Vaishaliben Ketulbhai Shah vs Ketulkumar Ashokbhai Shah
2023 Latest Caselaw 7629 Guj

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     C/FA/3158/2023                             ORDER DATED: 16/10/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3158 of 2023

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                    VAISHALIBEN KETULBHAI SHAH
                                  Versus
                    KETULKUMAR ASHOKBHAI SHAH
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Appearance:
MR JEET B KARIA(11991) for the Appellant(s) No. 1
MR MANISH J PATEL(2131) for the Defendant(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
                       and
       HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

Date : 16/10/2023

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)

1. By way of present First Appeal, the appellant - original

applicant has challenged the legality and validity of order

31.01.2023 passed by the learned Principal Judge, Family Court

at Vadodara, where-under application preferred under Section 7

of the Guardians and Wards Act came to be rejected.

2. The brief background of facts leading to rise of the present

appeal are that the appellant and respondent are legally wedded

wife and husband and their wedding was solemnized on

08.02.2011 as per Hindu rites and ceremony. It is the case of

the appellant that out of the said wedlock, one male child was

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born on 24.11.2013. It is the case of the appellant that she was

driven out of the matrimonial home on 30.12.2017 and the

respondent was pressurizing for divorce to be given, which has

resulted into mental and physical cruelty on the appellant. The

respondent has also administered threat and dire consequences,

including to kill the minor child. The respondent coerced the

appellant to sign the divorce papers by mutual consent on

03.04.2018 along with other papers and took away the custody

of minor child named as 'Het' from the appellant. On account of

such incident, the appellant approached the Family Court,

Vadodara to allow her to revoke the consent divorce as the same

was obtained by coercion and the same was registered as

Family Suit No. 256 of 2018 at Family Court, Vadodara in this

regard, which even came to be disposed of. The appellant

thereafter preferred application under the provisions of

Guardians and Wards Act (for short the "Act") precisely under

Section 7 of the Act for seeking custody of minor child being

Misc. Civil Application No. 142 of 2018 before the learned

Principal Judge, Family Court, at Vadodara. The said application

came to be rejected vide order dated 31.01.2023 and as such,

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being aggrieved and dissatisfied by the said order passed by the

Family Court, the appellant has approached this Court by way of

present First Appeal under Section 19 of the Family Courts Act

read with Section 47 of the Act.

3. On preliminary hearing, this Court vide order dated

25.07.2023, issued notice which was served upon the

respondent and learned advocate Mr. Manish Patel received

instructions to represent the respondent and upon request of

both the learned advocates, today, the matter was taken up for

hearing.

4. Mr. Jeet Karia, learned advocate appearing for the

appellant has submitted that the order passed by the Family

Court is not in consonance with the spirit in which proceedings

under the Guardians and Wards Act are to be undertaken. Apart

from that the decision is not well supported by any reasons. On

the contrary, the contentions which have been raised in the

application itself have not been dealt with and as such,

according to learned advocate Mr. Karia, the order suffers from

non-application of mind. It has been submitted further that the

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Family Court ought to have gone into the aspect under which

the appellant was forced to prefer this kind of application. The

relevant aspect about the averments which are made in the

application precisely in paragraphs 8, 9 and 10 ought to have

taken note of irrespective of the fact that at the relevant point of

time, right to submit evidence was closed and the learned

Judge ought to have considered further that even considering

the circumstance, visitation rights were also ordered by the

court below and as such, since the issue regarding welfare of

the child was at stake, non-consideration by a brief order

without assigning any proper reasons and non dealing with the

contentions and the averments which are narrated in the

application, same ought not have been disposed of and as such,

has requested that the order be set aside and in the alternative

has submitted that since the order passed by the Family Court is

on account of non consideration of the relevant circumstance,

which are stated in the application, the same may be remanded

back for fresh consideration for taking a fresh decision.

4. As against this, Mr. Manish Patel learned advocate

appearing for the respondent has submitted that the rojkam of

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the case is indicating that way back on 21.04.2022 right to

submit evidence was closed and not only that right to

submissions were also closed on 31.12.2022 and as such, no

error can be found of the Family Court, however, has candidly

submitted that if the order passed by the Family Court is found

to be laconic in nature, reflects no discussion regarding stand of

the appellant which is reflecting in her application, appropriate

orders be passed for which he would co-operate with the

proceedings and as such, in substance there appears to be no

much resistance about alternative request which has been made

by learned advocate Mr. Karia for remanding the matter back

for fresh consideration and has then left it to the discretion of

the Court.

5. Having heard the learned advocates appearing for the

respective parties and having gone through the material on

record, perusal of application which has been submitted under

Section 7 of the Guardians and Wards Act, would indicate in

which circumstance the appellant was constrained to move an

application and these circumstances which are very much stated

appears to have not been dealt with probably under the guise

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that right to lead evidence was closed including right to

arguments, but that would not absolve the Family Court to

examine the issue since welfare of the child is of paramount

consideration. Hence, prima facie it appears to this Court that

the order passed by the Family Court is laconic in nature, not

supported by well reasons and it appears that to some extent it

has not dealt with the assertion which has been made in the

application. Hence, on overall consideration and upon broad

submissions, the alternative prayer which has been made by the

learned advocate appearing for the appellant deserves

consideration. At this stage, we may remind ourselves to well

settled proposition of law laid down by the Hon'ble Apex Court

on the issue of remand for fresh consideration and the relevant

observations contained in the following decisions, we deem it

proper to quote hereunder, since we have considered the same.

"(1) In the case of Kushuma Devi v. Sheopati Devi (Dead) & Anr., reported in (2019) 5 SCC 744, the relevant observations contained in para 7 and 8 since considered, the Court deems it proper to reproduce the same hereunder:

"7. The need to remand the case to the High Court has occasioned because from the perusal of the impugned order dated 27.07.2012, quoted above, we

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find that it is an unreasoned order. In other words, the High Court neither discussed the issues arising in the case, nor dealt with any of the submissions urged by the parties and nor assigned any reason as to why it has dismissed the writ petition.

8. This Court has consistently laid down that every judicial or/and quasi-judicial order passed by the court/tribunal/authority concerned, which decides the lis between the parties, must be supported with reasons in support of its conclusion. The parties to the lis and also the appellate/revisionary court while examining the correctness of the order are entitled to know as to on which basis, a particular conclusion is arrived at in the order. In the absence of any discussion, the reasons and the findings on the submissions urged, it is not possible to know as to what led the court/tribunal/authority for reaching to such conclusion. (See State of Maharashtra v. Vitahla Rao Pritirao Chawan, Jawahar Lal Singh v. Naresh Singh, State of U.P. v. Battan, Raj Kishore Jha v. State of Bihar and State of Orissa v. Dhaniram Luhar.)"

(2) In the case of State of Orissa & Ors. v. Chandra Nandi reported in (2019) 4 SCC 357 and since the Court has considered the same, relevant observations contained therein is quoted here-under :

"9. The need to remand the case to the High Court has occasioned because from the perusal of the impugned order, we find that it is an unreasoned order. In other words, the High Court neither discussed the issues arising in the case, nor dealt with any of the submissions urged by the parties and nor assigned any reason as to why it has allowed the writ petition and granted the reliefs to the writ petitioner which were declined by the Tribunal.

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10. This Court has consistently laid down that every judicial or/and quasi-judicial order passed by the court/tribunal/authority concerned, which decides the lis between the parties, must be supported with the reasons in support of its conclusion. The parties to the lis and so also the appellate/revisionary court while examining the correctness of the order are entitled to know as to on which basis, a particular conclusion is arrived at in the order. In the absence of any discussion, the reasons and the findings on the submissions urged, it is not possible to know as to what led the court/tribunal/authority for reaching to such conclusion.(See State of Maharashtra v. Vitahla Rao Pritirao Chawan, Jawahar Lal Singh v. Naresh Singh, State of U.P. v. Battan, Raj Kishore Jha v. State of Bihar and State of Orissa v. Dhaniram Luhar.)"

(3) In the case of Commissioner of Income Tax-1 v. Rashtradoot (HUF) reported in (2019) 5 SCC 149, in which the Court would like to quote the relevant observations hereunder :-

"13. This Court has consistently laid emphasis that every order/judgment, which decides the lis between the parties, must contain the reason(s)/ground(s) for arriving at a particular conclusion. Indeed, what is decisive for deciding the case is not the conclusion alone but the reason(s)/ground(s) assigned in support of such conclusion, which results in reaching to such conclusion.

14. In order to decide as to whether the impugned order is legally sustainable or not, the appellate court is entitled to know as to what impelled the court below to pass such order in favour of one party and against the aggrieved party. We find that this requirement is missing in the impugned order of this case and hence the interference is called for. (See

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State of Maharashtra v. Vitahla Rao Pritirao Chawan, Jawahar Lal Singh v. Naresh Singh, State of U.P. v. Battan, Raj Kishore Jha v. State of Bihar and State of Orissa v. Dhaniram Luhar.)

6. In view of the aforesaid discussion and proposition of law

laid down by Hon'ble Apex Court in the aforesaid decisions, we

deem it proper to pass the following order which would meet

the ends of justice

(1) The impugned order dated 31.01.2023 passed by the learned Principal Judge, Family Court, Vadodara in Misc. Civil Application No. 142 of 2018 is hereby quashed and set aside and consequently it is directed that the said application be heard and decided afresh after assigning proper reasons.

(2) Since we have directed the application to be decided afresh, we desists ourselves from expressing any opinion on merits with regard to prayer made in the application since independently, the Family Court is to take afresh decision.

(3) Since the application submitted by the applicant is of the year 2018 and the order is of January, 2023, we direct the parties to co-operate with the proceedings of re- consideration of application and the same shall be disposed of preferably within a period of three (3) months from the date of certified copy of this order.

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7. With the aforesaid observations and directions, the

present appeal stands disposed of.

(ASHUTOSH SHASTRI, J)

(HEMANT M. PRACHCHHAK,J) phalguni