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2019 Supreme(Guj) 557
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.J. SHASTRI, J.
Abhishek Madanlal Binaykia - Petitioner
Versus
Swati Abhishek Binaykia - Respondent
R/Special Civil Application No. 5090 of 2019
Decided On : 01-07-2019
Advocate Appeared:
For the Petitioner:Mr. Unmesh Shukla, Advocate for Mr. Aadit R. Sanjanwala.
Headnote:
Hindu Marriage Act, 1955 – Section 13(1) – Family Courts Act, 1984 – Section 7(1) –Article 227 – Constitution of India – Petition estranged matrimonial relations, petitioner is husband whereas respondent is wife and out of wedlock one child is born who is at present under custody of petitioner, pursuant to orders of court, petitioner resides in India with son, whereas respondent – wife resides in, on account of such estranged relationship, petitioner constrained to file Family Suit for seeking decree of divorce under provisions petitioner also filed another suit for retaining custody of son , before Family Court, application. Ultimately, court issued notice and refused to grant ex-parte ad-interim injunction and being aggrieved by same, petitioner to file Special Civil Application wherein by virtue of order court pleased to direct parties to maintain status-quo as regards custody of son who is undisputedly with petitioner, by passing further order on Special Civil Application came to disposed of with direction to complete hearing of interlocutory application within period of four weeks and continued interim relief –Held, Impugned order deserves to quashed and set aside with consequential direction that main Family Suit may heard and disposed of as expeditiously as possible by granting full opportunity to parties to proceedings, background of this fact is leading to one situation where petitioner must be given fair chance of agitating grievance on merit contained in Family Suit – Petition disposed of. (Para 5.4, 6, 8)
Facts of the case:
Petition estranged matrimonial relations, petitioner is husband whereas respondent is wife and out of wedlock one child is born who is at present under custody of petitioner, pursuant to orders of court, petitioner resides in India with son, whereas respondent – wife resides in, on account of such estranged relationship, petitioner constrained to file Family Suit for seeking decree of divorce under provisions petitioner also filed another suit for retaining custody of son , before Family Court, application. Ultimately, court issued notice and refused to grant ex-parte ad-interim injunction and being aggrieved by same, petitioner to file Special Civil Application wherein by virtue of order court pleased to direct parties to maintain status-quo as regards custody of son who is undisputedly with petitioner, by passing further order on Special Civil Application came to disposed of with direction to complete hearing of interlocutory application within period of four weeks and continued interim relief
Findings of the court:
Impugned order deserves to quashed and set aside with consequential direction that main Family Suit may heard and disposed of as expeditiously as possible by granting full opportunity to parties to proceedings, background of this fact is leading to one situation where petitioner must be given fair chance of agitating grievance on merit contained in Family Suit.
Result: Petition disposed of
1. The present petition under Article 227 of the Constitution of India is filed for the purpose of challenging the legality and validity of the order dated 12.02.2019 passed in Civil Misc. Application No. 106 of 2018 filed in Family Suit No. 1665 of 2015.
2. The case of the petitioner is that the parties to the petition are estranged matrimonial relations. The petitioner is the husband whereas the respondent is the wife and out of wedlock one child is born named as Vihaan Binakia who is at present under the custody of the petitioner, pursuant to the orders of the court. The petitioner resides in India with Vihaan, whereas the respondent – wife resides in California, USA. On account of such estranged relationship, the petitioner was constrained to file Family Suit No. 1665 of 2015 on 18.09.2015 for seeking decree of divorce under the provisions of Section 13(1) of the Hindu Marriage Act, 1955. The petitioner also filed another suit under Section 7(1) (g) of the Family Courts Act, 1984 being Family Suit No. 1546 of 2015, for retaining the custody of Vihaan, before the Family Court, Ahmedabad on 28.08.2015 in an Exhibit-5 application. Ultimately, the court issued notice and refused to grant ex-parte ad-interim injunction and being aggrieved by the same, the petitioner had to file Special Civil Application No. 14299 of 2015, wherein by virtue of order dated 03.09.2015, the court was pleased to direct the parties to maintain status-quo as regards the custody of Vihaan who is undisputedly with the petitioner. By passing further order on 11.09.2015, Special Civil Application came to be disposed of with a direction to complete the hearing of the interlocutory application Exhibit-5 within a period of four weeks and continued the interim relief till the Family Suit is decided and this was specifically keeping in view the welfare of the child as indicated in para 17 of the order.
2.1. It is further the case of the petitioner that in the meantime, the respondent – wife approached the County Court in Santa Clara, California, USA and obtained an ex-parte order on 16.09.2015 for temporary custody of Vihaan by suppressing all details related to the litigation which went on in Indian courts. Simultaneously, the Family Court after hearing both the parties in Family Suit No. 1546 of 2015 passed an order on 21.10.2015, by which the custody of Vihaan was handed over to the petitioner. The respondent – wife as a result of which filed Special Leave Petition No. 29339 of 2015 before the Apex Court, which came to be rejected vide order dated 26.10.2015. Later on the order dated 21.10.2015 passed by the Family Court in Family Suit No. 1546 of 2015 was further challenged by the respondent – wife by filing Special Civil Application No. 20027 of 2015, which came to be disposed of on 08.03.2016 and the custody of Vihaan was handed over to the petitioner. Against the said order, the respondent – wife preferred Special Leave Petition No. 10045 of 2016 before the Apex Court which came to be disposed of on 22.08.2016. Subsequent to this, and during the passage of time, Family Suit No. 1546 of 2016 came to be decreed in favour of the petitioner by judgment and order dated 10.03.2017 and against that the respondent – wife filed First Appeal before this Court being First Appeal No. 2037 of 2017 and the same after hearing at length is reserved for judgment, as on filing of the present petition. The petitioner has asserted that in such a situation, one for engaging himself in the litigation parallel to the present one which was related to the custody of child and another with respect to divorce, as a result of this, the petitioner was unable to devote undivided attention to the divorce proceedings i.e. Family Suit No. 1665 of 2015 and since the custody issue was highly contested time and again right upto the Apex Court, the time has been consumed with full concentration on that issue and by that time, the petitioner was not informed by the AOR about the date o
