Rajnikant Vadilal Rana vs Grishmaben Shrikant Rana
2022 Latest Caselaw 10337 Guj

    C/FA/3267/2022                                      CAV JUDGMENT DATED: 23/12/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                          R/FIRST APPEAL NO. 3267 of 2022

                                        With
                     CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
                          In R/FIRST APPEAL NO. 3267 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE N.V.ANJARIA

and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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

1 Whether Reporters of Local Papers may be allowed to see the No judgment ?

2     To be referred to the Reporter or not ?                                   No

3     Whether their Lordships wish to see the fair copy of the                  No
      judgment ?

4     Whether this case involves a substantial question of law as to            No

the interpretation of the Constitution of India or any order made thereunder ?

========================================================== RAJNIKANT VADILAL RANA Versus GRISHMABEN SHRIKANT RANA ========================================================== Appearance:

MS SHRUTI S PATHAK(5619) for the Defendant(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 23/12/2022

CAV JUDGMENT

C/FA/3267/2022 CAV JUDGMENT DATED: 23/12/2022

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr.C.B.Dastoor for the appellant and learned advocate Ms.Shruti Pathak for the respondent.

2. This appeal is directed against order dated 12.7.2022 passed by learned Judge, Family Court No.2, Ahmedabad in Civil Miscellaneous Application No.211 of 2019. It was proceedings under Section 7 read with Section 25 of the Guardian and Wards Act, 1956.

2.1 The Family Court passed final order holding that in the facts of the case and looking to the age of child which is five years, custody could not be given to the applicant, however these directions came to be issued, (i) directing respondent Mother to take the child Vihan to the place of applicant on every Sunday and on public holidays for four hours from 10:00 a.m. to 7:00 p.m. (ii) in the event the applicant or his wife comes to the house of the respondent to meet the child, the respondent shall not object. (iii) the applicant shall pay Rs.7000/- per month towards maintenance as well as for expenses towards medical treatment and education of the child.

3. The applicant happens to be grand father whereas respondent is the mother. It was the case of the applicant that respondent- daughter-in-law and his son Shrikant had married an out of the wed-lock the son named Vihan was born on 10.10.2017. The father- son Shrikant died at young age on 21.11.2018 having suffered a stroke. The case put forth was that upon death of said Shrikant and after his last rites, respondent

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mother went away to her parental home taking away the child. It was stated that the applicant had in his family wife and three sons including the deceased Shrikant. It was claimed that they were keeping and maintaining the minor Vihan properly extending the family love.

3.1 According to the case of the plaintiff, that the respondent mother-daughter-in-law since has been serving in the Municipal Corporation, used to go to service leaving the custody of son with applicant and applicant's place and that he had no care for her son even when her husband Shrikant was alive. It was stated that after the death of Shrikant, the respondent was requested to stay at home but she refused and has been staying since last one year at paternal home with Vihan, not maintaining and attaining the son proper confining him to the home only.

3.2 It was the further case the respondent was likely to remarry in which event the welfare of the son would be jeopardise. It was stated that the respondent was persuaded to come to stay together at matrimonial house but she has not come and has been spoiling the life of minor son. It was alleged that respondent is more interest in service than in her son and has not been properly bringing him up. It was submitted that applicant is grand father, who is receiving sizeable amount of pension, would properly take care and upbring his grand son.

3.3 Reply was filed by the respondent to the aforesaid application of the grand father denying all the facts except about marriage with said Shrikant and his death. It was contended that all the allegations in the application was false and the

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application was filed to harass the respondent. It was contended that she was the mother and was able to take proper care of the son. It was stated that the applicant was seventy years old and suffering from ailments. Regarding staying at applicant's house, it was stated that when Shrikant was alive the other sister-in-law had been dominating and the respondent was taunted for small things. It was stated that even after the birth of child, nobody had come to see them and even tiffin was not sent to the hospital and in no way they were helpful. It was alleged that the applicant's family had mated out step motherly treatment.

3.4 Trial court took up the application of the applicant grand father and considered the same in wake of allegations and counter allegations as above which culminated into impugned order.

4. Learned advocate for the appellant submitted that respondent was had not been looking after his son well whereas the applicant grand father had great love and affection. It was submitted that wife was serving Ahmedabad Municipal Corporation for whole day and was not in position to take care of minor child. It was submitted that the applicant was retired Executive Engineer receiving pension and all other son were also well positioned in life. It was harped that they were a proper persons who could take care of minor child. It was submitted that the custody of Vihan should have been handed over to the applicant. It was finally submitted that the wife had received Rs.50 lakhs as insurance policy upon death of son Shrikant and was not parting the same.

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4.1 Learned advocate for the appellant assailed the impugned order of the court below to submit that even issues were not framed by the court and the parties did not lead evidence. In support of proposition that the trial court had framed the issues, he relied on the decision of the Supreme Court in Pratima Sinha Vs. Sashi Kumar Narayan Sinha [(2004) 13 SCC 588]. By relying on another decision in Athar Hussain Vs. Syed Siraj Ahmed [AIR 2010 SC 1417], it was submitted that the welfare of the child was to be in main consideration and that the court below had not attended to the said aspect in passing the directions.

4.2 On the other hand, it was submitted on behalf of the respondent that Vihan is minor and custody should be properly given to the mother. He supported the order to further submit that the court had rightly awarded Rs.7,000/- towards the maintenance and educational expenses of minor. He submitted that in any view, the respondent had no occasion to file reply or lead evidence.

4.3 It was submitted that the age of the child often becomes decisive consideration, though may not be sole criteria in judging as to whose care and custody would promote the welfare. A tender age child is always nearer to mother than any other family mother in terms of emotional need and he or she would need mother's care and compassion, it was harped on behalf of the respondent. When asked as to whether the respondent mother was satisfied with the directions issued by the trial court, learned advocate for the respondent submitted that she was agreeable to abide by unless to be revised by the

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court in her favor. It was submitted that the amount of maintenance of Rs.7,000/- granted for her son Vihan per month could be said to be requiring enhancement having regard to the present-day needs for upbringing and in view of ever rising prices.

4.4 On the other hand, learned advocate for the appellant submitted that though the directions are given that the mother shall bring the child to the house of applicant, she has not been obeying the same. About maintenance of Rs.7,000/- also it was submitted that it is on higher side.

5. What is conspicuous is to notice that before the court below neither of the side file their reply nor they led the evidence. It was only on the basis of the pleadings of the parties and submissions made by the advocates that the proceedings came to be decided. The issue to be addressed as to in whose custody- the mother or the grand-father- the welfare of five years old Vihan would be nurtured and promoted, who is at the threshold of his life. The court is also required to decide on evidence in respect of the amount towards maintenance payable

6. It is well settled that it is always welfare of the child which is paramount consideration for deciding the issue of custody. In Vikram Vir Vohra Vs. Shalini Bhalla [AIR 2000 SC 167], the Supreme Court observed, "In a matter relating to custody of a child, this Court must remember that it is dealing with a very sensitive issue in considering the nature of care and affection that a child requires in the growing stages of his or her life."

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7. As the decision rendered by the Family Court is without affording any opportunity of filing reply or even to permit leading of evidence to the either side, both the sides deserves such opportunity to put forth and prove their respective case. It is always trite that any proceedings before the court of law are tried and decided in accordance with the principles of natural justice where both the parties have chance to lead evidence.

8. In the aforesaid view, the proceedings of Civil Miscellaneous Application decided by the Family Court are required to be remitted for decision afresh after extending opportunity of filing reply and leading evidence to both the sides. The parties may be permitted to lead their respective evidence and all issues arising out of pleadings including the amount of maintenance payable. While remanding the case anew, the court is of the view that in overall consideration and totality of facts, the present arrangement deserves to be continued.

9. It is clarified that this court has not expressed any opinion on merits of the case. Any observations made in this order has only prima facie value.

10. Therefore following order is passed.

(i) Impugned order dated 12.7.2022 passed by Family Court, Ahmedabad in Civil Miscellaneous Application No.211 of 2019 is set aside in order to enable the Family Court concerned to decide a case afresh in accordance with the above directions.

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(ii) The proceedings are remanded to the Family Court No.2, Ahmedabad.

(iii) The Family Court, Ahmedabad shall decide the proceedings of CMA No.211 of 2019 afresh after giving opportunity to both the parties to lead evidence.

(iv) The exercise shall be completed expeditiously and preferably within a period of six months from the date of receipt of this order.

(v) Untill the decision is rendered afresh by Family Court, present directions given in the impugned order shall continue including that the applicant shall remain liable to pay maintenance of Rs.7,000/- per month to Vihan. If arrears are payable by the applicant in that regard, depositing the same with the court concerned shall be condition precedent before applicant is allowed to lead his evidence.

11. The appeal stands disposed of in the aforesaid terms. Civil Application is disposed of as not surviving.

(N.V.ANJARIA, J)

(SANDEEP N. BHATT,J) Manshi