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2019 Supreme(Guj) 306

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.J. SHASTRI, J.
DARSHAN NIRANJANKUMAR BRAHAMBHATT - Appellant
Versus
JYOTI DARSHANKUMAR BRAHAMBHATT - Respondent
R/CIVIL REVISION APPLICATION NO.130 of 2019
Decided On : 15-04-2019

Advocates:
Advocate Appeared:
For the Appellant : Mr Vasants Shah
For the Respondent: Mr Hriday Buch

Headnote:

Hindu Marriage Act – Section 13(B) – Petitioner had filed a suit before the Family Court against the present respondent for seeking divorce under Section 13(A) of the Hindu Marriage Act, essentially on the ground of desertion, which was numbered as Family Suit - is the case of the petitioner that in between during the pendency of the proceedings, some development has taken place. As a result of this, the matter was sent to the councilor and the both the parties were agreed for settlement and also agreed to seek divorce by mutual consent. Accordingly, the parties have submitted mutual consent divorce petition under Section 13(B) of the Hindu Marriage Act and thereafter, the present petition is to be withdrawn – Held, There is substance in the say and submission of defendant / mother. The defendant is the real mother of minor child. The minor child is in the custody of defendant and minor child is very well looked after and maintained by defendant. The plaintiff / father resides at USA and not cooperating the defendant for the renewal of passport of minor child, which is not fair and just – Thus, considering totality of the facts and circumstances, this application deserves to be granted and permission is required to be granted to defendant to follow all necessary procedure as guardian of minor child to renew the passport of minor child – Situation prevailing on record, in the fight between the parents, if the child is not to be taken care of at least for the purpose of renewal of passport, a serious consequence would fall back upon the career. Hence, the question of welfare of a daughter has arisen, it appears to this Court that the learned Judge of the Family Court has rightly undertaken the exercise of considering the request of the respondent – Revision dismissed

ORDER :

1. The present Civil Revision Application is filed for the purpose of seeking following reliefs :

(A) Your Lordship be pleased to allow this petition and further be pleased to quash and set aside the impugned order passed by the Principal Judge, Family Court, Ahmedabad dated 28.2.2019 vide Exh.31 in Family Suit No.1837 of 2016.

(B) Further be pleased to stay the impugned order passed on 28.2.2019 by the Principal Judge, Family Court, Ahmedabad vide Exh.31 in Family Suit No.1837 of 2016, during the pendency and final hearing of the present revision application.

(C) Further be pleased to grant any other and further relief/s which deems just fit and proper in the interest of justice.”

2. It is the case of the petitioner that the petitioner had filed a suit before the Family Court, Ahmedabad against the present respondent for seeking divorce under Section 13(A) of the Hindu Marriage Act, essentially on the ground of desertion, which was numbered as Family Suit No.1837 of 2016. It is the case of the petitioner that in between during the pendency of the proceedings, some development has taken place. As a result of this, the matter was sent to the councilor and the both the parties were agreed for settlement and also agreed to seek divorce by mutual consent. Accordingly, the parties have submitted mutual consent divorce petition under Section 13(B) of the Hindu Marriage Act and thereafter, the present petition is to be withdrawn. On account of this litigation, both the parties have also to inter-alia settle the terms regarding their daughter named as ‘Diya’, who is aged about 14 years. But, somehow the matter could not be resolved in the meantime. It is further the case of the petitioner that during the pendency of this litigation, an application Exh.31 came to be submitted on 17.10.2018, seeking to grant special permission to the respondent – defendant for renewal of passport of a daughter named as ‘Diya’ along with identity card etc. The present petitioner has submitted the reply to the said application at Exh.36. But as per the say of the petitioner, from 28.11.2018 till 5.2.2019, learned advocate appearing for the defendant did not take the task for hearing the said application Exh.31 and from time to time, same was adjourned. Thereafter, on 26.2.2019, another advocate, Mr.Naik, submitted an application to take up the matter on board and the matter was kept then on 28.2.2019 and the matter was transferred from 4th Court to 1st Court, without intimating or without issuing the notice to the party and without there being any transfer application. But, somehow, after hearing, the learned Principal Judge, 1st Court heard the application Exh.31 and passed an order on 28.2.2019 which is made the subject matter of present revision petition.

3. Mr.Vasant S. Shah, learned advocate appearing for the petitioner, has vehemently submitted that the order in question is not legal and valid and the Family Court has passed an order as if it is the proceedings under the Guardian and Wards Act. Despite the fact that particulars regarding cause by length is not detailed out in an application, the Family Court allowed the said application. It has further been contended that proper reasons are also not assigned by the learned Judge, who passed an order and accordingly, the impugned order deserves to be corrected. A further contention is raised that after the change of advocate, an application was moved and then, the order came to be passed. That circumstance also is eloquent enough to examine from this angle, as well. Hence, the learned advocate has requested the Court to set aside the impugned order which has been passed by the Family Court. No other submissions have been made.

4. To meet with this stand, Mr.Hriday Buch, learned advocate for the respondent, has submitted that in between the fight, the daughter is suffering and her career has been at stake. If the relief which has been sought is not granted, there may be a serious prejudice to the car









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