Gujarat High Court
Nilkanth Vikram Trivedi vs Devshri Hemant Kumar Shastri W/O ... on 5 August, 2022
Bench: Umesh A. Trivedi
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8548 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 5611 of 2022
With
CIVIL APPLICATION (FOR MODIFICATION OF ORDER) NO.
1 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 5611 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
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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 ?
======================================
NILKANTH VIKRAM TRIVEDI
Versus
DEVSHRI HEMANT KUMAR SHASTRI W/O NILKANTH VIKRAM
TRIVEDI
Page 1 of 62
Downloaded on : Wed Aug 10 20:29:55 IST 2022
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
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Appearance:
MS MEGHA JANI with MR HRIDAY BUCH(2372) for the
Petitioner(s) No. 1
MR MUKESH PATEL with MR NISHITH M PANDIT(8386) for the
Respondent(s) No. 1
======================================
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 05/08/2022
ORAL JUDGMENT
[1.0] Both these petitions arise out of the common
judgment and order passed by the Judge, Family Court
No.5, Ahmedabad dated 16.02.2022 below Exhs.5 and 22
in Civil Miscellaneous Application No.83 of 2021, and
therefore, they are proposed to be disposed of by this
common order.
[2.0] Special Civil Application No.5611 of 2022 is filed
by Devshri, daughter of Hemantkumar Shastri, wife of
Nilkanth Trivedi, who preferred application, Exh.22 in the
aforesaid Civil Miscellaneous Application filed before the
Family Court raising preliminary issue to dismiss the suit
as also praying restoring custody of daughter 'Dhanashri'
to her. Since her application, Exh.22, is rejected by the
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
impugned common judgment and order, she has preferred
the aforesaid Special Civil Application.
[2.1] Special Civil Application No.8548 of 2022 is filed
by Nilkanth Vikram Trivedi, who has preferred the
aforesaid Civil Miscellaneous Application before the Family
Court, seeking declaration to the effect that he being the
father of the minor daughter, 'Dhanashri', he is entitled to
retain the custody of her and no other person including
the respondent therein has any right to interfere with the
said custody as also further declaration is sought for that
no one should have the visitation rights and he seeks
permanent injunction in respect thereof against the
respondent therein, who is the wife of the petitioner of the
said Special Civil Application. Alongwith the aforesaid Civil
Miscellaneous Application, an application, Exh.5 came to
be filed by the petitioner claiming temporary injunction
restraining the opponent therein or any other person
either to take away the custody or interfere with the
custody of the minor child, which came to be allowed by
the impugned judgment and order injuncting opponent
wife, agent or any other person to take away or interfere
with the custody of child. However, visitation right to
meet minor child 'Dhanshri' on every Saturday of each
calender month from 10:00 a.m. to 5:00 p.m. was given.
Opponent wife was directed to pick up the minor at 10:00
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
a.m. from the residence of the applicant and drop her at
5:00 p.m..
[3.0] For the sake of brevity and convenience in this
order, the parties would be referred to hereinafter as
husband and wife.
[4.0] It is the case of the husband by way of Civil
Miscellaneous Application that he came in contact with the
wife through 'shaadi.com' initially in the year 2010 and
after having preliminary contact they thought of getting
married but because of differences in their thoughts at the
relevant time the said idea was dropped. However, as
narrated in the application filed before the Family Court,
they continued to talk, may be occasionally, over the
mobile phone. As asserted further, the wife insisted for
marriage and since the husband was refusing to marry
her, she wanted to marry someone else. The husband had
permitted her to marry the person of her choice, and
therefore ultimately the wife married a person of the
choice of her family on 20.05.2013. However, within a
short span, she returned back to her parental home and in
the year 2014 she took divorce from her earlier husband.
It is asserted in the application that an application for
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divorce was filed and judgment was pronounced thereon,
which is produced alongwith the Civil Miscellaneous
Application with a separate list. It is further asserted in the
application that the said marriage was performed only
with an intention showing him off.
[4.1] Thereafter it is coming out from the application
that the wife by executing writing, on a stamp paper as
also simple paper, threatened not only her parents but her
brother also by defamatory contents therein. It is further
asserted that on 18.11.2016 and 19.11.2016, the wife filed
an application against her father for the purpose of
maintenance and alleged domestic violence against her
parents and brother and filed criminal case also. The said
case is claimed to be ended in compromise on 11.01.2017.
It is asserted by the husband in the application that such
conduct of the wife reflects her mental disease, and
therefore, in the marriage invitation card of her brother,
neither her name was reflected in it nor she was invited
for the said marriage. It is asserted in the said application
that her mental disease reflects mental disorder. She took
treatment on 10.02.2018 in Columbia Hospital,
Ahmedabad and had consultation with psychiatrist of the
said Hospital. Since her disease was found to be serious,
she was examined on 14.02.2018 in the Government
Hospital for mental health and an opinion /report
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
describing mental disorder of the wife is also annexed with
the application. As further asserted, thereafter she took
cudgles with her own brother and sister-in-law, which
ended in police complaint as also FIR against her and
family members. Because of such behaviour, the parents
of the wife, by way of public notice in a newspaper
published that they fear threat to their life from the wife
and her associates. It is further asserted that because of
all these reasons, the wife informed the husband that she
wants to end her life and since she has no family she has
no interest to live. She being prevented from ending her
life by the husband, she insisted the husband to marry
her, and therefore, showing mercy on her and with a view
to save her life, he and his family agreed for the marriage,
which took place on 09.12.2018. Out of the wedlock, wife
delivered a female child, 'Dhanashri' on 05.10.2019 at
Petlad. It is further asserted in the application by the
husband that she is suffering from impulsive mental
disease. It is asserted that she neglected the upbringing of
the child since beginning and she stopped feeding the
child under the misbelief that mother gets older by
feeding the child within 15 days of the birth of the child. It
is further the case of the husband that in the month of
January, 2020 she alongwith the child joined the company
of the husband in his family and started residing with the
parents of the husband. As claimed in the application,
husband came to know for the first time that when she
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
was staying at Petlad since then she has a habit of making
Tik Tok and youtube videos and for the purpose of
preparing videos she did not sleep from 10:00 p.m. to 4:00
a.m. and used to change clothes in order to prepare /shoot
videos. It is asserted that she used to make five to seven
Tik Tok videos in a day and thereafter she used to sleep.
Therefore, it is alleged in the application that her time to
go to bed would be early in the morning and she never
used to do the domestic work in the house in the morning.
It is further asserted that the wife has failed to nurture the
daughter, though of a tender age. In short, it is alleged
that to bring up a tender age child, instead of biological
mother, mother of the husband had to do the same
alongwith the husband and the wife has failed to perform
her duties as a mother towards the child. It is further
asserted that because of her such behaviour, she was
made to understand that it may affect the child when she
grows up and the future of the child would be ruined.
Despite such persuasion, wife did not improve and on the
contrary started behaving badly towards the husband as
also the mother of the husband, which disturbed the
atmosphere in the house. It is further asserted that after
she joined the company of the husband and started
residing in the joint family with the parents of the
husband, she did not stop her late night activities, as
aforesaid, and during that time there was lock-down
because of corona. Despite repeated efforts by the
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
husband, she did not improve and as and when lock-down
was opened and permission to leave the city was granted,
on that very day, wife alongwith the daughter,
'Dhanashri', went to her parental home Petlad and stayed
there about three months. Thereafter, it is asserted that
despite repeated request to her to join the company of her
husband and his family, she declared that she does not
wish to stay in a joint family and wants to stay separate,
and therefore, the husband alongwith the wife started
staying in a separate flat owned by his maternal aunt so
as to avoid conflicts with the parents in the month of July,
2020. It is further asserted that while staying separate
also, the wife continued to engage herself in making
youtube and Tik Tok videos and was ignoring the daughter
and did not give milk or food on time. It is further asserted
that since the day she came from Petlad, all required care
of daughter was being taken by the husband, and
therefore, the daughter has attachment towards him and
she raised her hands from looking after the child. As
further asserted in the application, on 15.12.2020, when
the wife was at her parental home, Petlad some unknown
persons got enraged because of the youtube videos
uploaded by her, they attacked the wife for which she had
gone to the Police Station for giving a complaint where the
concerned Police Inspector at Petlad Police Station after
looking at youtube videos told her that you invited the
assault because of such videos. Since wife had given
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
complaint in the very same Police Station against her
parents initially, at that time, they did not register any
complaint, and therefore, wife had complained to the
Superintendent of Police, Anand by communication dated
25.02.2020 against Police Inspector of Petlad Police
Station. It is further asserted that in a case filed against
her brother, at the instance of his wife, since her brother
failed to deposit the amount of maintenance, there was a
warrant issued against him where wife filed an affidavit
dated 15.04.2021 wherein she has admitted her misdeeds
in past and copy of such affidavit is also produced
alongwith the application. It is further asserted that
because of her such behaviour she was persuaded by the
husband, time and again, to improve but on the contrary
she was threatening to commit suicide alongwith her
daughter. If she is prevented from making videos, she
would threaten to jump from the terrace with her
daughter. It is further asserted in the application that she
can do the same looking to her nature, and therefore, the
husband kept mum on the said topic. It is further asserted
that because of the youtube videos getting praises and
appreciation, since last two to three months, she came in
contact with some criminals of Bengal /Bihar and she used
to receive many calls. Over and above that, as asserted in
the application, she was invited by one Swami
Jeetendranand Saraswati of Mumbai, who is known of
making offending videos on youtube platform, inviting her
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
for a speech or a group discussion on the youtube and she
readily participated in the same. The screenshot of that
video was also produced with the application. As further
asserted in the application because she was professing
Hinduism, since last about one month she joined 'Uttar
Pradesh Vishwa Hindu Mahasangh' situated in Jaunpur
area of Uttar Pradesh. According to the husband, she was
offered the highest post of political level if she stays and
resides in Ashram at Uttar Pradesh and she was made
President of Gujarat Mahila Morcha. The photographs
thereof is also produced alongwith the list. It is further
asserted that it is clear from the photographs that she did
not like him to be known as her husband as in those
photographs instead of his name she has mentioned the
name of her father. Since she has been assured of
attractive post in the said Ashram, husband feared that
she may, without the consent and informing him, go to
some unknown place alongwith the child. It is further
asserted in the application about the provisions of the
Hindu Minority and Guardianship Act, 1956 (hereinafter
referred to as 'the Act, 1956') as also the Guardians and
Wards Act, 1890 (hereinafter referred to as 'the Act,
1890') and the provisions made therein. Alongwith that it
is further asserted that if even visitation right is granted,
there may be adverse effect in the mind of the child, who
is aged about two years, which may affect her future. In
the application, the husband has described the wife as
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
cruel, and therefore, he claims custody of daughter
'Dhanashri', which disentitles the wife for the same
because of her nature. It is further asserted that she used
to talk in abusive language with her youtube as also
Instagram associates and the daughter may be under that
influence to speak abusively, who is aged about two years.
It is further asserted in the application that the wife used
to smoke in the presence of the child as also used to drink
liquor. It is further asserted that such a behaviour of wife
adversely affects the daughter 'Dhanashri', and therefore,
the husband claims that he used to sit in a separate room
or used to take her for outing. It is further asserted that
when she was being attempted to be prevented from
smoking or drinking liquor, she used to get angry and
used to beat him as also the child. Such a behaviour of the
wife, as asserted, is almost routine and husband fears
physical damage of his child also. It is asserted that such
behaviour is also recorded in the video DVD and is
produced alongwith the list. It is further asserted that
because of frequent threats of taking away the child,
'Dhanashri' and permanently settling at Ashram of Uttar
Pradesh, as aforesaid, which has continued since last 15
days, it has compelled the husband to file the application
seeking declaration and permanent injunction. Thereafter,
the husband has narrated in his application several
reasons to justify the custody of his daughter and denial of
visitation rights to the wife almost repeating what is
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
earlier stated and elaborating her actions in video clips
uploaded on youtube. There are several instances
narrated that she used to show in lower esteem not only
the high ranking political leaders but also the respected
national level leaders, and therefore, the husband has
filed the aforesaid application as if he is filing the suit and
praying for an injunction in the said suit.
[4.2] If the application is seen, it is running into
almost 30 pages alongwith Exh. 5 application of similar
pages as also list and documents running into several
pages presented on 04.08.2021, that too, in the drop box
of the Family Court, which was opened by it on
05.08.2021. As coming out from the record by way of an
affidavit dated 04.08.2021, the husband claimed custody
of daughter, 'Dhanashri' and mentions that he has filed an
application for retaining the custody and restraining the
opponent - wife not to interfere with the same and to that
effect he has instructed his lawyer and the said application
has been prepared on the basis of his instructions. The
said affidavit appears to be affirming the contents of the
application tendered before the Family Court, which runs
into 23 paragraphs, which has been read by him and he
accepts the contents thereon. On that very day, as
recorded by the Family Court No.5 where the case was
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transferred after opening the drop box by the Judge,
Family Court No.2, he read the application alongwith the
main application for injunction, perused the papers and
photographs and heard the applicant and his advocate on
that day, and thereafter, he directed the parties to
maintain status-quo regarding custody of minor
'Dhanashri' till the returnable date.
[5.0] The wife on being served with the summons
/notice vide application Exh.22 dated 08.09.2021
submitted preliminary objection praying for vacating ex
parte order of injunction dated 05.08.2021 and claimed
restoration of the custody of daughter, 'Dhanashri', who
was taken away by deceitful means by the husband prior
to obtaining ex parte injunction order dated 05.08.2021.
Not only that, on the said application, learned advocate for
the wife endorsed that it be heard alongwith the injunction
application, Exh.5, and therefore, both the applications
came to be decided by the common judgment and order,
as aforesaid.
[5.1] However, the wife has submitted written reply to
the main application preferred by the husband on
28.09.2021 vide Exh.27. It is claimed in the reply that the
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husband has no legal right to file the such application
against the wife, claiming in the application paragraph
24A that he being the father of the child, he is also having
a right to custody. It is further asserted that the child was
never in exclusive custody of the husband either on the
date of the application or before it so as to retain the
same. According to her assertion, it was a joint custody
alongwith the husband and both have equal right to the
custody. Thus, it is claimed that any prayer sought for
under the provisions aforesaid has become infructuous
and it is not maintainable.
[5.2] It is further asserted that since the child is below
5 years, according to the provisions of 'the Act, 1956',
ordinarily custody of the child remains with the mother,
and therefore, it is asserted that the application preferred
by the husband is not maintainable and is liable to be
rejected.
[5.3] It is further asserted that since the husband and
wife were staying together and had joint custody over the
child, nobody has a right to file any application just like a
suit for declaration depriving custody of child from other. It
is further asserted that alongwith the child both the
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
husband and wife were staying together happily and there
was no dispute in between them. There was no any legal
proceedings initiated prior to the present one initiated by
the husband.
[5.4] There is vivid narration about daily routine dated
03.08.2021, 04.08.2021 as also 05.08.2021 seen in reply
how and in what manner the application aforesaid came to
be filed alongwith an injunction application a day prior to
the consideration thereof and how the husband took the
daughter under the guise of presenting her before the
High Court for obtaining some scholarship befooling the
wife. According to her assertion in the reply, fraudulently
under the guise of taking her to High Court for the purpose
of scholarship, custody of child was obtained and
presented before the Family Court to establish that he is in
exclusive custody of the child and obtained the ex parte
injunction. It is further asserted that neither on the date of
the application nor prior thereto the husband had the
exclusive custody of the daughter, 'Dhanashri', and
therefore she has requested to set aside the order passed
on interim injunction application and restore the custody
of daughter, 'Dhanashri' to her considering the interest of
the child. It is further asserted in the reply that the
husband has not come before the Court with clean hands
and has suppressed important /material facts and diverted
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the core issue in the case, and therefore also, no
discretionary order like injunction in such case is required
to be exercised in favour of the husband. It is further
asserted that by fraudulently obtaining custody with a
deceitful means of the daughter 'Dhanashri' she is
deprived of love and affection of a mother, which is all the
more required at this tender age.
[5.5] It is further asserted in the reply that the
husband is legal expert and a practicing lawyer and his
father is also a leading lawyer and is aware of legal
encumbrances, legal maneuvering as also provisions of
law. She has also asserted that they were in contact since
2010 and since they have married after a matured
decision against the wish of parents of both the sides,
their ego is hurt and with a view to fulfill their ego, they
started playing their cards. Since the husband is an
advocate by profession, as asserted in the reply, has
projected imaginary, illusionary picture of the wife with a
sole object to snatch away or retain the custody of
daughter 'Dhanashri' and for the purpose, he has relied on
several photographs, privileged communication between
husband and wife. At the same time, she has firmly
asserted that the literature published on social media,
print media or any other medium were solely with the
express consent, scripted and directed by the husband
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
with a view to create an evidence against her. He has
prepared an artificial story to project his own opinion,
presumptions, assumptions and guess work based on
colourful table stories, which is reflected in the aforesaid
materials. She has further stated that the husband has not
only breached the trust of the wife but it has been done
only with a view to deprive her of the legitimate custody
of the daughter 'Dhanashri', who is less than 2 years at
the time of filing of the application.
[5.6] So far as details dated 05.08.2021, as narrated
in detail in reply, it is asserted that at 11:45 a.m. the
husband took the daughter 'Dhanashri' with him and
thereafter switched off the mobile. Despite trying repeated
phone calls and contacting his father also, he was
disconnecting her phone and not talking to her. That
compelled her to contact her mother-in-law and she also
disconnected the phone repeatedly, and therefore,
doubting something strange and unusual thing she went
to her in-laws house but it was locked, and therefore, from
there at 2:32 p.m. she contacted the Police Control Room
because of which van from Satellite Police Station came
there and recorded a janvajog entry. As further asserted in
the reply, at about 5:45 p.m. father of the husband came
to the Police Station and informed the competent Officer
on duty that no offence is required to be registered for the
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same as custody of the daughter 'Dhanashri' is with them
and Court has given injunction in their favor. It is further
asserted by the father of the husband that if at all the wife
has anything to represent she may come to the Court on
17.08.2021 and the said injunction order would be served
on the next day. Thus, Police did not do anything over the
said janvajog entry by her. Because of such behaviour, as
asserted in the reply, she was under a great shock and on
the next day she received notice /summons and papers
therewith, which led her to enquire in the house and she
came to know that not only the husband took away the
custody of the daughter 'Dhanashri' by deceitful means
but alongwith her, Mamtacard, precious ornaments
received by the daughter on her birth form both the sides
were also missing. The detailed description is not
necessary here, suffice it to say that she is not only
deprived of the custody but the ornaments of the
daughter also. As asserted in the reply, not only that, on
10.08.2021 her parents in law filed a suit in the City Civil
Court, being Civil Suit No.931 of 2021 alongwith an
injunction application praying in it restraining the wife to
enter the matrimonial house, which came to be granted on
18.08.2021. She has repeatedly prayed therein to restore
the custody of daughter 'Dhanashri', which is obtained by
deceitful means and thereafter obtained an injunction in
respect thereof. So far as documents produced alongwith
the list, to certain documents, there may not be any
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comments to offer but the documents produced at item
No.22 with regard to the Hospital, she was surprised to
know that the said papers are sensitive and confidential
and kept in the Hospital for the purpose of treatment of
patients and the response of the treatment in it and it is
an internal private record of the Hospital and no one is
entitled to the copy thereof, how husband could produce
it. It is further asserted in the reply that no explanation is
offered in the application how he came in possession
thereof either in the application as also in the affidavit
tendered with regard to the same. As asserted, no such
documents are even furnished to either the patient or
their relative and they are not to be taken out of the
Hospital. Therefore, she went to the Hospital from where
such documents are issued and showed it to the Doctor on
duty and the Doctor on duty told her that these are
confidential papers and how it came in your possession.
The Doctor on duty has further informed that such
documents are neither provided to the patient nor to their
relatives from the Hospital and such papers are never
produced in the Court and told that there are chances
that it might be stolen papers, and therefore, she needs to
contact the head of the Department, Gujarat Medical
Council as also National Medical Commission by way of
complaint, if any, and therefore, it was requested that the
documents produced at Item No.22, which is a medical
record cannot be accepted or given a mark and cannot be
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
read to determine any of the issues.
[5.7] However in sur-rejoinder affidavit filed before
the Court below, she has narrated that Head of the
Department Hospital for Mental Health, Ahmedabad
complained about the medical case papers and production
thereof through written complaints dated 09.09.2021,
18.09.2021 and 24.09.2021 and as referred to in the sur-
rejoinder affdavit, it is replied through the written
communication by the Medical Superintendent Hospital for
Mental Health, Ahmedabad, they inquired about the
papers, drawn attention and stated that they have original
case papers in their custody and the papers submitted by
her mismatched with the original case papers.
[5.8] It is further asserted in the reply that whatever
allegations are levelled by the husband with regard to the
mental disease for mental perversity are all false and
imaginary and created by the husband. She has further
asserted that all those allegations are required to be
proved alongwith legal support thereto. The documents
produced with the list at Item No.22 those are confidential
papers of the concerned Hospital, which are not allowed to
be taken out of it and how the husband was in possession
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
thereof is neither mentioned in the application nor in the
injunction application.
[5.9] So far as several other documents are
concerned, which relates to litigation between third parties
having no concern with the present case, they are not to
be considered. So far as other documents in the nature of
photographs produced from electronic media, you tube etc
is not supported with any certificate issued under Section
65 (B)(C) of the Indian Evidence Act, 1872. Thus, those
documents also cannot be taken into consideration for any
purpose in view of the decision of the Supreme Court. It is
further asserted in the reply that looking to the whole
application as also injunction application, there is nothing
mentioned by the husband that since what date custody of
daughter 'Dhanashri' is with him. It is further asserted
that the day on which such application is preferred before
the Family Court and even till the next day up to morning,
all the three where under one roof staying together and
despite that since what date they separated is also not
mentioned in the application or even the injunction
application. It is further asserted that the husband has no
cause of action to file such application either mentioned in
it or even attempted to be projected.
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
[5.10] It is further asserted in the reply that
anything, which is not specifically admitted in it of the
assertions and averments made in the application as also
the injunction application, are specifically denied, and
therefore, no presumption should be raised in respect
thereof. It is further asserted in the reply that she is hail
and hearty, not suffering from any mental disease as
claimed. Her behaviour and conduct is normal.
[5.11] She has claimed that she is Master of Arts,
having degree in Bachelor in Physical Education with gold
medal. She was also selected as Lieutenant in Indian
Army in 34 SSB Allahabad. Not only that, she has
represented the State of Gujarat in Judo Championship
thrice and has ability to take independent decisions to
achieve her goal towards life. She has threadbare denied
as also replied the allegations and assertions made in the
application as also the injunction application. In short,
each allegations are specifically denied and replied in her
reply. Not only that, to the application running into 30
pages, she has filed reply to each allegations separately
and the same is running into 35 pages.
[6.0] Ms. Megha Jani, learned advocate for the
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husband, submitted that since the wife is living in
irresponsible, reckless way, she is not able to take rational
decisions, does not possess the discretion to distinguish
the right from the wrong and is also not able to perceive
danger to herself and to those around her. In support of
said arguments, she has relied on various documents,
including video in a CD/DVD alongwith still images
produced alongwith the petitions. Based on such
photographs /still images, it is submitted that wife used to
provoke people to use knife in a way that would cause
death of the victim. It is submitted that the videos shows
the wife enticing people to tear the Constitution, enticing
people to kill Muslim accused when they come to Court
to seek bail showing no respect in legal process. She has
further submitted that looking at the contents of the
videographs it can be seen that she interacts with self
proclaimed religious leaders using abusive, provocating
and improper language.
[6.1] She has further submitted that the wife sent a
parcel of male contraceptives to a lady Judge and boasted
about the same in various interviews in respect of her
that act. It is further submitted that she used to party
recklessly disregarding the well being of the minor
daughter 'Dhanashri'.
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
[6.2] Referring to all those documents and averments
made in the application filed before the Family Court, it is
submitted that she can go to the extent of filing of
proceedings against her own parents and other family
members and alongwith other activities as narrated in it
there is a diagnosis from the Hospital for Mental Health,
Ahmedabad that she is suffering from borderline
personality disorder, and therefore, it is submitted that the
wife is not able to take care of herself then where is the
question of taking care of the minor daughter 'Dhanashri'.
Whereas, it is further submitted that, the husband is a
practicing lawyer living with his parents taking care of the
child successfully. Since the filing of the application before
the Court concerned and as asserted in that it is
established on record that even before filing of the
application it was the husband who was looking after the
daughter 'Dhanashri' as the wife was busy recording
number of videos throughout the night.
[6.3] It is further submitted that the wife has not
alleged anything against the husband that he is unfit or
incapable of taking care of the child.
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
[6.4] It is further submitted that the application is
filed before the Family Court for declaration and
permanent injunction to the effect that the father is
entitled to the custody of the minor child 'Dhanasri' and
for permanent injunction restraining the mother from
taking custody of the minor child over and above
restraining her from exercising visitation rights. It is
further submitted that the father is also the guardian of
his child and in view of Section 6 of 'the Act, 1956' the
custody of the child below 5 years is ordinarily with the
mother and in view thereof, the only course open to the
father was to file a suit for declaration and permanent
injunction. It is further submitted that the husband has a
genuine apprehension that the wife will run away to an
unknown location with the child, that too, in a condition
where she herself is incapable of perceiving danger to her
life, and therefore, exercising any discretion to take a
prudent decision protecting welfare of the child, the
husband filed Civil Miscellaneous Application before the
Family Court on 04.08.2021 and pressed for injunction on
05.08.2021. Thus the same is justified and was the only
course available to the husband considering the facts and
circumstances and the welfare of the child. It is further
submitted that the prayer made by the husband is
required to be granted in view of the fact that all the
recordings, videos, photographs and medical papers,
which are produced on record, are not disputed by the
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
wife. It is further submitted that she has not denied
existence of such material, and therefore, when the facts
and circumstances of such material is not denied, order as
prayed for is required to be granted. It is further
submitted that the wife has made a feeble attempt to
explain few videos, photographs and medical reports
alleging that medical papers have discrepancies and that
videos were under the direction of the husband and the
father of the husband has since then reconciled with her
and the parties were organized at home with friends and
she has been duped and induced by the husband.
[6.5] It is further submitted that the medical papers
produced by the husband, as submitted by the learned
advocate, are those that the husband chanced upon while
looking for vaccination related documents of the minor. It
is further submitted that the wife has not denied that she
was examined by the Doctor at Hospital for Mental Health
Ahmedabad on 14.02.2018. It is further submitted that
the documents received from the Hospital for Mental
Health Ahmedabad under the RTI produced by the
husband and the wife as well, are identical. It is submitted
that on conjoint reading, the papers produced by the
husband as also the wife, there is no denial that the wife
was examined by the hospital on 14.02.2018 and pscycho
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
diagnostic report was signed by the Doctor on 06.03.2018
and the said report was given to her on 07.03.2018.
[6.6] It is therefore submitted that the case of the
husband qua the medical reports is at the most to the
effect that there is discrepancy in two sets of medical
papers and about raising suspicion on the source from
which the husband could have got the papers and not of
denying the existence of the reports. However, as
submitted further, veracity of medical reports in any case
would be decided during the course of trial. It is
vehemently submitted that there is sufficient material on
record taking only the medical papers produced by the
wife into account to prima facie establish that she is
diagnosed with borderline personality disorder. It is
further submitted that, as asserted in the written
arguments, certain documents are produced with a list of
documents without any corresponding foundation in
pleadings. It is further submitted that the factum that the
parents of the wife issued public notice is an admitted
and undisputed fact. It is asserted that the wife has
strained relations with her parents, and therefore, the
affidavit of her father dated 21.02.2022 is after the date of
the impugned order, which was not produced before the
trial Court, is an afterthought and needs to be discarded
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
only on that account. It is further submitted that after
passing of the impugned order dated 16.02.2022, it is
stayed for a month by the Family Court vide order dated
18.03.2022. The husband filed an application for
extension of stay and also filed for modification of the
order dated 15.03.2022. The wife moved this Court by
filing Special Civil Application No.5611 of 2022 on
21.03.2022. This Court heard the parties in Civil
Application No.1 of 2022 for vacating the aforesaid order.
It is vehemently submitted that the parties arrived at
consensus regarding visitation rights and agreed that on
26.03.2022 the husband will take the child to the office of
the advocate of the wife. It is submitted that since then
the visitation have taken place once every week, as
mutually agreed.
[6.7] It is further submitted that the impugned order
is a well reasoned order considering the video,
photographs, medical reports, estranged relationship with
her parents, capability of the husband in looking after the
child in his sole custody, and therefore, it does not call for
any interference except as challenged in Special Civil
Application filed by the husband restricting visitation right
of the wife under supervision.
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
[6.8] It is further submitted that the material on
record establishes that the mother is not in a position to
look after the child single handedly and is not able to
exercise discretion correctly and is in habit of being
reckless, and therefore, it is submitted that the strong
prima facie case is established to retain the custody of the
minor child to the father. Considering the tender age of
the minor, who is only around two years, the child herself
would not be able to even understand if she is in danger
or is being taken away. Thus, the visitation rights, if any,
to the wife be granted only under supervision in a public
place. It is further argued that wife has been meeting the
child at Children room at Family Court, Ahmedabad since
April. The Children's room is so designed that it makes a
child comfortable, is air conditioned, gives privacy. It is
further submitted that giving visitation right to wife in
Children's room in a Court is not unknown. For the same,
reliance is placed on a decision in the case of DSG Vs.
AKG reported in 2020 (12) SCC 248, and it is asserted
that the visitation right at the Children's room may thus be
continued. At the end, it is submitted that the petition
filed by the wife is required to be rejected in toto and the
petition filed by the husband be partly allowed so as to
restrict the visitation rights granted by the trial Court
directing it to be done only under the supervision and that
too in the Children's room at the Family Court.
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
[7.0] As against that, Mr. Mukesh Patel, learned
advocate with Mr. Nishith M. Pandit, learned advocate for
the wife, submitted that each and every allegation,
assertions, imputations made in the application filed
before the Family Court has been threadbare replied
explaining such imputations. However, according to the
submission, the learned Judge has not considered her
reply while passing the impugned order.
[7.1] Mr. Mukesh Patel, learned advocate for the wife,
submitted that for retaining the custody of the child, the
husband has relied on the so called medical case papers
and the report, which is already under a cloud because of
receipt of documents under Right to Information
application and appropriate complaint in respect thereof
has already been filed to the Gujarat Medical Council as
also National Medical Commission and to the Hospital
itself and they are inquiring into the same. However, the
preliminary reply from the Hospital concerned, which is
already dealt with in sur-rejoinder affdiavit by the wife in
the Court below, suggested that the documents produced
in the Court and available in their record does not match
with the original record maintained by them. Therefore,
he has submitted that the said letter received from the
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
Hospital produced with the list Exh.30 in the Court below
appears to have not been considered by the Family Court
while passing the impugned order. He has further
submitted that the medical report referred to by the
learned advocate for the husband, which is produced
alongwith the Civil Application is on the contrary, which
reflects that her fiance accompanied her and he gave the
information or a case history whereas the first page of the
report, which appears to be OPD case papers, the relation
of the person who accompanied the patient is shown to be
husband but at that time she was a divorcee and she had
not remarried as on 14.02.2018. He has attempted to
point out that there are several discripancies in the
medical case papers /reports produced by the husband
alongwith his Civil Application and the person
accompanying the patient to the Hosptial, which were
already prodcued before the Family Court, without offering
any explanation how he came in possession thereof.
[7.2] He has further submitted that so far as
photographs produced bears no details as to when and
how it is clicked and by whom. Not only that, such photos
were never published in any print or electronic media. It is
further submitted that all allegations made by the
husband about the preparation of a Tik Tok /youtube
videos is dealt with in her reply suitably disclosing it to be
triggered as also directed and dicatated by the husband
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
and it is not the sole act of the wife as attempted to be
depicted. He has further submitted that conspicuously the
husband has not stated the exact time, period, how and in
what manner he came in possession thereof, nor any such
activities carried on by the wife either in his application or
in his own affdidavits or even in the petition it is
mentioned.
[7.3] He has further submitted that any visual or
video recording at the time of giving bath to the minor
child of one or one and half years would depict her crying
mode alone and that cannot be treated to be any torture
as alleged by the husband, and therefore, it is submitted
that it has been attempted to be given a different colour
to the normal life going on with the husband and the child.
On those photographs, video clips etc. Mr. Patel, learned
advocate for the wife, submitted that it has been properly
dealt with in detail in the reply, which has been referred to
while arguing the same, and therefore, no detailed reply
thereof for the decision of these petitions in the
arguments are needed so as to avoid repetition thereof.
He has further submitted that the husband was in contact
with the wife since 2010, which is undisputed fact and he
used to remain in contact even after her first marriage as
reflected from the memo of application filed before the
Court below. Therefore feigning ignorance about the
nature and the behaviour of the wife is not palatable at
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
all. As submitted, husband was in constant contact with
the wife even prior to the marriage with him.
[7.4] It is submitted that so far as the allegation of
not feeding the child after 15 days of the birth alleged by
the husband is contrary to the report of the Doctor, which
is produced alongwith the papers and in the trial Court
vide Mark 29/10, which reflects that after two and half
months Doctor adviced top feeding and mother was
adviced to feed child only twice. The medical prescription
dated 07.02.2020 shows that she was staying with her
husband in joint family and during that time child
specialist was contacted and there is no reason not to
believe the said documents. Therefore, it is evident
that, according to the submission of Mr. Patel, the husband
is out and out to project the distorted version of each and
everything. He has further submitted that the said
documents cannot be denied by the husband as at that
time she was staying in joint family with his parents
too. Therefore, it is submitted that he is in habit
of creating imaginary table stories just to avoid liabilities
either as a husband or as a father of the child. It is
further submitted that this facts should also
be considered alongwith the fact that not only
he is a litigant before the Court but he is qualified
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
advocate practising since years also.
[7.5] He has further submitted that apart from the
admissibility of the documents produced by the husband
in the form of video CD /DVD, photographs etc. as it has
been very well replied that it has been created at whose
instance and as the husband is in habit of concocting
documents and producing distorted versions what is
asserted in the application and the arguments cannot be
accepted as a gospel truth without considering the reply
filed by the wife. It is further asserted that the attempt on
the part of the husband to file an application as if he is
filing a suit for declaration and injunction is not for getting
any custody of child but retaining his custody obtained by
deceitful means, which he has, according to him sought
injunction against the wife of not only of retaining the
custody but even the visitation right, in absence of any
cause of action. According to the submission, the cause of
action shown rather apprehended that she may go to Uttar
Pradesh alongwith the child to join some Ashram is again
imaginary facts of the husband and there is no
contemporaneous record available to support the said
assertion either made in the application or in the
arguments.
[7.6] He has further submitted that even presuming
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
without admitting the medical report diagnosing border
line personality disorder, though disputed, to be accepted
as existed on 14.02.2018, within few months thereof i.e.
within eight months he got married with the wife and had
a child too, pursuant to the wedlock. It is further submitted
that there is no narration in the application till then or
even subsequent thereto, any such episode of aforesaid
diagnosis has occurred till he took away the custody of
child and filed the present proceedings in question and
obtained an injunction. In short, even after the marriage
and till they stayed together, there was no complaint at all
of such behaviour, which is sought to be projected by the
husband before the Court.
[7.7] He has further submitted that even the Court
below has also not considered the reply filed by the wife
dealing with each and every allegations and assertions
made in his application in respect of even the documents
also and passed the orders without consideration of
detailed matching reply filed by the wife. He has further
submitted that even the law recognizes ordinarily custody
of a child below 5 years to be with the mother but in
respect of rosy picture projected by the husband, without
any legal support thereto, the husband has projected that
the wife is not entitled to have custody of the child.
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
[7.8] Mr. Patel, learned advocate for the wife drawing
attention of the Court to the further affidavit in support of
the petition and producing alongwith it certain facts filed
by the persons, who are known to both the parties,
submitted that the husband was in contact with them as
narrated in the affidavit and made certain disclosures to
them, which has been brought on record by way of the
said affidavit where he has made certain confessions
/admissions with regard to taking her to the Mental Care
Hospital and his other relatives etc. He has further
submitted that those facts though not part of record
before Court below, it explains and brings on record that
what is alleged by the husband against the wife is an
outcome of his own deliberations and not an independent
act of the wife. He has further submitted that because of
these proceedings and allegations about the mental
health of the wife, she got examined herself through
expert Doctor in psychotherapy and she has produced
those reports and the case papers of treatment by way of
further affidavit in support of the petition wherein it is
adviced no active psychopharmacology treatment is
required at present.
[7.9] He has further drawn attention of the Court to
the affidavit-in-rejoinder as well as further affidavit in
support of petition filed, which is at page 282, more
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
particularly, paragraph 5 thereto to submit that there are
several discrepancies noticed in between medical case
papers produced by the husband and received from the
Hospital under Right to Information, which is stated in
detail at page 285 paragraph thereof.
[7.10] It is further submitted that that though the
husband has produced several material, it is to be
determined at the trial maligning the image of the wife.
The husband has failed to show how and in what manner
he came in custody of the child 'Dhanashri' to retain the
same in whole of the application. He has further submitted
that uptill now no such case, in the battle for custody is
seen under normal circumstances of filing an application
claiming retention of a child custody. It is further
submitted that protection of custody is needed only when
there is well founded cause shown to a serious threat of
divesting custody. The learned advocate for the wife has
relied on a decision in the case of Sejalben Arpit Shah
W/o Arpit Jitendrakumar Shah Vs. State of Gujarat
reported in 2019 (3) GLR 2247 to contend that ordinarily
custody of the child who has not completed the age of five
years would be with the mother irrespective of the fact
that the father is the natural guardian. For the said
proposition, he has also relied on the decision in the case
of Megha Sood Vs. Amit Sood reported in AIR 2021 P
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
& H 93 and the decision in the case of Gaurav Nagpal
Vs. Sumedha Nagpal reported in AIR 2009 SC 557. On
the aforesaid oral submission as also drawing attention of
the Court to the written reply, it is submitted that the
petition filed by the wife be allowed and filed by the
husband be dismissed restoring the custody of the child.
[8.0] Having heard the learned advocates for the
appearing parties as also going through the impugned
order and the documents annexed with both these
petitions alongwith paper book supplied by the learned
advocate for the wife as also connected Civil Application, it
is undisputed that both the husband and wife were
knowing each other since 2010. The said fact has come on
record from the application itself filed by the husband that
they came in contact through 'shaadi.com' and they used
to talk over the phone. It is further undisputed that the
factum of earlier marriage as also divorce of the wife was
known to the husband and it is already mentioned in the
application filed before the Court concerned. It has come
out from the application filed before the Court below that
he has mentioned about the treatment taken by the wife
on 10.02.2018 in Columbia Hospital as also Hospital for
Mental Health, Ahmedabad. The said consultation and visit
to the Hospital is few months, to be precise eight months
approximately, prior to the marriage with the wife.
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
[8.1] The narration in the application itself in detail
about her nature, behaviour and the Mental Health shows
that the husband was knowing each minute details with
regard to her personal life before entering into the
marriage. As such, when confronted with the medical case
papers produced by him alongwith the application from
the Mental Care Hospital, Ahmedabad having
discrepancies in the case papers, he has come out with an
explanation, that too, which was before this Court as also
those documents were received through RTI during
pendency of this petition, to assert that he chanced the
medical case papers while he was looking for the
vaccination case papers of the child 'Dhanashri'. If he has
already produced those documents alongwith his
application, which runs into 30 pages and of equal pages
an application for injunction alongwith voluminous
documents,that too, on 04.08.2021 placed in a drop box of
Family Court, it appears that before that time he has
started collecting evidence and drafting of the application,
he being lawyer by profession. Despite that, he has not
explained how he chanced upon those documents, which
are not permitted to be given to the patients or even to
take out from the Hospital throwing burden on the wife to
explain the custody thereof. As such, so far as medical
case papers of Columbia Hospital is concerned, there is no
explanation offered how he came in possession thereof.
Not only that, if that consultation papers are seen, the
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
patient was accompanied by a friend. Though it cannot be
concluded that the friend was only the husband
considering the relation with the wife since 2010, knowing
about each minute details of the life of wife prior to
marriage with documents, primarily, it can be concluded
that whatever he has narrated in the application feigning
ignorance about the activities of the wife, is not that easily
digestible.
[8.2] Not only that, nowhere in the application it is
stated that how and in what manner he came in custody
of the child, that too, either on 04.08.2021 or on
05.08.2021 while they were staying together alongwith
the child separate from the parents. The nature of the
application, which is filed as if a suit is preferred and
injunction application is filed reflects that he is conscious
that he is not in the exclusive custody of the child, as
explained in the reply by the wife with minute details,
which is not only for 4th or 5th August, 2021 but starting
from 03.08.2021. What she explained about the custody
of the child with the husband in her reply appears to be
correct. The day on which he preferred an application, if
he had gone taking away the custody of the child while he
was staying with the wife, she would have made hue and
cry from that day as it is evident from her assertion in the
reply as also in the documents where he complained to
the parents for not return of the husband on 05.08.2021.
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
Each and every steps of the husband appears to be
calculated and motivated so as to deprive joint custody of
both parents. He has not even stated, from what date and
time, he started staying separate with child from wife,
either in his application retaining custody or injunction
application.
[8.3] The contention of the learned advocate for the
husband that Civil Miscellaneous Application filed for
declaration and permanent injunction to the effect that the
father is entitled to custody of minor and permanent
injunction restraining wife from taking custody of minor
and permanent injunction restraining her from exercising
visitation rights is maintainable as it is filed under the
provisions of 'the Act, 1956' and 'the Act, 1890' is
maintainable. It is further the contention that as per
Section 6 of 'the Act, 1956' custody of child below 5 years
is ordinarily with the mother, and therefore, it is claimed
that in view thereof, the only course open to the father
was to file a suit for declaration and permanent injunction.
As such, it is not a suit to be tried by the Court while
exercising jurisdiction under 'the Act, 1956' or 'the Act,
1890' for declaration. Such application and not the suit
would be maintainable. The suit would be maintainable
only when child is removed out of legal custody of anyone
for which there are contemporaneous record in support
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
thereof to claim custody. It is not to say that no such
application can be filed for retention of a custody unless it
is shown and established that it has ever been attempted
to be snatched away or taken away from the lawful
custody of any of the parent. If the husband was entitled
to retain the custody of minor daughter, 'Dhanashri', filing
of an application for such declaration would suffice.
However, in the present case, the husband has without
showing any cause of action, except the imaginary cause
of action alleging wife would take the daughter out of the
jurisdiction of the Court concerned or out of Gujarat,
without their being any contemporaneous record in
support thereof, has filed the application as if he is filing a
suit for declaration and injunction. Surprisingly, he has
also filed an application for injunction also. The injunction
is not only restricted to take away the custody but it has
been prayed that she may not be permitted to have even
the visitation right. In a given case, such an application in
such circumstances may be filed but under normal
circumstances, only the application for getting custody is
filed at the instance of any one party who is deprived of
the custody of child. As observed hereinabove, except the
repeated bare words that on 04.08.2021 husband had
custody of the daughter, which is equally replied and
denied by the wife, there is no contemporaneous record
produced to establish the same. It comes to words against
words and looking at the prompt action initiated by the
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
wife when she is deprived of her husband, apart from
child, she immediately inquired about him of not returning
home and she contacted even his parents in vain,
informed the Police and attempted to get registered even
missing complaint and there she has been told in presence
of the Police Officer that an injunction order depriving her
of custody is passed and she will be served with the said
order on the next day i.e. on 06.08.2021, that too, by the
father of the husband who is also a lawyer. It is never the
case of the husband in his application that wife has
abandoned the custody of the child or raised her hands
from maintaining the child, and therefore, the husband
wants to retain the custody. In such circumstances, I do
not want to finally conclude whether the said application
was maintainable or not in absence of cause of action,
leaving it open for the parties to argue the same before
the concerned Court.
[8.4] The husband has repeatedly asserted and
projected about the mental health of the wife, whom he
has married, within a span of eight months of the said
diagnosis, if at all it is correct. Thereafter also, within two
years of the marriage life, at least there appears no such
episode of any problem with the mental health of the wife
nor any complaint for the same throughout the married
life. It is also not the case of the husband that for such
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
mental health issue there was any medication prescribed
or even followed. On the contrary, since about a year
from the filing of the application before the trial Court,
they were staying separate with the child from his parents
and for a year also, there is no such complaint ever made
or projected even in the application except claiming that
she is in habit of making Tik Tok /youtube videos late night
ignoring the child. Surprisingly, the husband has carried
on his profession even during that period successfully with
his father also and if the assertion made in the application
is believed to be right, he would not have continued it for
a day instead of prolonging it for a year. There may be
differences between the husband and wife. They may be
free to take their own call to either stay separate or part
their ways but there has to be on record material facts
when husband and wife staying together with the child
that the wife has either voluntarily or willingly abandoned
the custody of the child so as to deprive her of the same
by such litigation.
[8.5] Though the husband has produced several
documents complaining about her mental health,
behaviour, reflecting nature, nowhere it is claimed in an
application when he came to know about the same and
when he collected all those material documents while
staying together with the wife under one roof. From his
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
own assertion in the application that he is having relation
with the wife since 2010, despite her earlier marriage and
divorce, and again assertion in the application that they
were in contact during the period, the decision to marry
her despite all these things, if at all to be believed to be
true, is sufficient to say that either it may not be correct or
it may be a creation as replied by the wife in her reply to
the application, which is not even considered by the trial
Court. If such is the nature of the wife, a person who is
having relations with her for about more than eight years,
prior to the marriage, he would immediately know the
same, and therefore, it can be reasonably concluded that
he is feigning ignorance about such mental health, if at all
it is there either deliberately or known the same and
collected clandestinely such material to use them to find
escape route from the liability. It cannot be forgotten that
the husband is the second generation lawyer, at least
known from the pleadings itself, more particularly, it is
never the case of the husband in his application that the
wife has lawfully /willingly /voluntarily deserted the
custody of the child so as to deny her the custody, that
too, if she files proceedings for that. In the present case,
while staying with the wife and child, husband abandoned
her depriving joint custody of minor child, which can only
be a reasonable conclusion reached based on the
pleadings and circumstances, which led to filing of the
same.
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
[8.6] From the assertions made in the application
before the Court below, it appears that even after the
marriage, wife repeatedly has visited Petlad, her parental
home. If at all there are strain relations with the parents,
as claimed by the husband in his application, after the
marriage neither she would have gone there nor the
husband would have permitted her to go to Petlad. Not
only that such strained relations were immediately
resolved within no time as asserted in the application
itself. Whereas, as asserted in the application, for the
purpose of delivery, she went to Petlad, her parental home
and after she came back, again she went when lock-down
was opened in May, 2020 and again on 15.12.2020, as
claimed in the application, she went to the Petlad and
there she attempted to give some application that some
miscreants are following her. As also on 15.04.2021 as
asserted wife executed affidavit. All these assertions in
this application by the husband itself proves that she has
a cordial relations with the parents at least from the date
of marriage, if not earlier. Not only that, as asserted in the
application itself, she filed some proceedings against the
parents and brother, which was resolved within no time.
There may be several differences between the close
relations but there is no end of the relations and even
according to the assertion in the application, they were
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resolved within no time. It may be that while going
through rough patch of her life, she might have had some
grievance against her parents also and in a heat of
moment she might have filed certain proceedings but that
will not lead to a presumption that she is unable to
maintain the child all alone without the help of anyone.
Not only that, as claimed by the husband in his
application, she affirmed an affidavit on 15.04.2021
wherein she has admitted her misdeeds in the past for
producing it before the matrimonial proceeding filed in
between her brother and sister-in-law where warrant came
to be issued for non payment of maintenance amount by
her brother. If that documents, so called affidavit is seen,
though explained during the course of argument, that it
was at the dictation of the husband and wife is not well
versed with written vernacular language, and therefore, it
has come to be drafted and affirmed at Petlad before
notary as dictated by the husband. However, if that
document is seen, it appears that it is only an affidavit not
meant to be produced before any Court in any
proceedings and it seems to have been affirmed without
any purpose, much less, as for the purpose mentioned by
the husband in his application, paragraph 14 of it. All
these things prove one fact very clearly that the husband
has exercised his professional skills to either create the
documents or led her to do the same, obtained it
thereafter and utilized it for his ulterior motive so as to
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deprive the wife of custody of the child 'Dhanashri' aged
about 2 years. If that affidavit is seen, it is out of context
and much less the context in which it came to be filed, as
asserted by the husband, and therefore, it is all the more
probable as submitted by the learned advocate for the
wife that it was prepared under an advice to save her
brother from the litigation and as per his dictation,
appears to be more probable than, what is asserted in the
application. The date 15.04.2021, it is relevant for one
more reason that the said affidavit is affirmed at Petlad,
which proves that she was again there at Petlad on
15.04.2021, which is her parental home. During even
marriage span of even less than three years she has
visited frequently her parental home even according to the
case of the husband himself in his application, and
therefore, the allegations that she has no relations with
her parents or anybody else and she is all alone suffering
from mental disease, as claimed, appears to be nothing
but concoction, asserted only with a view to prejudice the
Court so as to deprive her of the custody of the child aged
2 years, which is ordinarily entrusted to the mother even
according to the law. In an attempt to show extra ordinary
circumstances to deprive her of custody of minor
daughter, the husband has adopted a wrong route. Not
only asserting or alleging anything against the wife but
maneuvering the proceedings before the Court. If the
husband is to be believed what he asserted in his
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application about the wife, is to disbelive what is asserted
by the wife in reply, in absence of any contemporaneous
record justifying the disbelief thereof. She has given
minute detail about the moments throughout the day of
3rd, 4th and 5th August not only of husband but of the
wife and the child. That has been completely ignored by
the Court below while passing the impugned order. As
such, husband has portrayed the wife as worthless so as
to have the custody of child 'Dhanashri', whom she has
given birth. Neither the mental health nor her nature
prevented the husband from marrying her and having a
child through the wedlock. There appears no reason to
believe the version of the husband who has created
mountain out of mole, which is of no use. If the version of
the wife in reply is to be believed, the husband has
betrayed the blind faith of the wife. Further contention of
the learned advocate for the husband that the prayer
made by him in the application is required to be granted in
view of the fact that all recordings, photographs, medical
reports, which are produced on record are not disputed by
the wife is required to rejected for the simple reason that
she has categorically denied the existence thereof in the
manner in which it is claimed by the husband as also all
those documents are flatly denied, which are required to
be proved in the Court of law, that too, in accordance with
law and then only it can be relied on. At the same time,
the existence of that material has no relevance to the
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recent past because it is no where claimed or rather
guardedly claimed that he came to know about the same
recently. Therefore, learned advocate for the husband is
not correct when it is asserted that she has not denied the
existence of the material, and when it is explained
denying the same and the manner in which it came into
the existence is also not only stated in the reply but
argued orally before this Court to the effect that it is the
husband, who has created such an imaginary table story
as per his own wish through the wife. As argued, she has
firmly asserted that the literature published on social
media, print media or any other medium were solely with
the express consent scripted and directed by the husband
with a view to create an evidence, is probably not taken
note of by the learned Judge before passing impugned
order.
[8.7] However, looking to her frequent visit to her
parental home and no any contemporaneous record
except repeated assertion by the husband, the presence
of all these materials does not appear to have affected life
of anyone much less either the husband or the wife so as
to deny the custody of the child to the mother. Certain
photographs, much stressed, while arguing the case that
she used to have liquor party and smoke, that too, in
presence of child. Smoking as on date that too near
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
college campus in open public is no more a taboo in this
case. At any rate the husband has not claimed in his
application that he is a saint and he is not even in a habit
of smoking or drinking liquor. Even otherwise it has no
bearing on determining whom to be entrusted the custody
of a minor child.
[8.8] Considering the application made for retaining
the custody of the minor child, it appears that the husband
has narrated even past events of the life of the wife as if
he was an eye witness to it. That shows his knowledge
about her nature, behaviour and character, if at all it is to
be complained, even prior to the marriage and now he is
trying to portray her in a malign colour. Collection of all
documents concerning past much prior to marriage, while
staying together, filing proceedings with copies thereof,
profiling her as worthless reflects the true nature of the
husband. As asserted by the husband in his application,
wife is professing Hinduism since last about one month.
She joined Uttar Pradesh Vishwa Hindu Mahasangh. Her
appointment as President of Gujarat Mahila Morcha
alongwith the photographs thereof is produced and if such
photographs is seen, it refers about her fathers name
therein. With a view, not to be proved incorrect, he came
out with an explanation that since she recently joined the
Gujarat Mahila Morcha and the wife did not like him to be
identified as her husband her father's name is shown in
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the photographs. However, it appears to be feeble
attempt on the part of the husband as either the
photographs are prior to the marriage, defying his claim of
joining such activity recently or he was knowing about the
same even if that event is in past. Such facts have been
projected only with a view to justify his imaginary cause of
action to file instant application, to retain custody
obtained by deceitful means, that she is likely to move out
of jurisdiction of Court with the child.
[8.9] Much stress is laid on the report dated
06.03.2018 to contend that no custody of child of tender
age be handed over to her even refusing to permit
visitation right. In any case, whether the husband is
knowing the report or not, it is not his case that
subsequent thereto or after the marriage she was ever
required to be treated by any Doctor as claimed by him for
which the report was obtained. Apart from any
discrepancies, deficiencies and mismatching of the
documents, it is not required to be determined right now
so as not to prejudice the case of either side. At any rate,
if such report is to be presumed to be true about her
mental health, if It has not affected two years of marriage
life at least, during which she conceived the child. If at all
any such behaviour or the act of the wife is seen, he
being the most educated person, it was his first duty to
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take her to such hospital, if at all needed. As such, such a
nature, if at all it is there, could be known by a person
within few months after, if not days and hours of the
relationship. In the present case, as claimed by himself,
she knew her and had relations for eight long years to an
extent that she was determined to marry him but because
of the parents of the husband it did not materialize as
claimed in the application. For having relation at least for
eight years prior to the marriage and marrying her, with
two years at least going on, no such issue cropped up
according to him in the application. When majority of
photographs, if seen, it does not reflect any abnormality
as it has been clicked or shot for the purpose of fun and
not as claimed by the husband. The lame excuse that she
went to the terrace and she posed as threat to commit
suicide, to reflect her suicidal tendency even that
photographs is also not reflecting the said attempt. For all
these photographs, again without near and dear ones is
not possible to click, which is suggestive of the fact that
either he must have shot or clicked it, which he
suppresses. At the same time, all those photographs with
happy moments produced by the wife is not at all
considered or even looked at it by the Court below.
[8.10] Despite the order passed by the Court
below permitting visitation right, no visitation is permitted
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
as per the spirit of the order itself. I am not entering into
any discussion about the same, as for the breach of order,
proceedings are already initiated by the wife so as not to
prejudice the case of either side but the fact remains that
what husband wanted to have the visitation right in that
manner only it is permitted claiming that it is by mutual
agreement, which is permitted. Again leaving it there,
any finding on it is not called for.
[8.11] Now coming to the reasoning part of the
impugned order, it is clear from the narration in paragraph
2 thereof that the learned Judge is not even alive to the
fact that vide Exh22 application, she has prayed for
restoration of the custody also. He has referred in that
paragraph 2 of Exh. 22 filed by the wife that it refers as to
a preliminary objection only and ignoring the part that
vide very said application she has prayed for restoration of
the custody of minor child 'Dhanashri'. Considering the
whole order running into 14 pages, I fail to understand
that though details narrated in the application by the
husband are projected whereas reply tendered by the wife
in equal pages has not been considered in its true
perspective before determining the application, Exh.5 as
also Exh.22. It appears that the learned trial Judge is
obsessed with the CDs and photographs, which is only one
sided version, not supported by any authority of law, more
C/SCA/8548/2022 JUDGMENT DATED: 05/08/2022
particularly, when it is denied in the manner in which it
existed. He has gone to an extent that while passing ex-
parte ad-interim order of status-quo in favour of the
husband at that time custody of minor child was with the
husband.
[8.12] It is very vehemently submitted by the
learned advocate for the husband that the order impugned
is well reasoned order. Drawing attention of the Court first
to paragraph 5 of it, that on the date of filing of the suit,
the custody of minor daughter was with the applicant
ignoring the written reply filed stating therein how
husband deceived the wife and had child out of her joint
custody to project that the wife has abandoned the
custody and therefore he is having the same. Not only
there, is no assertion in the whole application that wife
has ever deserted the husband or even a child. Without
recording any finding that wife has ever deserted the
custody of the child for concluding that application Exh.22
is not tenable, despite they were staying together under
one roof on the date of the suit, how the custody was with
the husband, and there was an order in the nature of
status-quo.
[8.13] Pointing out another finding to the effect that
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the husband is a practicing advocate and his father is also
an advocate and mother is residing with the husband and
one lady member is also available with the husband to
look after the minor 'Dhanashri', that appears to have
weighed with the Court forgetting the fact that even a
single mother can nurture the child and up-bring him /her
to a respectable level. Even that factor has to come later
and first what has to be determined is whether who is to
be preferred for custody of the minor child of two years at
that time but that very important aspect has lost sight of
the fact by the learned Judge. It appears that again and
again he is obsessed with the CDs and photographs
without referring and relying on even the reply filed by the
wife and the explanation offered thereof. He is further
obsessed with the affidavit dated 15.04.2021 affirmed by
the wife at Petlad referred herein in the earlier paragraphs
and which is without any head and tail. The husband has
claimed in the application that such an application was
required to be filed in maintenance proceedings filed
against her husband where warrant came to be issued.
However, that claim falls to the ground when affidavit is
seen. If it was to be utilized for that purpose, it must be
tendered to the Court. The affidavit is not addressed to
any Court or no names of any party is mentioned in it as if
a person is going before a notary and filing an affidavit in
that form such an affidavit is executed. Even that affidavit
is explained by the wife showing that she has no exclusive
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knowledge of Gujarati and on having immense faith on the
lawyer husband, when she requested him to help her
brother, as per his dictation and guidance, such writing is
typed and affirmed before the notary. However, it is not
the case of the husband that the said affidavit was
tendered before any Court for the purpose which he
asserts for presenting in the Court where maintenance
proceedings against her brother is filed. Relying on that
affidavit husband claims that the wife has admitted her
misdeeds in past. If considering the said assertion of the
husband alongwith the explanation offered by the wife, it
appears that the husband, who is an advocate by
profession of a fairly good standing, may have prompted
her to affirm such affidavit and he has never explained
how he came in custody thereof. He has also not said that
he has obtained copy from which proceedings against her
brother. Merely the said affidavit admits that she in past
filed the proceedings against her parents will not deprive
her of custody of the child when the said dispute was
immediately resolved after even filing and as referred to
hereinabove even after the marriage of short span of less
than two years, frequently she had visited Petlad at her
parental home. If she had any strained relation with her
parents neither she would opt to go there nor husband
would permit to go to her parental home. The learned
Judge, without even considering matching reply filed, has
gone to an extent that conduct and nature of the wife is
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abnormal and such kind of behaviour is abnormal, said
finding is not tolerable. From the reasoning part it appears
that he has considered only the list of documents and the
documents produced by the husband alone. The
contention of the learned advocate for the wife before the
trial Court that the husband has concocted the documents
with ulterior and mala fide intention to create
documentary evidence against the wife is rejected by
saying that why and for what purpose the husband has
created such documents, no submission is made. It is
obvious when such things are argued, it is for the purpose
of retaining the custody and not even claiming the
custody. The learned Judge has praised the husband that
in circumstances narrated in the application, he wants to
take responsibility to bring up the child, and therefore, it is
presumed that situation has arrived, it should be reached
for which he is compelled to take responsibility and care of
the minor child. He has cursed the wife that her conduct
is to such an extent that due to misbehavior, the safety
and health of minor child would be affected if the child is
with the wife. I fail to understand on what basis he has
reached to such conclusion without considering even the
reply submitted and oral submissions made on behalf of
the wife. At any rate, her all family members are by her
side, she is also able and can take the responsibility, minor
child aged 2 years cannot be deprived care of a mother,
that too, on such an imaginary fancy story projected by
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husband to malign wife.
[8.14] The learned Judge is further obsessed with the
fact that the husband is well educated living with his
parents and who are ready to take care of of minor child.
Whereas he has forgotten that she is also well educated
and qualified. She is MA, Bachelor of Physical Education
with gold medal. She is selected at Lieutenant in Indian
Army in 34 SSB, Allahabad. She represented in Judo
Championship thrice. If wife is living alone, it is because
of the husband alone who has deserted her and her
parents are by her side, who can, as well, take good care
of the child. Observing that the husband is the real father
of the child and he has sufficient means to take proper
care of the child, he concluded prima facie case in favour
of the husband. Learned Judge has forgotten that wife
is also a real mother of the child, and if not sufficient
means according to husband he may be asked to provide
the same for the well being of his daughter.
[8.15] If at all husband is ready to take care of the
child, he could have taken that while staying with the wife
separately when they were living together since about a
year of filing such application. If at all there is any
dispute between them he can come out with a clear case
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thereof instead of narrating any such reasons. He appears
to have filed application alongwith detailed
documentation a day prior to the custody obtained under
a deceitful means, which disentitles him to retain it
further.
[8.16] Not only that his conduct not to permit
even visitation right against his wish and the manner in
which the visitation is to be observed leads this Court to
only conclusion that it has been made a battle of ego
rather than looking at the interest and welfare of the child
at the instance of the husband. Considering the provisions
of the law, custody of minor child, who is less than five
years, is ordinarily to be with the wife and the special
circumstances are not made out to retain the custody by
the husband. Instead of claiming the custody from wife, he
deprived the wife of a joint custody under deceitful means
is not a conduct of a good husband. Not only wife is
deserted, she is deprived of her child aged two years i.e.
less than five years. The learned Judge while concluding
that the wife is not having good terms with parents so as
to permit retention of custody of child by the husband has
gone to an extent that because of her mental balance she
cannot take proper care of minor child, which will affect
the health of the minor child. The said finding is de hors
the documents on record. Since conceiving, at the birth of
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the child and bringing child up jointly, there is no such
conduct or behaviour alleged or proved by
contemporaneous record except the motivated documents
in the form of CD / photographs etc. produced just with a
view to prejudice the mind of the Court cannot be
tolerated.
[8.17] Considering the overall case and the manner in
which such application came to be filed, not for claiming
custody, but retaining custody as if a suit is filed,
considering the reply on record and hearing the learned
advocates for the parties, as held hereinabove, I am
satisfied that welfare of the child is with the mother and
not with the husband, as claimed, and therefore, the
impugned order is hereby quashed and set aside to the
extent so far as it relates to Exh.22 is concerned and it is
hereby allowed and the husband is directed to entrust the
custody of the minor child to the wife forthwith. If
husband fails to handover custody to the wife, the Family
Court is directed to seek help of Police to get that custody.
In view thereof Exh.5 application, which is allowed by the
trial Court is hereby quashed and set aside. Both these
petitions are accordingly disposed of.
[9.0] The request for staying operation of this order is
hereby rejected as despite the order of the Court
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permitting visitation right, it has not been observed, even
if it is presumed to be mutually agreed, in its true letter
and spirit. Hence it is refused.
CIVIL APPLICATION 1 OF 2022
In view of the order passed in the main petition,
the present application also stands disposed of.
(UMESH A. TRIVEDI, J.)
siji
