Anita Raj Ajmera vs Raj Ramesh Ajmera
2023 Latest Caselaw 4650 Bom

2023:BHC-AS:13382                                                      2-wp-3937-2023.doc


                    Shailaja


                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION
                                CIVIL WRIT PETITION NO.3937 OF 2023

                    Anita Raj Ajmera                          ]
                    Adult Indian Inhabitant                   ]
                    Nee: Miss Anita Rajkumar Sharma           ]
                    Age: 40 years, Occupation: Housewife      ]
                    Presently residing at: 801, Vastu Bldg,   ]
                    52, Pali Hill, Bandra, West,              ]
                    Mumbai 400 050.                           ]       Petitioner
                          Vs.
                    Raj Ramesh Ajmera                         ]
                    Adult Indian Inhabitant                   ]
                    with an American Passport                 ]
                    Age: 45 years, Occupation:Business        ]
                    Permanently residing at: 172, Jolly       ]
                    Maker Apts, III, Cuffe Parade,            ]
                    Mumbai 400 005.                           ]
                    Presently residing at: 702, Bhadralok     ]
                    Bldg, Old Padra Rd. Vadodara.             ]       Respondent
                                                      .....
                    Ms. Taubon F. Irani, for Petitioner.

                    Mr. R.T. Lalwani a/w Sarah Kapadia, Anoushka Ajoy Thangkhiew i/
                    b Vesta Legal, for Respondent.
                                                   .....
                              CORAM                : PRITHVIRAJ K. CHAVAN, J.
                              RESERVED ON          : 26th APRIL, 2023.
                              PRONOUNCED ON :3rd MAY, 2023.


                    ORDER:

1. Heard.

2. Rule.

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3. Learned Counsel for the respondent waives service.

4. By consent, returnable forthwith and taken up for hearing and

final disposal.

5. Supervisory jurisdiction under Article 227 of the Constitution

of India is sought to be invoked by the petitioner-wife assailing an

order passed by the Family Court on an application in D. No.58 of

2017 on 10th March, 2023, which reads thus;

"In view of Order passed on Exhibit - 9 in Petition A-126 of 2013, Application is rejected".

Sd/-

10.03.2023

6. This is a prolix and verbose petition in the sense, it is

tediously lengthy dwelling on trivial details, containing unnecessary

facts which are not at all germane for deciding the petition qua the

impugned one line order.

7. Shorne of unnecessary details, a few facts are as follows.

8. Petitioner and respondent got married on 15th December,

2005. They are blessed with two sons. Elder son Ruhaan was born

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on 2nd October, 2008 and younger son Ayaan was born on 22nd

February, 2013.

9. Somewhere in March, 2006, the respondent shifted to

Vadodara temporarily till his business is settled. The petitioner, too,

accompanied him. In June, 2015, the petitioner left matrimonial

home with two minor sons and returned to Mumbai to her natal

home due to the alleged discord and cruelty inflicted upon her by

the respondent.

10. On 18th May, 2017, the respondent filed a Petition bearing

D-58 of 2017 for custody of minor sons. On 22nd June, 2017, a

petition bearing No. C-42 of 2017 came to be filed by the petitioner

seeking maintenance for herself and minor children. A written

statement has already been filed in the said petition by the

respondent. The petitioner has also filed written statement in the

custody petition bearing No. D-58 of 2017 along with counter

claim seeking divorce and other reliefs on 19th December, 2018.

11. On 6th September, 2022, an order came to be passed by the

Family Court in respondent's Petition bearing No. D-58 of 2017,

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inter alia, directing the respondent to renew passports of both

minor sons and deposit the same in the Family Court.

12. The respondent challenged the said order by way of a writ

petition in this Court bearing No.12640 of 2022. While upholding

the order of the Family Court, this Court directed the Family Court

to hear the pending applications expeditiously within four weeks.

13. The petitioner filed a divorce petition against the respondent

on 13th January, 2023 bearing A-126 of 2023 before Family Court

at Bandra. She moved an application seeking clubbing of Petition

bearing No.126 of 2023 along with D-58 of 2017 and C-42 of

2017. The learned Judge, Family Court rejected her application

which order has been impugned in the present petition.

14. I heard Ms. Irani, learned Counsel for the petitioner at a

considerable length. She vehemently argued and tried to impress

upon me as to how the learned Judge, Family Court committed

patent illegality while passing the impugned order which is without

proper application of mind to overall facts and circumstances of the

case by ignoring settled position of law.

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15. Learned Counsel for the petitioner would argue that it is a

fundamental principle of law that the Court should be independent,

impartial, free of any bias, affection or ill will and justice should not

only be done, but should undoubtedly and manifestly seen to be

done. According to her, order is against the laws of equity, good

conscience and principles of natural justice as it came to be passed in

immense haste without assigning any reason. According to Ms.

Irani, the learned Judge ought to have clubbed all the matters in

order to avoid duplicity of proceedings, contradictory judgments

and also to save the valuable judicial time.

16. On the other hand, Mr. Lalwani, learned Counsel for the

respondent while countering the arguments of the learned Counsel

for the petitioner invited my attention to an order passed in the writ

petition No.12640 of 2022 dated 16th November, 2022 directing

time bound disposal of custody petition bearing No. D-58 of 2017

qua the minor children filed by the respondent and Maintenance

Petition bearing No. C-42 of 2017 filed by the petitioner-wife

expeditiously within one year from 21st November, 2022.

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17. According to Mr. Lalwani, this is nothing but an attempt to

protract the custody petition under the garb of clubbing the divorce

petition filed by the petitioner on 13th January, 2023. He has also

drawn my attention to the fact that the petitioner is not entitled for

invoking discretionary and equitable jurisdiction of this Court as she

has not tendered order of the Family Court dated 17th February,

2023 passed below "Exhibit 9" rejecting her application. Learned

Counsel for the respondent has also denied all the allegations

levelled by the petitioner against the respondent-husband.

18. An application was moved by the petitioner-wife in Petition

No. D-58 of 2017 before the Family Court, Bandra praying therein

to club Petition No.C-42 of 2017, Petition No.D-58 of 2017 along

with Petition No. A-126 of 2023 by contending that all pending

disputes between the parties would be disposed of expeditiously

saving judicial time as there would be common evidence. However,

by the impugned one line order, the learned Judge rejected her

application in view of an order already passed below "Exhibit 9" in

Petition No. A-126 of 2023. The petitioner ought to have tendered

copy of the order passed below "Exhibit 9" in her petition No. A-

126 of 2023 when the impugned order specifically indicated that in

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view of the order passed below "Exhibit 9" in her Petition No. A-

126 of 202, her application came to be rejected. Rather, copy of

the said order was tendered by Mr. Lalwani, learned Counsel for the

respondent who is right in submitting that the petitioner has

suppressed this material fact and, therefore, cannot claim

discretionary relief as she has not come with clean hands.

19. Coming to the order passed below "Exhibit 9" in Petition No.

A-126 of 2023 dated 17th February, 2023, wherein the learned

Judge has rightly rejected the application by assigning cogent, legal

and proper reasons. Paragraph 8 and 9 of the said order are

extracted below;

"8. Thus, from perusal of order of Hon'ble High Court, it is clear that being old pendency, the Hon'ble High Court has directed to expedite hearing of both the cases i.e D-58 of 2017 and C-42 of 2017. It is also worthwhile to mentioned that the wife had filed counter claim in petition No. D-58 of 2017, but it is pertinent to note that she has not opted her claim of divorce in her "C" petition. Considering the merit of that particular application for counter claim at Exh.38, this Court rejected the application at Exh.38on merit on 08.12.2022. It is contention of the petitioner that at the time of

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rejecting the said application, the counter claim was pending when the matter was before Hon'ble High Court regarding one of the order assessed by the respondent husband. But it is pertinent to note that Hon'ble High Court, more specifically, by order dated 16.11.2022 in writ petition no.12640 of 2022, specifically directed to decide the custody petition and maintenance petition expeditiously, considering the age of minor children and in the interest of justice there directions were given. But it is also pertinent to note that the present petitioner, that means the respondent, at that time she was well aware about the fact that counter claim was pending before the Court and said fact is not mentioned before the Hon'ble High Court by the present petitioner. Therefore, there is no specific directions regarding the expedite hearing of any other case filed thereafter.

9. Admittedly, the petition No. D-58 of 2017 and C-42 of 2017 are pending since last 6 years i.e these are the petitions more than 5 years old and as per action plan of Hon'ble High Court, the said petition needs to be decide expeditiously. The present case is not on stage of hearing. Moreover, on previous date the counselling was completed and matter is pending for filing written statement as on today. In this premises, the said case can not be said to be riped for final hearing. Moreover, the issues are not framed till the date. In addition to that the scope of custody petition and scope of maintenance petition is different than that of the scope of the divorce

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petition under section 13 (1) (ia) of the Hindu Marriage Act, under which present petition is filed by the petitioner. Therefore, this court is of opinion that if at all the present case is clubbed with the old matters, then the old matter is unnecessary dragged and kept lingering under the pretext of various different petitions and various frivolous applications moved by either of the parties in every petition. In this premise, this Court is of considered opinion that in view of the directions of Hon'ble High Court to achieve the goal of minimize old pendency it will be just and proper to decide the petition no. D- 58 of 2017and petition no. C-47 of 2017 filed by husband and wife respectively expeditiously as per directions of Hon'ble High Court and the divorce petition filed by wife bearing no.A-126/2023 filed on 13.01.2023, needs to be decided on it's own merit when it will reached the stage of hearing. At this juncture, the said petition is not ready for hearing. Therefore, it will not be fruitful to all the matters. Moreover, it will create hurdle in the smooth hearing of previous old matters. Therefore, the present application devoid on merit and deserves to be dismissed. Hence, following order is pass:

ORDER

1. Application Exh. 09 is rejected.

2. No order as to costs".

20. The learned Judge in the aforesaid order has rightly observed

that clubbing old matters which have already been directed to be

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disposed of expeditiously along with latest divorce petition filed by

the petitioner would unnecessarily drag even the time bound old

matters. The learned Judge has also referred to the directions passed

by this Court in writ petition No.12640 of 2022.

21. Even before the arguments of the learned Counsel for the

parties are concluded, Mr. Lalwani put forth a proposal by placing

on record draft consent term. A copy of which has been tendered

to the learned Counsel for the petitioner. Sufficient time was

granted to the learned Counsel for the petitioner to consider the

same in view of her anxiety for disposal of all the pending petitions.

However, on the next date, the learned Counsel for the petitioner,

on instructions, turned down the proposal without assigning any

cogent and justifiable reason. The draft consent terms are

reproduced below;

"1. The petitioner and Respondent's marriage was solemnized on 15th December, 2005 as per Hindu Rites and ceremonies. The Petitioner has filed a Petition bearing reference number A - 126 of 2023 before the Hon'ble Family Court, Mumbai. The Petitioner and Respondent herein, agree to convert the said Petition to a Petition for divorce by Mutual Consent under section 13B of the Hindu Marriage Act 1955 and therefore, a decree of divorce be granted accordingly.

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2. With regards to the other two Petitions filed between the parties bearing number D-58 of 2017 and C-42 of 2017 pending before the Hon'ble Family Court, Mumbai. It is agreed and understood between the parties that the issues in those two proceedings shall remain open for the Hon'ble Family Court to decide on merit, in line with the time frame vide order dated 16th November 2022 passed by this Hon'ble Court".

22. If both the petitioner and the respondent seek divorce then

there should have been no reason for the petitioner-wife not to

convert her petition No. A-126 of 2023 into petition for divorce by

mutual consent under section 13-B of the Hindu Marriage Act,

1955. The Petitions bearing No. D-58 of 2017 and C-42 of 2017

would have proceeded further on merits in line with the time frame

fixed by this Court vide an order dated 16th November, 2022

passed in writ petition No.12640 of 2022.

23. It does not require any special verdict as to who is intending

to thwart expeditious disposal of pending petitions before the

Family Court, despite specific directions which came to be issued in

the aforesaid writ petition by this Court. Paragraphs 7, 8 and 9 of

the order passed in the said writ petition read thus;

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"7. The main apprehension of Mr. Lalwani is that the passport facility may be misused by removing the children from the jurisdiction of the Family Court. The Family Court has taken adequate care to ensure that the passports are not misused. Further, the application has been made by the respondent-wife for traveling abroad which obviously will be decided by the Family Court after obtaining suitable response from the petitioner-husband. In the interest of justice, I request the Family Court to decide the pending applications for interim maintenance and interim access as expeditiously as possible and preferably within a period of four (4) months from today.

8. Further, considering that the age of the minor children are now 14 years and 9 years, in the interest of justice, the Family Court is directed to decide the Custody Petition No. D- 58 of 2017 as expeditiously as possible and preferably within a period of one (1) year from November 21, 2022 when the parties are directed to appear so as to enable the Family Court to fix further schedule of the hearing. It is also necessary to direct the Family Court to decide the Maintenance Petition No.C-42 of 2017 filed by the respondent-wife along with the Custody Petition.

9. Mr. Lalwani assures that the petitioner- husband will co-operate in view of the adequate safeguards provided for renewal of the passports".

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24. I am afraid, the argument of Ms. Irani is required to be

accepted with a pinch of salt, for, petitioner cannot be permitted to

subterfuge in light of the facts and attending circumstances stated

hereinabove. The powers of this Court under Article 227 of the

Constitution of India are discretionary and are required to be

exercised very sparingly on equitable principles. The supervisory

jurisdiction can be exercised to keep the Courts and Tribunals

subordinate to the High Court "within the bounds of their

Authority". There are catena of decisions of the Hon'ble Supreme

Court to this end. This Court in exercise of it's supervisory

jurisdiction cannot convert itself into a Court of appeal and indulge

in re-appreciation or evaluation of evidence or correct errors in

drawing inferences or correct errors of mere formal or technical

character.

25. A well-known decision of the Hon'ble Supreme Court in the

case of Shalini Shyam Shetty and another Vs. Rajendra Shankar

Patil, (2010) 8 Supreme Court Cases 329 elaborates the powers of

the High Court under Article 226 and 227 of the Constitution and

when such powers can be exercised.

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26. Corollary of the aforesaid discussion is that, the order

impugned does not warrant interference under Article 227 of the

Constitution of India. Nevertheless, it was expected of the learned

Judge of the Family Court to assign reasons before rejecting the

application by passing a one line order.

27. Having regard to the aforesaid discussion, the petition

deserves to be dismissed but not without saddling some costs upon

the petitioner. The petitioner shall deposit costs of Rs.25,000/- with

the High Court Legal Services Authority within six weeks from

today. Petition is dismissed. Rule is discharged.

28. List the petition for compliance on 19th June, 2023.

[PRITHVIRAJ K. CHAVAN, J.]

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