Piyushkumar Vrajlalbhai ... vs Rupalben Alias Rashmiben W/O ...
2022 Latest Caselaw 9062 Guj

    C/FA/1860/2022                           ORDER DATED: 13/10/2022




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                R/FIRST APPEAL NO. 1860 of 2022
                              With
           CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
               In R/FIRST APPEAL NO. 1860 of 2022
==========================================================
         PIYUSHKUMAR VRAJLALBHAI MAKHECHA
                        Versus
RUPALBEN ALIAS RASHMIBEN W/O PIYUSHKUMAR VRAJLALBHAI
                      MAKHECHA
==========================================================
Appearance:
ABHISST K THAKER(7010) for the Appellant(s) No. 1
MS RADHA A THAKER(11299) for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Defendant(s) No. 1
MS.P J.JOSHI(3888) for the Defendant(s) No. 1
==========================================================
 CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
         and
         HONOURABLE MS. JUSTICE NISHA M. THAKORE
                    Date : 13/10/2022
                       ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1.0. By way of this appeal, the appellant seeks to challenge

the legality and validity of the judgment dated 4.10.2021

passed by the learned Principal Judge, Family Court,

Junagadh under Section 9 of the Guardians and Wards Act.

2.0. The marriage was solemnized on 5.2.2003 and

daughter is born in the year 2007. The parties have

separated from 2018. The daughter is presently in the 11 th

Standard. The prayers sought for are as follows:

C/FA/1860/2022 ORDER DATED: 13/10/2022

"A. Be pleased to admit and allow this appeal: B. Be pleased to call for the Record and Proceedings of Family Suit No.59 of 2019 from the Hon'ble Family Court at Junagadh, and after perusing the legality, validity and propriety of the same, be pleased to quash and set aside the order dated 04.10.2021 below exhibit 1 with 35 passed by the Hon'ble Family Court at Junagadh at Annexure A to this appeal:"

3.0. On the ground of the Court having not jurisdiction to

entertain the Family Suit No.59 of 2019, the suit is ordered

to be returned to the plaintiff appellant on production of the

certified copy of the Exh.1. However, he has been given

liberty to present the suit before the competent Court of

jurisdiction within 30 days.

4.0. Section 9 of the Guardians and Wards Act provides for

the Court having the jurisdiction to entertain the

application with respect to the guardianship of the person of

the minor, which needs to be made to the District Court

having jurisdiction in the place where the minor ordinarily

resides. A solitary test for determining the jurisdiction of the

Court under Section 9 of the Act as per the decision of the

Apex Court in Ruchi Manju vs. Sanjiv Manju is the ordinary

C/FA/1860/2022 ORDER DATED: 13/10/2022

residence of the minor, which signifies something more than

the temporary residence of a person.

5.0. The minor daughter since presently is residing at

Vadodara along with the mother and not residing the within

the jurisdiction of the Junagadh Court this application has

not been entertained on the ground of jurisdiction.

6.0. After this Court attempted the settlement between the

parties, the daughter was called over on 11.07.2022. The

order passed thereafter was as follows:

"We met the parties and the daughter begotten out of the said wedding. We could notice that the daughter is matured enough to know her mind as she is presently studying in 11th Science. She intends to pursue the medical profession. According to her, she is desirous to continue with her mother, however she does not mind if the father has visitation right on a limited days as she has to focus more on her studies being in the Science stream. 2. The appellant - husband has difficulty in contacting her. It has been agreed that he would buy her (daughter) a mobile phone through which on every Saturday he can speak to her father. Let the timings of this talk be between 11:00 am to 12:00 pm. The last Saturday of every

C/FA/1860/2022 ORDER DATED: 13/10/2022

English calendar month, he can visit the daughter from 10:00 am to 12:00 pm or the time as may be suitable to the daughter because of her busy study schedule. Let this be worked out between the parties. If the daughter agrees to extend it for a further period, the same shall not be in any manner fettered by this order. 3. Let this arrangement be worked out for now. Matter is being posted on 04.08.2022."

7.0. Today, the parties were once again called. They also

are represented by the learned advocates, who also have

assisted in bringing an amicable settlement between them.

It appears that the appellant father has agreed to deposit a

sum of Rs.10,000/- in the account of the wife for

purchasing the mobile phone for the daughter. Let, her have

that instrument and she would also purchase the sim card.

The plan of around Rs.1000/- per month that the daughter

would like to select, shall be then shared with the father by

her. Let this be done within 10 days from now.

8.0 He foregoes his right to custody of the child and is

satisfied with the right of visitation as this Court at the time

of passing an order on 11.07.2022 had worked the interim

C/FA/1860/2022 ORDER DATED: 13/10/2022

arrangement that shall continue to be operative between

the parties. He would additionally be permitted to make a

request for the daughter to join him during vacation period

for about 10 to 15 days as may be convenient to her and to

the father himself. With the expressed consent of the

daughter, we also permit to take her out on holidays, if they

chose to so planned. The education fees had been paid of

Rs.10,000/- presently and he is also ready to further bear

that expenses as she plan to join the stream of medicine. As

we had noticed from our talked with the daughter who

though is minor under the law being under the age of 16

years and has expressly wished to continue to be with the

mother.

9.0. Our attempt to bring about complete end to all the

disputes so far has not succeeded due to allegations and

counter allegations of the parties. At one point of time, we

also had contemplated to refer the matter for getting the

report of Intelligence Bureau and as he has chosen not to

pursue this matter any further, present First Appeal stands

C/FA/1860/2022 ORDER DATED: 13/10/2022

disposed of accordingly.

In view of disposal of the First Appeal, Civil Application

also stands disposed of.

(SONIA GOKANI, J)

(NISHA M. THAKORE,J) KAUSHIK J. RATHOD