Abhishek Kumar Mishra vs Ankita Ghanshyamsinh Chauhan
2021 Latest Caselaw 6521 Guj

    C/LPA/409/2021                                CAV JUDGMENT DATED: 21/06/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 409 of 2021
                                     In
                R/SPECIAL CIVIL APPLICATION NO. 6034 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH

and
HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== ABHISHEK KUMAR MISHRA Versus ANKITA GHANSHYAMSINH CHAUHAN ========================================================== Appearance:

PARTY IN PERSON(5000) for the Appellant(s) No. 1 MS. YASHMA R MATHUR(6374) for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH and HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 21/06/2021

CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. The appellant Abhishek Kumar Mishra, party-in-person was the

C/LPA/409/2021 CAV JUDGMENT DATED: 21/06/2021

original petitioner before the learned Single Judge. The learned

Single Judge by an oral judgment dated 06.04.2021 disposed of the

petition of the appellant directing the Family Court, Vadodara, to

decide the main application for custody being CMA - DC/29 of

2021 in a time-bound schedule. The learned Single Judge directed

the Family Court, Vadodara, to decide the Custody Application

within three weeks from the date of receipt of the writ of the order.

This direction has not found favour with the appellant, hence the

appeal.

2. Facts in brief are as under:

2.1 The appellant and the respondent Ankita were married on

24.01.2011. Two daughters named Shagun and Shubh were born

out of the wedlock. Due to marital discord, it appears that the

respondent left the matrimonial home with the daughters. The

appellant-petitioner initially filed Application No.GW33/2020

before the Family Court, Gurugram for obtaining custody of two

daughters. He approached the Supreme Court which by an order

dated 09.03.2021 directed the Family Court to decide the

application filed by the petitioner within three weeks. It further

directed the Station House Officer of the jurisdictional police

station at Vadodara to give an opportunity to the petitioner to meet

C/LPA/409/2021 CAV JUDGMENT DATED: 21/06/2021

and talk to the children for at least two hours on 12.03.2021. The

Special Leave Petition was disposed of.

2.2 By an order dated 23.03.2021, the Court at Gurugram

transferred the application filed under the Guardian and Wards Act

to the Court at Vadodara.

2.3 The appellant-petitioner filed Civil Misc. Application No.29

of 2021 praying for interim custody of the daughters. The Family

Court at Vadodara partly allowed the application and directed the

opponent-mother to bring the daughters Shagun and Shubh to the

Family Court on the 3rd working Saturday of each month so that the

appellant could meet his minor daughters in the Court premises.

This order was passed on 03.04.2021.

3. This order partly allowing the application prompted the appellant-

petitioner to approach this Court by way of the petition so filed

with the prayers as quoted by the learned Single Judge in his order

under challenge. For the sake of brevity, para 4 of the order of the

learned Single Judge wherein reliefs therein are set out, is

reproduced hereunder:

"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

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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 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

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may deem fit."

4. The learned Single Judge disposed of the writ petition with the

directions which we have referred to in the earlier part of this

judgment.

5. We have heard extensively Shri Abhishek Mishra - appellant -

party-in-person. He made the following submissions:

A. That, it is more than a year that the appellant has not been

able to see his daughters Shagun and Shubh due to the respondent's

non cooperation.

B. That despite an order passed on 09.03.2021 by the Supreme

Court, the application for custody has still not been decided.

C. The respondent taking advantage of provisions of Section 13

of the Family Courts Act, 1984, engages advocates which do not

permit the appellant-petitioner to put-forth his case. There is no

provision by which a legal practitioner can be engaged and at best,

only an amicus-curiae can appear.

D. The Family Court has not taken into consideration the

provisions of Order-VIII Rule-I of the Code of Civil Procedure.

C/LPA/409/2021 CAV JUDGMENT DATED: 21/06/2021

E. Shri Mishra has made several assertions regarding the

respondent-wife's personal character and conduct, which we need

not refer to. However, they have been extensively set out in the

memo of the petition.

6. Ms.Yashma Mathur appeared for the respondent-wife. She would

submit that in accordance with Section 13 of the Family Court's

Act, an application being made, as a matter of course, parties are

permitted to engage legal practitioners.

6.1 She has disputed the assertion of the appellant-petitioner that

she is not willing to cooperate in the hearing of the custody

application.

6.2 Ms.Mathur would further submit that in fact, there was no

reason for the appellant to file an appeal when the order of the Trial

Court and that of the learned Single Judge do not adversely affect

the appellant and in fact, they reiterated the directions given by the

Supreme Court as far back as on 09.03.2021.

7. Having heard Shri Mishra party-in-person and Ms.Mathur for the

respondent, we are at pains to observe that the litigious

perseverance of the appellant-petitioner can be gauged from the

history of the litigation post the order of the Family Court dated

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03.04.2021. Despite orders which can in no manner be said to

adversely affect the appellant-petitioner, there is a complete

misdirected focus on repeated petitions before this Court and the

Supreme Court, which is evident from the chronology as under:

i. In an interim application for custody filed before the Family

Court, the Trial Court on 03.04.2021, partly allowed the appellant's

application, wherein the daughters were to be brought to the Court

premises on every 3rd working Saturday at a stipulated time slot.

Despite this, the petitioner approached this Court by filing the

Special Civil Application challenging the aforesaid order.

ii. On 09.03.2021, the Supreme Court directed that the Trial

Court dispose of the Custody Application within three weeks. The

learned Single Judge by the order under challenge gave similar

directions. This order also therefore, does not in any manner harm

the appellant/petitioner. In fact, the learned Single Judge conscious

of the Supreme Court's order gave a direction to the Family Court

as prayed for.

iii. In the current appeal, on 23.04.2021, this Court

(Coram:Hon'ble Ms.Justice Sonia Gokani and Hon'ble Ms.Justice

Vaibhavi Nanavati), passed a detailed order. Paras 2 and 3 thereof

read as under:

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"2. Noticing the directions of the Apex Court issued on 9.3.2021, we direct the meeting of the children, through the video conference, with the petitioner father. Considering present prevalent condition on account of spread of infections due to Covid-19 viruses, the physical meeting and that too, at the premise of Family Court should not be encouraged, however, noticing the specific direction of the highest court of the country, so as to not to deprive the father of the right given to him even in this situation, such meeting shall need to be arranged within one week from the date of receipt of the copy of this order through video conferencing. The Registrar, Family Court shall ensure the tri-partite meeting for about two hours after confirming convenience of both the sides from 3.00 pm to 5.00 pm or any other suitable time to both the sides. Let such a meeting take place in a cordial environment. If any other arrangements for visitation of father, subsequently or in the interregnum, are worked out by the Family Court, they can be given an effect to as well, however, for once, let such a meeting through distant electronic mode be arranged.

3. We have been given to understand that the Family Court is proceeding with the hearing of custody matter which is of course being disputed by the petitioner. Without entering into that debate, on the premises that the directions of expeditious hearing are already issued to be complied with, at an interim stage, let the directions issued by the learned Single Judge following the dictum of the Apex court, be followed. The learned Registrar, Judicial may ensure sending of the writ of this order through e-mode to the Registrar, Family Court."

iv. Even this order was challenged by the appellant before the

Hon'ble Supreme Court. The Supreme Court on 08.06.2021

disposed of the Special Leave to Appeal by directing the Family

Court at Vadodara to decide the matter at the earliest, preferably

within three weeks. The Supreme Court further observed that no

unnecessary adjournment shall be granted by the Family Court at

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Vadodara. We are informed at the bar by Ms.Yashma Mathur that

the hearing is at an advanced stage.

v. Section 13 of the Family Courts Act reads as under:

"Section 13: Right to legal representation.-Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by legal practitioner:

Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.

Reading of the Section itself indicates that though a legal

practitioner as of right cannot appear for a party, we make note of

the submission of Ms.Yashma Mathur learned advocate appearing

for the respondent-wife that the learned Family Court, on an

application being made has granted such an application for the wife

to be represented by a legal practitioner. She has refuted the claim

of the appellant that multiple lawyers are appearing in the

proceeding. We have no reason to disbelieve Ms.Mathur's

submission. There is no complete bar on engaging a legal

practitioner. It is a matter of discretion for the Court to permit

engaging of a legal practitioner which the Family Court in the facts

of this case has thought fit.

vi. As far as Mr.Mishra's submission that the Family Court has

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violated the provisions of Order-VIII Rule-I of the Code of Civil

Procedure, is misconceived. At the hands of the appellant,

directions have been issued to the Family Court to complete the

proceedings within a stipulated time. The Family Court in order to

arrive at a decision, in accordance with law, needs to take care of

the procedural laws which need to be followed and merely because

a misconceived submission is made, it cannot be said that there is a

violation of the provisions of Order-VIII Rule-I, inasmuch as, the

Family Court can lay down its own procedure with a view to arrive

at a settlement in respect of a subject matter of a suit or

proceedings or at the truth of the facts alleged by one party and

denied by the other.

vii. Essentially therefore, despite two orders; one of the Trial

Court and one of the Single Judge in his favour, the party-in-person

Shri Mishra initially filed a petition before this Court, and the

petition was decided with the direction in his favour. He thereafter

approached the Division Bench by way of this appeal. Before

initiating any litigation, even before the order of the Trial Court,

the Supreme Court had directed disposal of his custody application

within a stipulated time period by an order of 09.03.2021. Even

despite an interim order in his favour on 23.04.2021, he approaches

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the Supreme Court once again and by the order of 08.06.2021, the

Supreme Court has reiterated what was observed initially in its

order of 09.03.2021. This is what we mean by the litigious

perseverance, misconceived in nature of the appellant of two

rounds before the High Court and two before the Supreme Court on

an issue which is being taken care of in compliance of the

directions to decide the custody application within a time bound

schedule. The argument of the appellant - party-in-person

therefore, in context of the non compliance of Section 13 of the

Family Courts Act, 1984 and other issues regarding the character

of the respondent so canvassed are arguments which have only

derailed the core issue that is the custody application, which is

otherwise even being taken care of by the Family Court at

Vadodara.

8. We have therefore no other alternative but to dismiss the appeal of

the appellant party-in-person as being a frivolous appeal, misconceived

and misdirected proceedings. The appeal is accordingly dismissed with

no order as to costs.

(VIKRAM NATH, CJ)

(BIREN VAISHNAV, J) ANKIT SHAH