2020 Supreme(Guj) 512

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Ashutosh J. Shastri, J.
Kshitij Jawaharlal Shah – Petitioner
Versus
Zara Shah W/o Kshitij Shah D/o Dilipkumar Shah – Respondent
R/Special Civil Application No. 5065 of 2019 with Civil Application (For Fixing Date of Hearing) No. 1 of 2020
Decided On : 12-06-2020

Point of Law:
While exercising the said jurisdiction, the High Court had a limited role to play. It is not the function of the High court while exercising its supervisory jurisdiction to enter into the disputed question of fact. It has not been found by the High Court that the findings arrived at by the learned Additional District Judge were perverse and/ or in arriving the said findings, the learned Additional District Judge failed and/ or neglected to take into consideration the relevant factors or based its decision on irrelevant factors not germane therefor. It could intervene, if there existed an error apparent on the face of the record or, if any other well known principle of judicial review was found to be applicable.

Headnote:

Constitution of India, 1950 – Article 227 – Custody of the children – Jurisdiction – Seeking to issue quash and set aside the order passed by the learned Judge, Family Court No.3, in Civil Misc. Application and modify the order to the extent that, Respondent be directed to take admission of the child in neighborhood school preferably in morning sessin – Seeking multiple reliefs – party-in-person has vehemently contended that while passing the impugned order below Exh.5, the trial court has not taken into consideration the welfare of the child. The multiple relief’s which have been prayed in the application were centering around the welfare of the child only and as held by series of decisions, that is the only point which is to be taken care of by the Court while deciding the application. The party-in-person has submitted that the respondent being a working woman, may not be able to take care of the child and as such, some provisions to keep the interest of the child, deserve to be kept in mind. It has been contended that substantial ground on which the application is not entertained is that on previous occasion, a compromise took place in which the party-in-person has signed the same and the matter came to be disposed of. It has been contended that on change of circumstance and the situation, it is always possible for the party-in-person to bring an application. Hence, the order in question is not just and proper – Held, A basically a petition under Article 227 of the Constitution of India where the scope which has been propounded is very limited and unless and until there is any perversity or any material irregularity in exercise of such power i.e. extraordinary in nature, no substitution of view is permissible and there is no special circumstance carved out by party-in-person to deviate from this principle which is time and again reiterated by the Apex Court. As a result of this, the view taken by the trial court does not call for any interference – In view of the material which has been placed and keeping in view of the recent pronouncement referred to above, the Court is not inclined to disturb the order impugned – impugned order are at interlocutory stage and the main proceedings i.e. Civil Misc. Application No.43 of 2018 be disposed of and decided without being influenced by the observations made in the impugned order – Directions issued – Petition stands disposed of (Paras 7, 8, 9 and 10)

Facts of the case:

Petitioner got married to respondent herein as per Hindu rites and ceremony on 21.1.2011 and out of the said wedlock, the respondent herein gave birth to a baby-girl on 3.9.2012, named as Jhankruti. By passage of time, some disturbance took place in the married life which resulted into filing of proceedings. According to the petitioner, he is working as Practicing Cost Accountant, having the responsibility of widowed mother, whereas the respondent herein is in the full time job serving in Well Worth Share and Stock Broking Ltd. According to the petitioner, the respondent being a working woman is not in a position to take care of the minor daughter. As a result of this, since both were separated, the petitioner filed an application on 12.7.2016 being Civil Misc. Application No.67 of 2016 in which the compromise took place between the parties and the settlement terms were deducted in writing and in terms of the compromise in view of Order 23 Rule 3 of the Code of Civil Procedure, the aforesaid Civil Misc. Application No.67 of 2016 came to be disposed of. For quite some time, said compromise stated to have been observed. But then, the petitioner was required to file Civil Misc. Application No.43 of 2018 for seeking interim custody under Section 26 of the Hindu Marriage Act and under Section 12(1) of the Guardians and Wards Act. In the said proceedings, an interim relief application also came to be given by the petitioner at Exh.5 which came up for consideration before the learned Judge, Family Court No.3, Ahmedabad, who, by an order dated 2.2.2019, was pleased to reject the application with cost of Rs.5000/and also directed the petitioner to pay Rs.3000/- to the opponent. It is this order which is made the subject matter of present under Article 227 of the Constitution of India.

Findings of the court:

A basically a petition under Article 227 of the Constitution of India where the scope which has been propounded is very limited and unless and until there is any perversity or any material irregularity in exercise of such power i.e. extraordinary in nature, no substitution of view is permissible and there is no special circumstance carved out by party-in-person to deviate from this principle which is time and again reiterated by the Apex Court. As a result of this, the view taken by the trial court does not call for any interference – In view of the material which has been placed and keeping in view of the recent pronouncement referred to above, the Court is not inclined to disturb the order impugned – impugned order are at interlocutory stage and the main proceedings i.e. Civil Misc. Application No.43 of 2018 be disposed of and decided without being influenced by the observations made in the impugned order.

Result: Petition disposed of