Gujarat High Court
Makwana Mahendrabhai Mohanbhai vs Makwana Pushpaben Mahendrabhai on 8 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/3127/2024 ORDER DATED: 08/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3127 of 2024
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MAKWANA MAHENDRABHAI MOHANBHAI
Versus
MAKWANA PUSHPABEN MAHENDRABHAI
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Appearance:
MR DHRUV R THAKKAR(11280) for the Appellant(s) No. 1
BINNI B DESAI(9072) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 08/01/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)
1. The present Appeal is filed under Section 96 of the Code
of Civil Procedure challenging the judgment and decree passed
by the learned Family Court, Ahmedabad in Family Suit
No.1921 of 2017, whereby the suit of the plaintiff-respondent
was decreed.
2. Heard learned advocate Mr. Dhruv R. Thakkar for the
appellant and learned advocate Ms. Binni B. Desai for
respondent.
3. With the consent of the learned advocates for the parties,
this matter is taken up for final hearing.
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4. The brief facts of the case are as under:-
4.1. Plaintiff-respondent filed the suit for a relief of permanent
injunction restraining appellant-defendant from transferring the
suit property i.e. G-103, Karnavatinagar, Opposite Municipal
Swimming Pool, Sabarmati, Ahmedabad by way of executing a
sale deed, mortgage, gift deed etc. and also from creating any
right in the suit property. The marriage between the appellant-
husband and respondent-wife was solemnized before 31 years
and two children namely Sanjay and Hitendra were born out of
the said wedlock. The appellant started humiliating respondent
physically as well as mentally under the influence of liquor and
did not give money for household expenses, medical treatment
of children. The respondent purchased a residential property
being the suit property and thereafter, appellant and respondent
shifted in the suit property. Even after shifting in the suit
property, the harassment continued which resulted into an
attempt of suicide by the respondent-wife. Later on, appellant
insisted to allow one female friend named Ranjan to reside in
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the suit property with the appellant and respondent. The
appellant threatened respondent to vacate the suit property as he
intends to sell the same. Resultantly, the suit came to be filed by
the respondent-wife against the appellant-husband for a relief of
permanent injunction.
5. Learned advocate for the appellant submitted that the
respondent has suppressed the material facts and the decree has
been obtained by fraud. It is further submitted that the
respondent after the marriage, started harassing the mother-in-
law and many a time, leaders of the society were called to
resolve the dispute. Because of the constant quarrels of the
respondent, the appellant along with respondent moved to
Ahmedabad from Mehsana with the children. It is further
submitted that the suit property was purchased by the appellant
in the year 2001 on loan that was availed from a private Bank.
The appellant has paid loan installments from 2001 to 2018 but
thereafter, because of financial crisis, appellant has defaulted in
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C/FA/3127/2024 ORDER DATED: 08/01/2025
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repayment of loan installments. It is further submitted that the
respondent had beaten the appellant and kicked him out of house
and the appellant has been living in a rented house since
16.05.2017. It is further submitted that the respondent has
alternate accommodation also but she has suppressed the said
fact in the plaint. It is further submitted that the appellant is also
paying Rs.20,000/- per month as maintenance under the
proceedings filed by the respondent-wife. It is, therefore, prayed
that the appeal may be allowed and the judgment and decree
may be quashed and set aside.
6. Per contra, learned advocate for respondent-plaintiff
supported the judgment and decree passed by the learned Family
Court and submitted that upon the insistence of the family
members of the appellant, the appellant and respondent shifted
in the suit property, which was purchased by the appellant. The
appellant used to harass her after marriage and after shifting to
Ahmedabad from Mahesana, the appellant insisted to keep one
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lady Ranjan in the suit property. As respondent refused such
demand of appellant, appellant left the suit property leaving
respondent and two children in the suit property. As the
appellant defaulted in repaying the loan installments, the Bank
issued a notice. It is submitted that after the appellant stopped
paying installments of loan, the respondent is paying
installments against the loan. It is submitted that as appellant
was not maintaining two children and respondent, the
respondent filed Criminal Miscellaneous Application No.2290
of 2017 under Section 125 of the Code of Criminal Procedure
and also filed a complaint under the provisions of the Protection
of Women from Domestic Violence Act, 2005 against the
appellant. The appellant was directed to pay Rs.20,000/- as
maintenance under the proceedings of Section 125 of Cr.P.C. It
is further contended that the respondent being a legally wedded
wife of the appellant, she has a right to reside in the suit
property and if the appellant succeeds in his motive of selling
out the suit property, the respondent would be shelter-less. It is
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further contended by learned advocate for the respondent that
the appellant has not fully completed the cross-examination and
has also not filed any oral or documentary evidence in the suit
proceedings. In absence of any contrary evidence, the appeal
requires to be dismissed by upholding the findings arrived at by
the learned Family Court.
7. We have considered the submissions of learned advocates
for the parties and also perused the record. Appellant and
respondent are husband and wife and are married for more than
31 years prior to 2017. Two children were aged about 28 years
and 26 years respectively at the time of filing the suit. The suit
property was undisputedly owned by the appellant-husband. The
suit property was having a charge of bank from whom, a loan
was availed of by the husband. The appellant contested the suit
by filing a Written Statement at Exhibit-15, but learned trial
Court has observed that the respondent wife was not cross-
examined fully and left the cross-examination incomplete. It has
been observed by the learned trial Court that the appellant,
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thereafter, has neither led any oral nor documentary evidence in
support of his contentions. Learned advocate for the appellant
could not contradict the said fact which has come on record.
During the course of submissions, learned advocate for the
appellant could not point out any illegality being committed by
the learned Family Court in decreeing the suit. What has been
urged before us by the appellant is that the respondent-wife has
an alternative accommodation and the respondent-wife has
suppressed material facts. To substantiate the contentions raised
by the appellant, nothing adverse could be pointed out from the
record which can weigh this Court to disturb the findings of fact.
In catena of decisions, the law has been laid down that merely
because a second view is available, the appellate Court should
not re-appreciate or re-evaluate the evidence.
8. In the above set of facts, we are of the opinion that the
respondent-wife is entitled to retain the possession of the suit
property and the appellant cannot, by way of a short-cut method,
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evict respondent from the settled possession. By not contesting
the suit and thereafter, challenging the judgment and decree
passed by the learned Family Court, speaks volume about the
conduct of the appellant. The appellant could not point out as to
how and in what manner the impugned judgment and decree is
hurting him. It seems from the conduct of the appellant during
the trial that the challenge is made against the impugned
judgment and decree just to see that the litigation is dragged
unnecessarily. As we do not find any illegality being committed
by the learned Family Court in decreeing the suit, First Appeal
is dismissed. Record and proceedings, if received, be sent back
to the concerned Court.
(BIREN VAISHNAV, J)
(D. M. DESAI,J)
RINKU MALI
