[Cites 11, Cited by 0]
Gujarat High Court
Utkarsh Sunil Trivedi vs Maitri Desai on 21 April, 2026
NEUTRAL CITATION
C/SCA/5466/2026 JUDGMENT DATED: 21/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5466 of 2026
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UTKARSH SUNIL TRIVEDI
Versus
MAITRI DESAI
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Appearance:
MR VINAYAK V GOSWAMY(13167) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 21/04/2026
JUDGMENT
1. Present petition is directed against impugned order
dated 18.12.2025 passed by the learned Family Court, Valsad,
whereby the application filed by the petitioner seeking
counseling of minor daughters through a qualified child
counselor has been rejected.
2. For admission of this petition, I have heard learned
advocate Mr. Vinayak Goswamy for the petitioner.
3. Learned advocate Mr. Goswamy would submit that
learned Family Court, Valsad in Family Suit No.91 of 2025
passed an erroneous order below Exh.18 rejecting the prayer
of the petitioner seeking counseling of minor daughters
through a qualified child counselor. He would further submit
that the children have been living separately with their
mother since the parties separated. The daughters, who are
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approximately 7 to 8 years of age, showed hesitance and
reluctance in meeting their father. He would further submit
that on 24th March, 2024, when the petitioner met the minor
daughters in the presence of the mother and her family
members, the daughters initially recognized their father and
interacted with him, but thereafter distanced themselves.
3.1 To buttress his submission, learned advocate Mr.
Goswamy relied upon judgment of the Hon'ble Apex Court in
case of Selvaraj Vs. Revathi, (2024) 13 SCC 534 and
submitted that the Court can pass an order for counseling of
children in peculiar facts and circumstances of the case. He
would further submit that in the present case, the
photographs at Annexure B show the children appearing
happy, however, subsequent conduct indicates that the
children may have been influenced against their father,
raising serious concern regarding parental alienation. He
would further submit that the aforesaid scenario indicates that
welfare of two minor daughters are at stake and therefore,
both of them required counseling. He would further submit
that welfare of children is paramount consideration in a child
custody matter or where issue of visitation right involves.
3.2 Learned advocate Mr. Goswamy also relied upon the
judgment of the Delhi High Court in case of Vikas Agarwal
Vs. Geeti Mathur reported in MANU/DE/0366/2017. He
would further submit that initially, under the visitation, the
petitioner was able to meet the minor daughters and it was
happy time for both the father and minor daughters, but then,
the minor daughters started changing their behaviour and
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now, refused to meet the petitioner, which is unacceptable
and perhaps it is a result of poison poured in the ears of two
minor daughters by her mother.
3.3 Learned advocate Mr. Goswamy also relied upon the
judgment of the Hon'ble Apex Court in case of Ruchi Majoo
Vs. Sanjeev Majoo reported in AIR 2011 SC 1952 so also
judgment of the Division Bench of this Court in case of
Aparna Jigarbhai Vala Vs. State of Gujarat, 2024(1) GLH
1348 and the judgment of the Calcutta High Court in case of
Antara, a non-profit Society and another Vs. the Hon'ble
High Court at Calcutta, service through Registrar
General, High Court rendered in WPA(P) 166 of 2002 and
submitted that the learned Family Court has committed serious
error in rejecting the application for seeking counseling of minor
daughters through a qualified child counselor.
3.4 Upon above submission, learned advocate Mr. Goswamy
prays to admit and allow present petition.
4. At the outset, let refer the nature of scope of the
supervisory jurisdiction under Article 227 of the Constitution of
India, which is enlightened in case of Garment Crafts Vs.
Prakash Chand Goel reported in (2022) 4 SCC 181, wherein
the Hon'ble Apex Court in para 15 and 16, held as under:-
"15. Having heard the counsel for the parties, we are
clearly of the view that the impugned order is contrary to
law and cannot be sustained for several reasons, but
primarily for deviation from the limited jurisdiction
exercised by the High Court under Article 227 of the
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Constitution of India. The High Court exercising supervisory
jurisdiction does not act as a court of first appeal to
reappreciate, reweigh the evidence or facts upon which the
determination under challenge is based. Supervisory
jurisdiction is not to correct every error of fact or even a
legal flaw when the final finding is justified or can be
supported. The High Court is not to substitute its own
decision on facts and conclusion, for that of the inferior
court or tribunal [Celina Coelho Pereira (Ms) and Others v.
Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC
217]. The jurisdiction exercised is in the nature of
correctional1 jurisdiction to set right grave dereliction of
duty or flagrant abuse, violation of fundamental principles
of law or justice. The power under Article 227 is exercised
sparingly in appropriate cases, like when there is no
evidence at all to justify, or the finding is so perverse that
no reasonable person can possibly come to such a
conclusion that the court or tribunal has come to. It is
axiomatic that such discretionary relief must be exercised
to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227,
this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001)
8 SCC 97 has observed:-
"6. The scope and ambit of exercise of power and
jurisdiction by a High Court under Article 227 of the
Constitution of India is examined and explained in a
number of decisions of this Court. The exercise of power
under this article involves a duty on the High Court to keep
inferior courts and tribunals within the bounds of their
authority and to see that they do the duty expected or
required of them in a legal manner. The High Court is not
vested with any unlimited prerogative to correct all kinds of
hardship or wrong decisions made within the limits of the
jurisdiction of the subordinate courts or tribunals. Exercise
of this power and interfering with the orders of the courts or
tribunals is restricted to cases of serious dereliction of duty
and flagrant violation of fundamental principles of law or
justice, where if the High Court does not interfere, a grave
injustice remains uncorrected. It is also well settled that the
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High Court while acting under this article cannot exercise
its power as an appellate court or substitute its own
judgment in place of that of the subordinate court to correct
an error, which is not apparent on the face of the record.
The High Court can set aside or ignore the findings of facts
of an inferior court or tribunal, if there is no evidence at all
to justify or the finding is so perverse, that no reasonable
person can possibly come to such a conclusion, which the
court or tribunal has come to."
5. In light of the aforesaid provisions of law, let examine
the correctness of the order at first blush to see that whether
the matter requires admission or issuance of notice.
6. The wife has filed divorce proceedings against the
petitioner under Section 13 of the Hindu Marriage Act
bearing HMP No. 91 of 2025 on the grounds of cruelty and
impotency. In the said proceedings, the learned Family Court,
in view of compromise arrived at between the parties at
Exh.12, permitted limited visitation right to the petitioner.
However, the proceedings for divorce is pending. During the
pendency of the said divorce petition, an application was
moved by the petitioner seeking to send the two minor
daughters for counselling, on the ground that the daughters,
who are approximately 7 to 8 years of age, showed hesitance
and reluctance in meeting their father. It was submitted that
on 24th March, 2024, when the petitioner met the minor
daughters in the presence of the mother and her family
members, the daughters initially recognized their father and
interacted with him, but thereafter distanced themselves. The
photographs at Annexure B show the children appearing
happy, however, subsequent conduct indicates that the
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children may have been influenced against their father,
raising serious concern regarding parental alienation. The
aforesaid scenario indicates that welfare of two minor
daughters are at stake and therefore, both of them required
counseling. While pressing that for well being of two minor
daughters, love, affection and care of both the parents are
needed, learned advocate Mr. Goswamy would further submit
that welfare of children is paramount consideration in a child
custody matter or where issue of visitation right involves.
7. The learned Family Court while rejecting the
application, clearly held that it is a divorce proceedings,
whereby the wife sought divorce from the husband on the
ground of cruelty and it is not the matter of child custody.
8. The court, upon careful consideration, observed that the
two minor daughters are of a tender age of approximately 7 to
8 years and have been residing with their mother since
separation. The court took note of the settled legal position
that the best interest and welfare of the child is the
paramount consideration in all matters relating to child
custody and guardianship, as enshrined under the Guardian
and Wards Act, 1890 and the Hindu Minority and
Guardianship Act, 1956.
9. Aptly, while the purpose of a counseling order is to
reduce psychological trauma, help children process emotions,
and improve their overall well being amidst parental conflict,
the children being of such tender age are unlikely to fully
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comprehend the complexities of the ongoing matrimonial
dispute between their parents.
9.1 The petitioner apprehends that his daughters since
keeping distance, perhaps have been poisoned by their
mother and that needed child counseling. It remains just
apprehension without backed by any substantive credence.
More than one reason may exist for two daughters to keep
distance. Therefore, merely to satisfy petitioner's mind, two
daughters aged 7 to 8 years cannot be forced for counseling.
10. It is further to be noted that compelling children of such
tender age to undergo counseling without sufficient
justification would not be in their best interest and may in fact
cause further emotional harm.
11. Considering overall circumstances, the judgments relied
upon by learned advocate for the petitioner would render no
assistance to his case.
12. Before parting with the order, the observation of the
Hon'ble Apex Court in case of Rosy Jacob V/s. Jacob A.
Chakramakkal, 1973 1 SCC 840 being relevant, reads as
under:-
"14. ........The children are not mere chattels: nor are
they mere play-things for their parents. Absolute
right of parents over the destinies and the lives of
their children has, in the modern changed social
conditions, yielded to the considerations of their
welfare as human beings so that they may grow up in
a normal balanced manner to be useful members of
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the society and the guardian court in case of a
dispute between the mother and the father. is
expected to strike a just and proper balance between
the requirements of welfare of the minor children and
the rights of their respective parents over them. ...."
13. Under the circumstances, according to this Court,
present petition being bereft of merits, completely vexatious
and frivolous, intended to derail divorce proceedings, is
required to be struck down quantifying appropriate cost.
14. Resultantly, present petition fails and dismissed at
admission stage with cost of Rs.10,000/- to be deposited by
the petitioner before the concerned learned Family Court
within four weeks from today. After depositing the amount,
the learned Family Court shall disburse the amount to two
minor daughters.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
