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2023 Supreme(Online)(Bom) 18412
BOMBAY HIGH COURT
SHARMILA U. DESHMUKH, J
SHAMPRASAD VISHWANTH DEV – Appellant
Versus
MANJIRI SHARDUL DEV – Respondent
WRIT PETITION NO.889 OF 2023
For the Appellants/Petitioners: Rajendrraa Deshmukh, Sanket Kulkarni
For the Respondents: L. V. Sangit, M. L. Sangit
The court emphasized that procedural fairness must not undermine the paramount consideration of a child's welfare in custody disputes.
Headnote:(A) Guardians and Wards Act, 1890 - Code of Civil Procedure, 1908 - Orders regarding written statements and pleadings - Application for custody of minor - Striking off written statement’s portions by Trial Court - The petitioner adopted the written statement of the father, whose defence was struck off, thus affecting petitioner’s standing. The court emphasized the paramount need for child welfare and determined procedural adherence must not override this priority. (Paras 2, 8, 12, 13)
(B) Procedural Fairness - Striking off defence vs pleadings - The difference was highlighted, stating that an affidavit of evidence must be examined at final adjudication; deletion of evidence parts at this stage is not justified. (Paras 9, 10)
Facts of the case:
The petitioner is the grandfather seeking custody, having adopted the written statement of his son, where a related decision was previously struck off.
Findings of Court:
The Trial Court improperly struck portions of the affidavit, impacting the adjudicative process.
Issues: The main questions were about procedural fairness in striking off written statements and the welfare of the minor child.
Ratio Decidendi: The court ruled that striking portions of evidence before adjudication deprives fair consideration under valid legal procedures.
Result: Petition succeeds;
| Table of Content |
|---|
| 1. child custody application and legal representation matters. (Para 1 , 2) |
| 2. implications of affidavit portions concerning pleadings and defenses. (Para 3 , 4 , 7) |
| 3. arguments concerning custody and defendant rights. (Para 5 , 6) |
| 4. procedural integrity and welfare considerations in custody issues. (Para 8 , 9 , 10 , 12) |
| 5. final ruling on the impugned order. (Para 13) |
FINAL ORDER:-
1. By impugned order dated 13.01.2023 the District Judge-2, Kopargaon allowed the application seeking striking down certain portion of the affidavit in lieu of examination-in- chief filed by the petitioner in Civil Miscellaneous Application No.3/2020.
2. The facts of the case are as under:
Respondent no.1 filed Miscellaneous Civil Application No.3/2020 under the provisions of the Guardians and Wards Act, 1890 in the Court of the District Judge, Kopargaon for the custody of her son Reyansh and for declaration that respondent no.1 is the guardian of the child and respondent no.3 i.e. father is incompe- tent to take care of the child. In the said proceeding alongwith the father, the grand-parents and the paternal aunt of the child Reyansh also came to be impleaded as party-respondents. The pe- titioner filed his written statement dated 28.10.2021, which was divided into four parts dealing with the legal and factual submis- sions. Part IV of the written statement dated 28.10.2021 adopted the written statement filed by respondent no.3 i.e. the father of the child and Part IV is reproduced hereinafter:
PART IV
14) Hereinafter and to the extent of pleadings of the appli- cant in her application, to avoid repetition and for the sake of brevity, this opponent adopts the written statement filed by respondent 1 at Exhibit 162 dated 05/10/2021. This respon- dent 3 further craves leave to add, amend or alter the written statement as and when necessary, and without prejudice to his independent right to take part in proceeding including separate cross-examination.
15) For all the fact and law referred hereinabove, the appli-cation of the applicant may kindly be dismissed with costs.
3. Affidavit in lieu of examination-in-chief under the provisions of Order XVIII Rule 4 of Code of Civil Procedure was filed by the petitioner on 10.01.2023 running into 83 pages. An application was filed by the respondents seeking striking down certain portions of the affidavit of evidence on the ground that the affidavit in lieu of examination-in-chief deposes the entire written statement of respondent no.3-husband, whose defence has been struck off and as there was no pleading of the peti- tioner in respect of paragraph nos.1 to 47 and 60 to 83 of the af- fidavit of evidence in his written statement, the same is not ad- missible in evidence. The Trial Court on consideration of the written statement of the petitioner and after consideration of the provisions of the Code of Civil Procedure laid down in Order VI and Order VIII pertaining to the pleadings and the written statement concluded that the written statement of the peti- tioner adopted the written statement of respondent no.3-hus- band, whose defence has been struck off, does not meet the re- quirements of the Order VI and Order VIII of the Code of Civil Procedure and directed striking down of certain portions of the affidavit in lieu of examination-in-chief being paragraph nos.1 to 47 and 60 to 83.
4. Heard Mr. Deshmukh, learned senior counsel for the petitioner and Mr. Sangit, learned counsel for respondent no.1.
5. Mr. Deshmukh submits that the petitioner adopted the written statement of respondent no.3-husband and Part IV of the written statement makes it clear that it was only to avoid the repetition and for the sake of brevity the entire written statement of respondent no.3-husband was not reproduced by way of the written statement of the petitioner and pleadings were adopted in Part IV of the written statement. He would further submit that there is a difference between the striking off defence and striking off pl
