Gujarat High Court
Abhishek Kumar Mishra vs Family Court Judge Vadodara (Shri ... on 6 April, 2021
Bench: Ashokkumar C. Joshi
C/SCA/6034/2021 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6034 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1 Whether Reporters of Local Papers may be allowed to no
see the judgment ?
2 To be referred to the Reporter or not ? no
3 Whether their Lordships wish to see the fair copy of the no
judgment ?
4 Whether this case involves a substantial question of law no
as to the interpretation of the Constitution of India or any
order made thereunder ?
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ABHISHEK KUMAR MISHRA
Versus
FAMILY COURT JUDGE VADODARA (SHRI R. C MODI) & 2 other(s)
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Appearance:
PARTY IN PERSON(5000) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 06/04/2021
ORAL JUDGMENT
1. Heard the petitioner Abhishek Kumar Mishra appearing as
party-in-person and learned advocate Ms. Yashma Mathur
appearing on behalf of respondent no.2, at length. At request of
both the sides, the matter is taken up for final hearing today.
C/SCA/6034/2021 JUDGMENT
2. Learned advocate Ms. Yashma Mathur has instructions to
appear on behalf of respondent no.2. Registry to accept the
vakalatnama of learned advocate Ms. Mathur and place on record.
3. During the course of arguments the party-in-person Abhishek
Mishra has agreed that respondent no.1- the Family Court Judge of
Vadodara (Shri RC Modi) and respondent no.3- State (the
Commissioner of Police, Vadodara) be deleted. Registry to delete
their names accordingly.
4. The party-in-person Abhishek Mishra has briefly stated that
even after the directions by the Hon'ble Supreme Court dated
09.03.2021 in SLP(C)3001 of 2021 to decide the application for
custody within three weeks without fail. The competent court i.e to
say Vadodara Family Court, has not decided the issue in time and
therefore, he has approached this Court with the following prayers.
"Ex-parte interim orders be passed:
a. Stay all proceedings at Family Court Vadodara
in the matter of CMA DC/29/of 2021.
b. Grant physical visitation to petitioner as per
order of Supreme Court of India in SLP (C)3001 of
2021.
c. Grant exemption of notarizing this petition and
hear the matter on Very Urgent basis.
Final relief :
a. This Hon'ble Court may graciously be pleased
to allow the writ Mandamus and/or in nature of any
other writ directing Respondent 1, Family Court judge
to decide the application of custody and visitation in 2
C/SCA/6034/2021 JUDGMENT
days, which is in line with order of Supreme Court of
India in SLP (C)3001 of 2021.
b. Direct the respondent no.1 to discharge all
lawyers appointed by all parties as per section 13 of
Family Courts act and appoint an independent and
unrelated Amicus Curiae from Legal Aid Department if
need be.
c. Direct the respondent no.1 to not reverse it s
own order which violated the principle of 'Functus
Officio' and continue case from Ex-parte evidence stage
of petitioner set since 13th August,2020.
d. Direct the respondent no.1 to adhere to
prescribed law of Order VIII Rule 1 of CPC and not
grant illegal gains to respondent no.2 by allowing to file
written statement at the final stages of case.
e. Direct the respondent no.1 to pass daily
relevant speaking and reasoned orders and upload
them online as allowed by Supreme Court of India in
SLP (C) 3001 of 2021.
f. Any other and further relief as this Hon'ble
Court may deem fit."
5. Learned advocate Ms. Yashma Mathur for the respondent
no.2, has opposed the contentions raised by the petitioner and
submitted that no writ is tenable under Article 226 as per settled
principles of law.
6. In the opinion of this Court, whenever there is equally
efficacious remedy is available, in that case, no writ is permissible
under Article 226 of Constitution of India for availing fundamental
rights and in the present case equally efficacious remedy is very
much available to the petitioner, to approach the learned Family
C/SCA/6034/2021 JUDGMENT
Court, Vadodara to ventilate his grievances.
7. At this juncture, learned advocate Ms. Mathur has drawn the
attention of this Court that the learned Family Court, Vadodara has
already passed order below Exh.1, regarding the visitation rights
on 03.04.2021. Therefore, this Court is of the opinion that let that
order be placed on record.
8. During the course of arguments, both the parties have fairly
agreed that let the learned Family Court, Vadodara decide the main
application for custody being CMA-DC/29/ of 2021 in time bound
scheduled. Having said that, the learned Family Court, Vadodara
shall decide the custody application within "three weeks" from
the date of receipt of writ of this order without being influenced by
the order of this Court.
9. The petition stands disposed of with the aforesaid directions,
at admission stage.
(A. C. JOSHI,J)
Radhika
