Appellate jurisdiction not to interfere with trial court's findings unless erroneous or evidence ignored

ORDER :

Ashutosh Shastri, J.

1. By way of this appeal under Section 19 of the Family Courts Act, a challenge is made to a decision dated 6.12.2021 passed by learned Family Judge, Ahmedabad whereby Civil Misc. Application No.104 of 2017 which was filed for seeking restoration of the main proceedings came to be dismissed.

2. It is the case of the appellant that main application under Section 25 of the Guardians and Wards Act was filed before the learned Family Court No.3 at Ahmedabad seeking custody of the minor child from the opponent wife. On 20.9.2019, appellant had attended the court proceedings till 5.00 p.m. and according to him, learned Presiding Officer was not on Dias and on account of urgent work at Palanpur and to see his mother’s health, appellant returned to Palanpur under hope that matter will be adjourned. But there after, when after about two days, appellant inquired about main application, it was noticed that said application came to be dismissed and as such for seeking restoration of main application, appellant has filed Civil Misc. Application No.174 of 2019. The learned Family Judge without any cogent reasons rejected the aforesaid restoration application vide order dated 6.12.2021. It is the submission of appellant that initially, a writ petition was filed being Special Civil Application No.7359 of 2022, but in view of the fact that statutory appeal would lie against said order passed in Civil Misc. Application No.104 of 2017, petition having been rejected on 13.7.2022, appellant has filed present First Appeal under Section 19 of the Family Courts Act.

3. The case of the appellant is that he has to pay arrears of maintenance amount in respect of order dated 3.5.2019 passed in proceedings of Domestic Violence Act under Cr.M.A. No.1265 of 2015. Appellant was regularly paying an amount of Rs.8,000/- per month as an interim maintenance and according to him, amount of arrears of Rs.3,14,000/- has nothing to do with present matter as it is in respect of arrears of Domestic Violence proceedings. Opponent wife is pursuing remedy available as she has given an application for recovery of Rs.3,14,000/- which was pending before the concerned Court. The Court presumed that there is default in payment of maintenance and simply because appellant has not paid an amount of Rs.3,14,000/-, same cannot be a ground for dismissal of main proceedings, especially when appellant has to leave Court on account of genuine circumstance. In fact, according to appellant, some amounts have already been paid by way of maintenance. It is not that appellant has not paid anything and as such on account of non-payment of maintenance amount, proceedings cannot be dismissed in the manner in which learned Family Judge disposed of. In fact, parental alienation of children is not desirable. In fact, appellant has not seen two children for a pretty long period and as such discretion which has been exercised by Court below is erroneous and as such order dated 6.12.2021 be quashed and set aside.

4. Learned advocate Mr. Jucky Lucky Chan for the appellant has reiterated the contents which are stated in the appeal and has submitted that restoration ought to have been leniently considered, particularly when appellant had to leave the Court to look after ill-health of his mother and as such reasons assigned by learned Judge are not germane to law and as such appeal be allowed.

5. As against this, learned advocate Mr. Anuj K. Trivedi on advance copy has appeared on behalf of opponent and has submitted that there is huge arrears amounting to Rs.50,22,000/- and appellant is not taking care of the family. If appellant is really serious about minor children, then at least, for their welfare, regular amount must have been paid. As and when courts passed orders, at that juncture appellant is making payment under compulsion, otherwise his intent is not to pay amount regularly. It has been submitted that manner in which proceedings have been handled by appellant reflects