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2014 Supreme(Guj) 723

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ABHILASHA KUMARI, J.

YAMA W/O ANKIT PATEL D/O KIRITBHAI CHINUBHAI PATEL - Petitioner(s)
Versus
ANKIT MANUBHAI PATEL - Respondent(s)
SPECIAL CIVIL APPLICATION NO. 6506 of 2014
Decided on: 1/08/2014

Advocates:
Advocate Appeared
MS TRUSHA K PATEL, ADVOCATE for the Petitioner(s) No. 1
MR DIPAK PATEL FOR MR JC VYAS, ADVOCATE for the Respondent(s) No. 1

Headnote:

Protection of Women From Domestic Violence Act, 2005 Sections 2(s), 17 and 17(2) Constitution of India, 1950 – Articles 226 and 227 – Family Courts Act, 1984 Section 7(c) – Challenge in this petition, preferred under Articles 226 and 227 of the Constitution of India, is to the order, passed by Judge, Family Court preferred by respondent-husband in Family Suit, whereby the ex-parte order of status quo granted in favour of the respondent, has been confirmed, with certain conditions – Held, Court finds that the tone and tenor of the impugned order is, prima-facie, not in consonance with the aims, objects and purpose for which the Family Courts Act has been enacted – The nature of the power exercised by the Family Court is also a question that requires consideration, at the final stage –Trial Court has made a passing reference to the SMS produced by the petitioner, that have allegedly been sent by the respondent and has dismissed them by observing that they show that an undesirable atmosphere existed between the petitioner and the respondent and their relations were not good –Impugned order in context of SMS that apprehension expressed by respondent suggests that quarrel is going on in family and there is no possibility of parties leading peaceful life under same roof – Family Court has failed to notice are the threatening, abusive and filthy contents of the SMS sent by the respondent to the petitioner – Petition Allowed

CAV JUDGMENT

1. Rule. Mr.Dipak Patel, learned advocate, waives service of notice of Rule on behalf of the respondent. On the facts and in the circumstances of the case, and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally.

2. The challenge in this petition, preferred under Articles 226 and 227 of the Constitution of India, is to the order dated 10.04.2014, passed by the learned Judge, Family Court No.2, Ahmedabad (“the Family Court” for short), below the application at Exh.5, preferred by the respondent-husband in Family Suit No.1555 of 2013, whereby the ex-parte order of status- quo granted in favour of the respondent on 15.11.2013, has been confirmed, with certain conditions.

3. Briefly stated, the relevant facts of the case are that the petitioner herein is the legally-wedded wife of the respondent. Their marriage took place on 30.04.2006 and out of the wedlock, a daughter, named, Henisha was born on 15.07.2007. Thereafter, on 15.11.2010, the petitioner gave birth to another daughter, named, Shanaya. According to the petitioner, after the birth of the second daughter, the respondent and his family members, who were expecting a son, started torturing her by making false and baseless allegations about her character. It is the case of the petitioner that the respondent, encouraged by his family members, was determined to divorce the petitioner because of the birth of a second daughter. The petitioner was pressurized and threatened to such an extent that she was forced to write a letter on 17.02.2012, upon the instructions of the respondent, admitting that she had an illicit relationship with one Chirag Patel. As per the case of the petitioner, because of the threat of divorce, she wrote the said letter as compelled by the respondent. According to the petitioner, she had no relationship of an illicit nature with the said Chirag Patel who is her brother- in-law, being married to a cousin of the petitioner. It is the case of the petitioner that her parents were also made to sign upon the letter under threat of divorce. Ultimately, on 27.02.2013, the petitioner was driven out of the matrimonial house with both her daughters. She was not permitted to take even her own clothes and belongings, or those of daughters, and had to leave the house in the clothes she was wearing. The petitioner had no other option but to go and reside at her paternal house. All the while, the petitioner expected that with the passage of time, the respondent and her in-laws would accept the factum of the birth of the second daughter. However, no positive or constructive action was taken from the side of the respondent. It is further the case of the petitioner that the harassment by the respondent did not stop even after she was made to leave the matrimonial house. Time and again, the respondent used to send the petitioner messages on the mobile phone in abusive language, threatening that he would ensure that their marriage results in a divorce. In those messages, the respondent has not only abused the petitioner but also her relatives, including her father and uncle. The respondent is repeatedly pressurizing the petitioner to give a divorce. However, the petitioner is interested in a reunion with the respondent and in continuing her marriage, in the interest of her two minor daughters. She, therefore, continued to request the respondent not to insist for a divorce. On 15.11.2013, the respondent filed Family Suit No.1555 of 2013, seeking a declaration to the effect that the petitioner is not entitled to enter the matrimonial house, being, 19, Heritage Residency, Thaltej, Ahmedabad. In addition to the said declaration, the respondent also sought a permanent injunction against the petitioner, along with other ancillary reliefs. Along with the suit, the respondent filed an application at Exh.5, for the grant of a temporary injunction, restraining the petitioner from entering into the matrimonial hou



























































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