Gujarat High Court
Devangi W/O Bhavik Rohitbhai Pandya, ... vs Bhavik Rohitbhai Pandya on 13 October, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1904 of 2020
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020
In R/FIRST APPEAL NO. 1904 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
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Approved for Reporting Yes No
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DEVANGI W/O BHAVIK ROHITBHAI PANDYA, D/O BHARATBHAI TRIVEDI
Versus
BHAVIK ROHITBHAI PANDYA & ORS.
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Appearance:
MR BJ TRIVEDI(921) for the Appellant(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the Appellant(s) No. 1
MS. URVASHI PUROHIT, AGP, for the Defendant(s) No. 6
MR HARSHAD K PATEL(2844) for the Defendant(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
Date : 13/10/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The First Appeal is filed by the wife under Section 19 of
the Family Courts Act challenging the order passed below
Exh.1 dated 11.09.2020 and 29.08.2020 in Family Suit in
2020, which was numbered as Preliminary Inquiry No.1 of
2020. By an order dated 29.08.2020 by the Principal Family
Judge, Family Court, Amreli, an order was passed for
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preliminary hearing on the issue of maintainability of the suit
qua the prayer for filing a criminal complaint under Section
406 of the Indian Penal Code. The order dated 11.09.2020 was
passed to cancel the registration of the family suit as being
beyond the scope of Section 7 of the Family Courts Act.
2. The facts in brief are that the appellant is wife of
respondent No.1 (since deceased), whereas respondent No.2
to 5 are family members of respondent No.1. The family suit
was filed with a prayer as under:-
"(a) the present suit may please be decreed, in terms
whereof the defendants or any one or more of them, be
directed to forthwith hand over the 'stridhan' articles,
the details whereof have been given hereinabove and
also, all the original certificates of the plaintiff and her
minor son Hriday, which have not been returned to the
plaintiff, be directed to be handed over to the plaintiff
forthwith, acting as the guardian of her minor son or in
the alternative, to award current market value of the
said articles, approximately values at Rs.18,34,000/-."
3. The basic facts with regard to the matrimonial disputes
are that the wedding i.e. marriage ceremony between the
appellant-wife and the respondent-husband took place on 22-
11-2009. Photograph, taken during marriage ceremony is
produced with the list of documents. The respondent-husband
had then been working at Pipavav Ship Yard at the relevant
time. The appellant-wife joined service as a teacher in a
Government school at Bherai, Amreli on 10-12-2008 and used
to stay at Bherai during weekdays i.e. school days and used to
return to her parents home during holidays. After the
marriage with the respondent-husband, the appellant-wife
continued the service and used to up-down from Mahuva in
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Bhavnagar District to Bherai. She came to be transferred to
Khera-1 Prathmik Shala (Primary School), Amreli and
resumed duties by joining service there from 31-07-2012 and
has been still serving there as a teacher. at the relevant time
due to Covid-19 pandemic, the appellant-wife is required to
attend the said school once a week on Wednesdays. The
appellant-wife was thereafter attending the school by visiting
Khera from Amreli on every Wednesday.
3.1. The appellant-husband got a job in Hitachi and shifted to
Ahmedabad in or around 2010 end and then got a job with
Torrent Power Ltd. at Surat immediately and shifted to Surat.
In February, 2011, the appellant-wife visited Surat and stayed
there with the respondent-husband for about 21 days. The
appellant-wife again visited Surat in May, 2011, after it was
diagnosed that the appellant-wife was pregnant and stayed
there for about 28 days. A son, named Hriday, was born on
15-12-2011 at Mahuva. In or around August, 2012, the
appellant-wife went to Surat with minor son Hriday, lovingly
called as 'Babu' and stayed there for about 78 days. The
respondent-husband got a job in Ford at Sanand and he
shifted to Ahmedabad again. The respondent-husband
continued in the said job in Ford at Sanand in Ahmedabad
[Rural] District for about 7 years and during the said period,
the appellant-wife used to visit respondent-husband at
Ahmedabad regularly and occasionally, the respondent-
husband also visited Mahuva, District Bhavnagar sometimes,
when it was not convenient for the appellant-wife to visit
Ahmedabad. In or around August, 2015, the appellant-wife
and the respondent-husband jointly purchased a flat at
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Ahmedabad. A loan of 42 lakh rupees was obtained from
HDFC Bank Ltd. for the same. It was agreed between the
appellant-wife and the respondent-husband that he would be
paying the installments for repayment of the said loan from
his salary and the appellant-wife will spend after the
education of minor son Hriday @ 'Babu' and also bear other
necessary expenses. The appellant-wife also contributed in the
purchase of the house by contributing around 2.5 lakh rupees
and father of the appellant-wife viz. Bharatbhai Jayantkumar
Trivedi lent 5 lakh rupees, out of which about 3 lakh rupees
are returned to him. It transpires that the respondent-
husband did some jobs with different employers from time to
time and also, remained without work for some time. Lastly,
He has been the employment with Sintex Yarn Ltd., to work at
its plant at Village Lungopur, Amreli.
4. The proceedings pending the present appeal had also
turned very bitter and there appears to be an offshoot on
account of certain incidents, which took place in connection
with the orders passed by this court for which the appellant
had filed proceedings under Right to Information Act and
which ultimately was brought before this Court by way of
Special Civil Application No.2875 of 2021 which was ordered
to be heard with the present appeal, but has been disposed of
after hearing jointly by a separate order.
5. Though may not be touching on the merits of the case,
the Court may refer to these orders to indicate the path which
the present appeal has passed through.
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An order was passed on 08.10.2020 issuing notice in the First
Appeal and certain directions in Civil Application. The order
dated 08.10.2020 passed in Civil Application reads as under:-
" Notice returnable on 02.11.2020. By ad interim order,
the Registrar of the Family Court, Amreli is hereby
directed to take inventory of the items which are
mentioned at pages 22 to 30 of the plaint, which are in
custody of the respondents and as far as the original
documents which are mentioned is concerned, shall be
sealed and kept in custody of the Family Court at Amreli.
The Registrar of Family Court shall carry out the
inventory and service of this order simultaneously. As
far as gold items are concerned, which are lying in the
locker, shall not be permitted to be removed from the
locker. The Registrar of Family Court shall cause service
of this order upon the concerned bank authorities.
Notice to respondents no.1 to 5 to be served in presence
of Registrar of Family Court. D.S permitted. D.S. is
permitted through email additionally".
6. This order was followed by an order dated 02.11.2020,
which would read as under:-
"Heard Mr. Brijesh Trivedi, learned advocate for
the appellant. Mr. Harshad K Patel, learned advocate
states that he has instructions to appear for and on
behalf of respondent nos. 1 to 5.
As per the order dated 8.10.2020, this Court has
directed inventory report, which is awaited. Registry is
directed to call for the report of the same from the
Family Court, Amreli so as to reach this Court on or
before 6.11.2020. On receipt of the copy of the report,
copy thereof be provided to the learned advocates for
the respective parties.
Mr. Brijesh Trivedi, learned advocate for the
appellant has also drawn attention of this Court to the
affidavit filed by the appellant. Stand over to 5.12.2020."
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7. In order dated 09.12.2020, this Court has recorded
submission of inventory report dated 12.10.2020.
8. In order dated 21.12.2020, certain issues were noticed
by this Court with regard to carrying out the work of
inventory which is recorded by this Court in paras-2 and 3,
which read as under:-
"2. What was directed by the court to the Registry was
to get the report typed in legible copy since the same
was hand-written and not legible. Today, when the
matter comes up for consideration, even hand-written
copy of the report is not available. On the contrary, there
appears office submission dated 17.12.2020 stating that
the report was sent to the family court to submit legible
copy. This recourse taken by the Registry is beyond
comprehension since the Registry was directed to get
typed copy of the report. Be as it may."
"3. The subsequent developments are more disturbing.
Learned Principal Judge, Family Court, Amereli,
addressed letter dated 17.12.2020 to the Registrar
General of this court stating that the report could not be
typed since the in-charge Registrar who had conducted
the inventory, has proceeded on leave from 15.12.2020.
This is incomprehensible stand on part of the Family
Court to submit that because of somebody going on
leave, the report could not be typed. Before the court
passes any strict direction, let the registry of this court
may do the needful."
9. By order dated 16.02.2021, taking cognizance of certain
happenings brought on record by way of an affidavit dated
12.10.2020 filed by the appellant, the Court ordered Registrar
General of the High Court to depute officer and look into the
allegations and file report in seal cover.
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10. Submission of report in sealed cover was perused by
earlier Benches of this Court and by order dated 30-07-2021,
detailed order recording previous orders was passed for
taking up the matter for final disposal and it is at that stage
that Special Civil Application No.2875 of 2021 was ordered to
be listed by separate order dated 23-08-2021.
10.1 This Court in its order dated 06-09-2021 has recorded as
under:
"Prima-facie, we are of the view that the case on hand is
one of an irretrievable breakdown of marriage. The
parties are married past almost 11 ½ years. The appellant
does not seem to be very eager to reconcile. In such
circumstances, we would suggest that the parties should
sit together and think about dissolving the marriage,
subject to the certain terms and conditions. The appellant
- Devangiben (wife) is personally present in the Court
today alongwith her son. The mother of the respondent
No.1 is reported to be unwell, and therefore, the
respondent no.1 -Bhavikbhai (husband) has not been able
to remain present. Post this matter on 13.09.2021. On the
next date of hearing, the appellant - wife and the
respondent no.1 - husband both shall personally remain
present, so that we can talk to them and try to find out
some way. On the next date, the matter shall be taken for
hearing in the chamber at 02:00 p.m"
11. Again in order dated 11-10-2021, this Court has
recorded as under:
"We have heard Mr. B.J. Trivedi, the learned counsel
appearing for the appellant (wife) and Mr. Harshad K.
Patel, the learned counsel appearing for the respondents
at length. We would like to make one last attempt to
persuade the husband to put an end to this marriage
subject to certain terms and conditions. We are saying so
because the case is one of an irretrievable break down of
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marriage. We see no ray of hope of any reconciliation.
This time, we want the parents of the respondent No.1
also to remain present before us. We direct the
respondent Nos.1,2 and 3 respectively to personally
remain present before this Court on 25th October, 2021.
The matter will be taken up in the chamber at 5:00 p.m.
Mr. Patel, the learned counsel, shall communicate about
this order to his clients.
Stand over to 25th October, 2021."
12. The Court may thereafter refer to the order dated 07-06-
2022, which recorded its order about expiry of the
respondent-husband. This incident had bearing effect on the
ongoing litigation and thereafter also, several orders have
been recorded regarding change of Advocates for respondent
side, which may not be necessary for this Court to refer.
13.2. During the pendency of the present appeal, respondent
no.1 (husband) has expired and the same has been recorded
by an order dated 07.06.2022.
14. Learned Advocate for the appellant-wife has submitted
that merely because a relief under Section 406 of the Indian
Penal Code was sought, the entire Family Suit should not have
been rejected at the threshold and that the Family Court has
erred in refusing to register the suit which was otherwise
maintainable.
14.1. Learned Advocate has further submitted that a civil suit
cannot be dismissed except under the circumstances which
have been expressly provided in the Code of Civil Procedure.
However, none of the circumstances were applicable in the
present case and even if it is assumed that one of the reliefs
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claimed could not be granted, the proper course should have
been to proceed with the suit to the extent maintainable and
that the Family Court has erred by dismissing the suit in its
entirety.
14.2. Learned Advocate has further submitted that the
Family Court has failed to appreciate the ambit of Section 7(1)
(a) of the Family Courts Act which confers jurisdiction in
respect of the suit between the parties to a marriage relating
to the property of the parties or either of them. It has been
further submitted that a suit for recovery of stridhan clearly
falls within Explanation (c) to Section 7(1) of the Family
Courts Act and therefore, the Family Court had jurisdiction to
decide the suit.
14.3. Learned Advocate has further submitted that even
if the Family Court was of the view that the prayer referring
to Section 406 of the Indian Penal Code was beyond the
scope, it could have directed deletion of that relief but could
not have rejected the entire suit and that such a rejection has
resulted in failure to exercise jurisdiction which is vested in
the Family Court.
14.4. Further, it is submitted that even upon
presumption that there was no mention of Section 406 of the
Indian Penal Code, once it comes to notice that there has been
an illegal retention of stridhan, the Family Court could direct
the police authorities to take cognizance of the criminal
offence.
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15. In the present proceedings, the respondents have
appeared party-in-person. Upon perusing the record it
appears that an affidavit-in-reply has been filed before this
Court on behalf of respondent Nos.1 to 5 by respondent No.1-
husband (who has since expired). The contentions raised
therein, on behalf of the respondents, are as under:
15.1. The respondents have submitted that the impugned
judgment and order dated 11.09.2020, passed by the learned
Principal Judge, Family Court, Amreli in Criminal Inquiry Case
No.1 of 2020, is just, legal and proper, having been rendered
after considering the facts and circumstances of the case as
well as the provisions of law and this appeal is therefore liable
to be dismissed.
15.2. The respondents further submitted that there is no
provision under the Family Courts Act, 1984 to initiate
prosecution against any party. The Family Court, therefore,
rightly exercised powers under Section 7 of the Act and
rejected the application of the appellant-wife on the ground of
lack of jurisdiction and that, the appellant has failed to
establish that the Family Court had jurisdiction to entertain
such an application.
15.3. The respondents further submitted that the appellant,
who is the wife of respondent No.1, had left the matrimonial
home after quarrels, and at the time of leaving had already
taken her stridhan and ornaments however, with a view to
harass and pressurize the respondents, the appellant filed the
proceedings before the Family Court seeking prosecution
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under Section 406 IPC as well as return of stridhan.
15.4. The respondents have also submitted that this Court, by
order dated 08.10.2020, directed the Registrar of the Family
Court, Amreli to prepare an inventory of the articles
mentioned in the plaint and to seal the original documents. It
was stated that the Registrar complied and submitted a report
dated 12.10.2020, and subsequently a further report dated
16.02.2021 was also placed on record. The respondents
submitted that the appellant-wife has raised false grievances
regarding the said inventory proceedings and made
allegations against the Registrar without any basis.
16. Having recorded submissions made by both the sides
and with due regards to orders passed by various Benches of
this Court from time to time and limited scope that now
remains even in connection with main proceedings initiated
by wife in Family Suit filed in the year 2020 for prayers as
mentioned herein above, in the opinion of the Court, the
Family Suit filed for twin Prayers-(a) and (b) of which,
impugned order was passed only by considering Prayer
Clause-(b), whereas Prayer Clause-(a) is seeking for direction
to hand over 'Stridhan Articles' as well as original Certificates
of the plaintiffs and minor son out of wedlock would survive.
16.1 The appellant-wife (original plaintiff) had instituted a
Family Suit in the Family Court at Amreli for recovery of her
'Stridhan' and documents from the respondents and it was
averred in the suit that the unlawful retention of such
'Stridhan' constitutes a criminal offence and therefore, a
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prayer was accordingly made to punish the respondents
(defendants) under Section 406 of the Indian Penal Code. The
Principal Judge, Family Court, Amreli instead of registering
the suit, had framed a preliminary issue by an order dated
29.08.2020 as to whether the Family Court has jurisdiction
under Section 7 of the Family Courts Act to adjudicate upon a
claim under Section 406 of the Indian Penal Code in a Family
Suit for recovery of 'Stridhan' and ordered that a P.H.
(Preliminary Hearing) number be given.
16.2 Accordingly, the said application has been registered as
Preliminary (Criminal) Inquiry No.1 of 2020, Thereafter, upon
proxy report being filed on behalf of the appellant-wife
(applicant), the matter was taken up for hearing on
07.09.2020 through video conferencing and the submissions
of the proxy advocate were heard therein. The Court
thereafter by an order on 11.09.2020 held that the application
filed as Family Suit was not maintainable and rejected the
same. The appellant-wife aggrieved by the aforesaid orders
has preferred an appeal under Section 19 of the Family
Courts Act which came to be admitted by a detailed order
passed by a coordinate bench of this Court on 30.07.2021. this
para after para 16.
17. The Court has taken into consideration the decision of
Apex Court in case of Pratibha Rani v/s. Surajkumar and
Anr, reported in, 1985 (2) SCC 370, wherein the Apex
Court has held as under:
"21. .....There are a large number of cases where
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criminal law and civil law can run side by side. the two
remedies are not mutually exclusive but clearly
coextensive and essentially differ in their content and
consequence. The object of the criminal law is to punish
an offender who commits an offence against a person,
property of the State for which the accused, on proof of
the offence, is deprived of his liberty and in some cases
even his life. This does not, however, affect the civil
remedies at all for suing the wrong deer in cases like
arson, accidents, etc. It is an anathema to suppose that
when a civil remedy is available, a criminal prosecution
is completely barred. The two types of actions are quite
different in content, scope and import. It is not at all
intelligible to us to take the stand that if the husband
dishonestly misappropriates the stridhan property of his
wife, though kept in his custody, that would bar
prosecution under Section 406 I.P.C. Or render the
ingredients of Section 405 IPC nugatory or abortive. To
say that because the stridhan of a married woman is
kept in the custody of her husband, no action against
him can be taken as no offence is committed is to
override and distort the real intent of the law."
18. The Court has also taken into consideration an order
dated 11.08.2021 passed by the Apex Court in the case of
Sunita Manoj Sinh v/s. The State of Maharashtra [Misc.
Application No. 916 of 2021 in Transfer Petition (Crl.) No. 296
of 2017] wherein it has been observed by the Apex Court that
the Family Court cannot deal with a criminal complaint for
various offences under the IPC.
19. The Apex Court in case of Vinod Infra Developers
Limited v/s. Mahaveer Lunia and others, reported in,
2025 INSC 772 has taken into consideration while dealing
with the facts of the case of rejection of plaint under Order 7
Rule 11 and held that if the plaint discloses distinct triable
causes of action then, the plaint cannot be rejected in entirety
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under Order 7 Rule 11. The facts of the case before the Apex
Court was regarding a civil suit filed for declaration and
possession of the land based on revocation of unregistered
power of attorney and misuse of loan security document. The
challenge was with regard to the sale deed executed
subsequent to the revocation of the documents claimed to be
that of mortgage and not sale and therefore, the trial Court
had dismissed the application under Order 7 Rule 11 holding
that there was no triable issue, whereas the High Court
reversed the order of the trial Court and rejected the plaint.
The Apex Court taking into consideration that the plaint had
raised multiple cause of actions and therefore, rejection of
plaint merely because of one cause of action would be barred
is not a correct proposition. Though the ratio laid down by the
Apex Court in the realm of Order 7 Rule 11, in the opinion of
the Court, the analogy can be made applicable to the facts of
the present case, where the Family Court had taken into
consideration only prayer clause (B) and holding the same to
be beyond the jurisdiction of the Family Court and thereby
rejected the Family Suit in entirety, which is not in
consonance with the aforesaid decision of the Apex Court.
20. In view of the aforesaid facts situation, the Court is
inclined to remand the matter back to the Family Court at
Amreli for the purpose of Prayer Clause-(a) and upholding
impugned judgment and order to extent of not entertaining
Prayer Clause-(b). As a result, the Family Court is directed to
take up the Family Suit for Prayer Clause-12(a) and in view of
time that has lapsed and the incidents which have taken place
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in the interregnum period, the Family Court may give due
priority to this Family Suit.
21. With the aforesaid, First Appeal stands disposed of.
22. In view of the order passed in the First Appeal, Civil
Application does not survive and hence, disposed of
accordingly.
(A.Y. KOGJE, J)
(N.S.SANJAY GOWDA,J)
SIDDHARTH
