Vilasben D/O Bhavanbhai ... vs Yashvantbhai Babubhai Mayani
2022 Latest Caselaw 6089 Guj

     C/FA/474/2020                              ORDER DATED: 08/07/2022




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 474 of 2020

                        With
    CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2020
                         In
            R/FIRST APPEAL NO. 474 of 2020
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       VILASBEN D/O BHAVANBHAI RAKHOLIYDA
                       Versus
           YASHVANTBHAI BABUBHAI MAYANI
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Appearance:
MR SHAKEEL A QURESHI(1077) for the Appellant(s) No. 1
MR IMTIYAZ I MANSURI(9159) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                            Date : 08/07/2022

                              ORAL ORDER

1. This Appeal is filed under Section 47 of the Guardians and Wards Act, 1890, challenging the judgment and order passed by the learned Additional District Judge, Visavadar, dated 06.12.2019 in Civil Misc. Application No.15 of 2019, which was filed for having custody of a minor child "Het", born out of the wedlock between the parties, which came to be denied by the aforesaid impugned order.

2. It appears that out of the wedlock between the parties, a child named "Het" born who was 04 years of age at the time of filing the aforesaid Civil Misc. Application before the learned District Judge. It further appears that

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parties have entered into an Agreement of Divorce dated 07.01.2019 and pursuant thereto, the custody of son "Het" was handed over to the respondent - husband. After filing of the aforesaid application, the appellant - wife entered the witness box and examined herself in support of the claim made by her. She was also cross-examined by the advocate for the respondent - husband. The said cross-examination is concluded on 30.09.2019. On behalf of the appellant - wife, another witness, namely, Rameshbhai Bhovanbhai Rakholiya, brother of the appellant - wife, came to be examined vide Exh.12. It further appears that though respondent - husband tendered an examination-in-chief on affidavit, which was not pressed by him later on, and therefore, on behalf of the respondent - husband no one is examined before the Court.

3. On conclusion of the evidence and after hearing the parties, the learned Judge passed the order impugned.

4. Mr. Shakeel A. Qureshi, learned advocate for the appellant - wife submitted that looking to the age of the child and the appellant being the mother, keeping in mind the paramount interest of the child, custody has to be handed over to the mother. He has submitted that the agreement of divorce contained recital as to the custody to remain with the father, was obtained under a pressure, and therefore, she being natural guardian and mother cannot be denied the custody, more particularly, when the age of the child was 04 years at that time. He has further submitted

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that even the learned Judge, while dealing with the application, has only considered the financial capability of the parties to raise up the child and no issue was framed or answered with regard to the paramount interest of the child is with the mother or the father. He has further submitted that from the deposition of the appellant - mother, it has come on record that she doesn't intend to remarry. Therefore, according to him, the impugned order passed by the learned Judge denying the permanent custody of the child "Het" is erroneous, illegal and requires to be quashed and set aside.

5. Mr. Makbul Mansuri, learned advocate for Mr. Imtiyaz Mansuri, learned advocate for the respondent - husband submitted that not only the writing is executed handing over the custody of the child voluntarily to the respondent - father for the purpose of divorce, a suitable amount towards permanent alimony is also paid to the appellant - mother. He has further submitted that in a separate proceedings filed under the Protection of Women from Domestic Violence Act (for short D.V.Act), praying for the same relief i.e. custody of a child, by way of Criminal Misc. Application No.48 of 2019, which also came to be rejected by the concerned Court. He has further submitted that the witness of the appellant herself has admitted with regard to financial capability of the husband to maintain the child properly, and therefore, there is no reason to grant the custody of the child which is with the father, to the appellant - mother. He has further submitted that as orally

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argued before the trial of a domestic violence proceedings, at the intervention of the Court child was handed over to the appellant - mother for a brief period but child was frightened and started crying. Thus, it is submitted that the child is also not feeling comfortable with the mother even for a brief period. He has further submitted that since mother has remarried and having a child out of the second marriage, which is not disputed by the learned advocate for the appellant, his future would be in danger. He has, therefore, submitted that the Appeal preferred by the appellant be dismissed.

6. Having heard the learned advocates for the appearing parties, going through the record annexed with the appeal as also the paper-book supplied, it is undisputed that the appellant - wife has remarried and having a child out of the said wedlock. Not only, as coming out from the examination-in-chief of the appellant - wife, that at present she is dependent on her father and she is not earning. May be the said deposition recorded prior to her second marriage, but the fact remains that at the relevant time she was not financially independent so as to maintain herself, and therefore, there is no question of maintaining even the child, whose custody is sought for.

7. Considering the paramount interest of the child, it is better that he remains with the father instead of granting custody to the appellant - mother for the reason that if custody is granted to the mother when she is having

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another child with the second marriage, if she is not giving discriminatory treatment to the child "Het", but her second husband may not treat the child well and may give preference to their own child rather than the child of earlier marriage of the appellant. Not only that, the respondent - father is having sufficient agricultural land so as to maintain not only his family but the child also. There is one more reason why custody is not to be handed over to the appellant - wife is that the Court, while considering the proceedings under the D.V.Act, has also examined the plea of the appellant - wife for getting custody of a minor and it was denied. Though there is nothing on record to show that any appeal is preferred against that order or not but fact remains that one attempt for getting the custody of a minor child, may be under a different proceedings, has failed before the competent Court. Therefore, this another attempt, may be under the different Act, cannot be reviewed by the Court, and therefore, I see no reason to entertain this Appeal.

8. However, considering the appellant being mother and natural guardian, she cannot be denied a reasonable visiting right to the child. It appears that there is no dispute or fight in between the parties for the visitation of child. When custody for temporary period was attempted to be given to the appellant - mother in other proceeding for a brief period but it is the child who frightened with the mother and was not feeling comfortable, and therefore, ends of justice would be met if appellant - mother is

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permitted visitation right of the child "Het", twice in a year i.e. during the May Vacation as also Diwali Vacation, for a period of 03:00 hours at children room / vulnerable witness room under the Supervision of Secretary, Taluka Legal Services Committee, Visavadar.

9. For the purpose, respondent - husband is directed to notify in advance the probable date of visit, at Court premises of Visavadar, to the appellant wife so as to avail the aforesaid visitation right.

10. The Secretary, Taluka Legal Services Committee, Visavadar is directed to see that interest of child is being protected and supervise the visitation right of the appellant

- wife, not being hindered by any attempt on the part of anyone.

11. With these directions, the present appeal stands dismissed. In view of dismissal of appeal, connected applications also stand disposed of. Notice is discharged. Direct service is permitted.

(UMESH A. TRIVEDI, J.) Lalji Desai