Keval Hareshbhai Shah vs Subhashbhai Tulsidas Mehta
2023 Latest Caselaw 696 Guj

     C/FA/233/2023                            ORDER DATED: 25/01/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/FIRST APPEAL NO. 233 of 2023
                                With
          CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
                In R/FIRST APPEAL NO. 233 of 2023
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                     KEVAL HARESHBHAI SHAH
                               Versus
                  SUBHASHBHAI TULSIDAS MEHTA
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Appearance:
MR PRATIK Y JASANI(5325) for the Appellant(s) No. 1
MR HARSHIL C DATTANI(6241) for the Defendant(s) No. 1,2
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  CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
         and
         HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                          Date : 25/01/2023

                            ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

[1.0] By way of present First Appeal under Section 19 of the Family Courts Act, 1984 read with Section 47 of the Guardian and Wards Act, 1890, the original respondent - father of minor female child viz. Dhyani, whose date of birth is 05.11.2016, has challenged the judgment and order dated 20.01.2022 passed by the learned Principal Judge, Family Court, Jamnagar (hereinafter referred to as "learned Judge") in Civil Misc. Application No.04/2021 by which the said application filed by the respondents herein - grand parents of the minor Dhyani came to be allowed directing the appellant herein - original respondent to drop the minor daughter Dhyani at the house of respondents herein at 10.00 a.m. and take her back at 06.00 p.m. on every second and fourth Sunday of each calendar month.

C/FA/233/2023 ORDER DATED: 25/01/2023

[2.0] The short facts arising from the record of the case are as follows:

[2.1] That, the appellant herein married daughter of the respondents herein viz. Mamta on 04.07.2014 at Jamnagar. Out of the wedlock, the appellant herein and Mamta became parents of minor Dhyani on 05.11.2016. That, in an unfortunate incident, the mother of minor Dhyani i.e. Mamta passed away due to electrocution on 13.11.2019. Thereafter, minor Dhyani was residing with her father i.e. appellant herein at Jamnagar at the address shown in the cause title of the present proceedings.

[2.2] It was the case of the respondents while filing application under Sections 5, 7 and 17 of the Guardian and Wards Act, 1890 that the present appellant i.e. the father of minor Dhyani is likely to marry again and was not permitting them to meet minor Dhyani and therefore, requested to grant custody of minor Dhyani. The said application was opposed by the appellant herein.

[2.3] The learned Judge after considering the case before him, allowed Civil Misc. Application No.04/2021 vide the impugned order.

Hence, present First Appeal.

[3.0] Learned advocate Mr. Harshil Dattani has filed caveat on behalf of the respondents herein - grand parents of minor Dhyani and has assisted this Court.

[4.0] Learned advocate Mr. Pratik Jasani appearing for the

C/FA/233/2023 ORDER DATED: 25/01/2023

appellant would submit that the learned Judge has committed an error in granting visitation rights to the present respondents on every 2nd and 4th Sunday of each month which may disturb the day to day life of minor Dhyani. He would submit that instead of giving custody of minor Dhyani from 10 a.m. to 6 p.m. on every 2nd and 4th Sunday of each month, appellant is ready to welcome the respondents if they visit his residence which is also at Jamnagar. He, therefore, would submit that the impugned order accordingly be quashed by allowing the appeal.

[5.0] On the other hand, learned advocate Mr. Harshil Dattani appearing for the respondents - maternal grand parents of minor Dhyani has opposed this appeal. He would submit that they have lost their daughter Mamta in an unfortunate incident and they have never been granted visitation right of their grand-daughter by the learned Judge and vide the impugned order the respondents herein have been granted visitation rights that too only on 2nd and 4th Sunday of each month from 10 a.m. to 6 p.m.. He would submit that both the parties are residing at Jamnagar only hence, there would be no difficulty for the appellant to hand over the custody of minor Dhyani as ordered by the learned Judge. He would therefore request that first appeal be dismissed.

[6.0] We have heard learned advocates appearing for the respective parties.

As stated hereinabove, the wife of the appellant i.e. daughter of the respondents herein lost her life in an unfortunate incident. When she passed away, minor Dhyani was aged only around 3 years. On query, learned advocate Mr. Jasani

C/FA/233/2023 ORDER DATED: 25/01/2023

submitted that the appellant is residing with his parents.

[6.1] Having gone through the impugned order and considering the peculiar facts and circumstances of the case, only temporary custody has been handed over to respondents herein i.e. maternal grand-parents of minor Dhyani, who are also entitled to see their grand-daughter especially in view of the fact that they have lost their daughter i.e. mother of minor Dhyani and therefore, we do not find any reason to interfere with the impugned order passed by the learned Judge.

[7.0] Hence, present First Appeal being devoid of merits is hereby dismissed.

In view of dismissal of First Appeal, Civil Application (For Stay) No.1 of 2022 also stands dismissed.

(A.J. DESAI, J.)

(RAJENDRA M. SAREEN, J.) Ajay