Gujarat High Court
Sejal Dipan Dave vs Dipan Manharlal Dave on 25 October, 2021
Bench: J.B.Pardiwala, Niral R. Mehta
C/FA/3079/2021 ORDER DATED: 25/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3079 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/FIRST APPEAL NO. 3079 of 2021
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SEJAL DIPAN DAVE
Versus
DIPAN MANHARLAL DAVE
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Appearance:
MR ND NANAVATY, SENIOR COUNSEL for NANAVATY
ADVOCATES(1373) for the Appellants
for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 25/10/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
ORDER IN FIRST APPEAL :
1. This Appeal under Section 19 of the Family Courts Act, 1984 (for
short 'the Act of 1984') is at the instance of the original plaintiffs and is
directed against the judgment and decree passed by the Family Court,
Bhavnagar in the Family Suit No.184 of 2015 instituted by the appellants
herein (original plaintiffs) for dissolution of marriage and a decree of
divorce, whereby the Family Court dismissed the Family Suit.
2. We take notice of the fact that the appellant No.1 and the
C/FA/3079/2021 ORDER DATED: 25/10/2021
respondent are husband and wife. The appellant No.2 is the minor
daughter born in the wedlock of the parties. The Family Court framed the
following issues vide Exhibit-5 :
"(1) Whether the petitioner proves that the opponent has treated
her with cruelty ?
(2) Whether petitioner proves that the opponent has deserted
her for a continuous period for more than last three years
and there is no co-habitation between them for more than
last three years ?
(3) Whether petitioner is entitled to get the decree of divorce as
prayed for ?
(4) What Order or Decree ?"
3. The aforesaid issues came to be answered as under :
"(1) In Affirmative
(2) In Negative
(3) In Negative
(4) As per final order."
4. Thus, it appears that although the first issue as regards the cruelty
C/FA/3079/2021 ORDER DATED: 25/10/2021
came to be answered in the affirmative i.e. in favour of the appellant No.1
herein, yet the suit came to be ultimately dismissed, prima facie on the
ground that few material facts were not disclosed by the appellant No.1 in
her plaint. We also take notice of the fact that in the Family Suit No.184
of 2015, the appellant No.1 preferred an application Exhibit-7 under
Section 26 of the Hindu Marriage Act. By filing the application Exhibit-7
under Section 26 of the Hindu Marriage Act, the appellant No.1 prayed
for permanent custody of her minor daughter 'Nia'. The said application
also came to be rejected by the Family Court while passing the final
judgment and decree.
5. Being dissatisfied with the aforesaid, the appellants are here before
this Court with the present Appeal.
6. We have heard Mr.N.D. Nanavaty, the learned Senior Counsel
appearing for the appellants.
7. ADMIT. Issue Notice of admission to the respondent returnable on
17.1.2022. The notice shall be served through Speed Post RPAD as well
as by Air-Mail. If the appellant No.1 has E-mail ID of the respondent,
then we permit service of notice also by way of E-mail.
C/FA/3079/2021 ORDER DATED: 25/10/2021
ORDER IN CIVIL APPLICATION :
Issue Notice returnable on 17.1.2022.
The custody of minor Nia i.e. appellant No.2 shall remain with the
appellant No.1 i.e. her mother till the final disposal of this Appeal.
(J. B. PARDIWALA, J)
(NIRAL R. MEHTA,J)
V.J. SATWARA
