedings from the trial Court.
7. In consideration of the facts of the case and its nature, it
is clarified though, the Appeal is admitted, parties are at liberty to
take recourse to Alternative Dispute Resolution mechanism, and if
recourse is taken, let the dispute be resolved without being
influenced by the admission of the instant Appeal.
(SANDEEP K. SHINDE, J.)
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