Gujarat High Court
Chandrikaben Hargovinddas ... vs Jaiprakash Nareshbhai Joshi on 4 August, 2022
Bench: Umesh A. Trivedi
C/FA/1932/2019 ORDER DATED: 04/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1932 of 2019
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CHANDRIKABEN HARGOVINDDAS PARMAR W/O JAYPRAKASH
NARESHKUMAR JOSHI
Versus
JAIPRAKASH NARESHBHAI JOSHI
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Appearance:
MR SAMIR AFZAL KHAN(3733) for the Appellant(s) No. 1
MR BHUNESH C RUPERA(3896) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 04/08/2022
ORAL ORDER
1. Heard Mr.Samir Afzal Khan, learned advocate for the
appellant-wife as also Mr.Bhunesh C. Rupera, learned advocate
for the respondent-husband.
2. This appeal is filed under Section 47 of the Guardian and
Wards Act, 1890 challenging order passed by the learned Judge,
Family Court No.3, Ahmedabad dated 21.2.2019 rendered in Civil
Misc. Application No.52 of 2017 whereby, the application
preferred by the wife for custody of minor son' Dhrij' wrongly
stated as 'Dwij' in the impugned judgment and order as
submitted by learned advocate for the appellant, who was then 2
years, came to be refused.
3. Mr.Samir Afzal Khan, learned advocate for the appellant
submitted that considering the age of the child at the time of
filing an application being 2 years in view of Section 6 of the
Hindu Marriage Act, 1956 ordinarily custody of the child should
C/FA/1932/2019 ORDER DATED: 04/08/2022
be handed over to the wife as per the mandate of the statute. He
has further submitted that despite her efforts to get the custody
or visit the child, she has been deprived and no custody was
handed over to her. He has further submitted that the petitioner
is also working woman and she can take good care of child as
she is staying with her parents as also brothers and sisters.
4. Assailing the impugned judgment and order, it is submitted
that now she has settled at Viramgam where she is serving as a
Teacher. Therefore, along with the service, she can take good
care of her child and therefore, custody is to be handed over to
the petitioner-mother of a child.
5. Reading examination in-chief on oath filed by the petitioner
before the Family Court and the cross examination, it is
submitted that no one has attempted from the side of the
respondent-husband to pursue her to join matrimonial home. He
has further asserted that despite ill health of her father neither
husband nor his family member have visited him. It is further
submitted that she was also looking after her son very well
though, at present he is suffering from which ailment, she does
not know as the custody is not with her. Therefore, he has
submitted that in view of the statutory provisions, the custody of
the child 'Dhrij' be handed over to her by allowing this appeal
filed by the appellant.
6. It is further submitted that in her application before the
Family Court she had asserted that custody of the child 'Dhrij'
was snatched away from her. However, admission in the cross
examination is seen, she has clearly admitted that on 16.3.2017,
leaving her son at matrimonial home in the evening that she
C/FA/1932/2019 ORDER DATED: 04/08/2022
went to visit her father as he was ill. However, it is further
submitted that since then, she has not joined her matrimonial
home therefore, claim made in the examination in chief that she
being deserted and deprived of a custody of a child is incorrect.
7. As against that, Mr.Bhunesh Rupera, learned advocate for
the respondent-husband drawing attention to the affidavit in-
reply submitted that as such, she deserted not only the husband
but the child aged 2 years then, has been brought up by the
respondent-husband with the help of his family members. On
16.3.2017 and thereafter, she has never returned to join the
matrimonial life with the respondent-husband. He has further
submitted that despite so many efforts along with the family
members and other relatives to pursue her to join matrimonial
home, she refused to do the same and on the contrary, she
picked up quarrel and filed the complaint against not only the
husband but other family members including relatives, in all 5, in
number under Sections 498A, 323 and 114 of the Indian Penal
Code (hereinafter referred to as 'the Code'), as also under
Sections 3 and 7 of the Dowry Prohibition Act. However, as
submitted by Mr.Rupera, learned advocate for the respondent-
husband except husband, all have been honorably acquitted and
against the conviction of the husband under Section 498A of 'the
Code', appeal is already preferred, which is pending before the
Court.
8. Not only that, she has admitted in her cross-examination
that she has filed a proceedings under the Protection of Women
from Domestic Violence Act, 2005. He has further submitted that
since wife has deserted the child when he was at the age of 2
years, she cannot pray for custody of the same without any valid
C/FA/1932/2019 ORDER DATED: 04/08/2022
reasons as leaving the custody was the voluntary act by her.
Therefore, he has submitted that when she is already serving as
a Teacher and starting his journey at 8.00 O'Clock in the morning
while serving at Viramgam, and on the contrary, better care of
the child would be taken by respondent-husband and his family
members. Therefore, he has submitted that the proper reasons
are assigned by the learned Judge refusing the custody of the
minor child to the appellant-wife and therefore, this appeal be
dismissed.
9. Having heard learned advocates for the appearing parties it
emerges that, the appellant has deserted her matrimonial home
on 16.3.2017 leaving her child at matrimonial home and went to
her parental home from where she has never returned. It was on
a specious plea that her father was not well and therefore, she
had gone there to visit him. But fact remains that, she has never
returned back to join the matrimonial home. Since the age of 2
years child is raised by the husband uptill now, he has more
attachment with the father and mother appears to have not
cared for either having the custody or any attachment for the
custody.
10. At the same time, as recorded by the learned Judge from
Ahmedabad she is commuting to Viramgam for the purpose of
service and leaving home at 8.00 a.m. morning and returned
back at 8.00 p.m. in the evening. Therefore, learned Judge has
concluded that work schedule of the appellant is such that she is
unable to take care of the child in comparison to the work
scheduled of the respondent-husband who is serving at
Ahmedabad and he is available at any moment, in case of need.
At the same time, his parents are also taking care of the child.
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Moreover, one more reason weighed with the learned Judge that
the appellant-wife has a step mother and in all probability, she
may not very well take care of the child and therefore,
considering the paramount interest of the child, learned Judge
has refused the custody to the appellant-mother.
11. Over and above, there is no substance in argument that
the custody of the child was snatched away by the respondent-
father and on the contrary, as admitted by her in the cross-
examination that she left a child at her matrimonial home to visit
her ailing father and since then, not returned back. Not only that,
while refusing the custody of the child in this case as coming out
from the affidavit in-reply filed by the respondent-husband and
not disputed by the learned advocate for the appellant that wife
has been permitted visitation right to the child. Hence, I see no
reason to entertain this appeal and therefore, it is hereby
dismissed. Notice discharged.
(UMESH A. TRIVEDI, J)
ASHISH M. GADHIYA
