Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Online)(Guj) 13554

GUJARAT HIGH COURT
UMESH A. TRIVEDI, J
NILKANTH VIKRAM TRIVEDI – Appellant
Versus
DEVSHRI HEMANT KUMAR SHASTRI W/O NILKANTH VIKRAM TRIVEDI – Respondent
R/SPECIAL CIVIL APPLICATION NO. 8548 of 2022 | R/SPECIAL CIVIL APPLICATION NO. 5611 of 2022 | CIVIL APPLICATION (FOR MODIFICATION OF ORDER) NO. 1 of 2022

Advocates:
For the Appellants/Petitioners: MS MEGHA JANI, MR HRIDAY BUCH
For the Respondents: MR MUKESH PATEL, MR NISHITH M PANDIT

Custody of a minor child under five years is ordinarily with the mother unless substantial evidence proves otherwise; the welfare principle prevails over allegations of misconduct without credible support.

Headnote:(A) Hindu Minority and Guardianship Act, 1956 - Sections 6 and 13 - Guardians and Wards Act, 1890 - Custody of a minor child - Application for custody by father denied; mother entitled to custody as child aged below five years; husband did not prove abandonment or substantive misconduct by wife - Petitions disposed of allowing custody to mother upheld by Court. (Paras 5.1, 8.6-8.17)

(B) Child Custody - Principle of welfare - Welfare of the child of tender age must be prioritized; mother demonstrated ability to nurture despite allegations of misconduct which were not substantiated with contemporary evidence. (Paras 8.1, 8.17)

(C) Evidence - Admissibility of documents - Husband's allegations based on non-substantial and improperly obtained materials; Court criticized the husband for seeking to gain control of custody through harmful tactics. (Paras 8.3, 8.17)

Facts of the case:
The case concerned custody disputes over a minor daughter, Dhanashri. After separation, the husband filed for custody asserting the wife's alleged misconduct and mental health concerns. The wife countered that the husband used deceitful means to gain custody and claimed that his accusations were unfounded and orchestrated. (Paras 2.0-8.0)

Findings of Court:
The husband failed to substantiate claims of the wife's alleged mental instability and misconduct with credible evidence; welfare of the minor daughter requires her return to the mother, denying the husband's motions for continued custody. (Paras 8.1-8.17)

Issues: The main issue was establishing who had rightful custody of the child, with particular focus on the mother's mental health and the husband's conduct in seeking her custody. (Paras 4.1, 8.0)

Ratio Decidendi: The court emphasized that specific provisions under the law dictate custody decisions primarily focus on child welfare, indicating that allegations by the father needed to be proven and were found lacking in this case. (Paras 5.1, 8.1-8.17)

Result: The impugned order granting custody to the husband is quashed; the custody of Dhanashri is granted to the wife. (Paras 8.17)

Judgement Key Points

Key Points: - Custody of minor child under five years is ordinarily with the mother unless substantial evidence proves otherwise, prioritizing child's welfare over unsubstantiated allegations (!) [p_5.1][p_8.17] - Husband failed to substantiate claims of wife's mental instability and misconduct with credible evidence; custody granted to mother [p_8.1][p_8.17] - Husband obtained child's custody through deceitful means before filing application and ex-parte injunction, which was criticized by the court [p_5.4][p_8.2][p_8.3] - Family Court's order granting custody to husband quashed; husband directed to return child to wife forthwith, with police assistance if needed [p_8.17] (!) - Evidence like medical reports and videos produced by husband had discrepancies, lacked proper certification, and were not contemporaneously relevant [p_5.15][p_8.1][p_8.3] - Wife's detailed reply denying allegations and explaining documents was not adequately considered by Family Court [p_8.53][p_8.55] - Application for declaration and injunction to retain custody held maintainable only with shown cause of action, not imaginary fears [p_8.3][p_8.45] - Husband knew wife's history since 2010, married her despite alleged issues, with no post-marriage complaints until custody dispute [p_8.1][p_8.41][p_8.46] - Visitation rights to wife previously granted but not fully observed; stay of custody restoration order rejected [p_8.10] (!)

What is the ordinary custody arrangement for a minor child under five years?

ORAL JUDGMENT

[1.0] Both these petitions arise out of the common judgment and order passed by the Judge, Family Court No.5, Ahmedabad dated 16.02.2022 below Exhs.5 and 22 in Civil Miscellaneous Application No.83 of 2021, and therefore, they are proposed to be disposed of by this common order.

[2.0] Special Civil Application No.5611 of 2022 is filed by Devshri, daughter of Hemantkumar Shastri, wife of Nilkanth Trivedi, who preferred application, Exh.22 in the aforesaid Civil Miscellaneous Application filed before the Family Court raising preliminary issue to dismiss the suit as also praying restoring custody of daughter ‘Dhanashri’ to her. Since her application, Exh.22, is rejected by the impugned common judgment and order, she has preferred the aforesaid Special Civil Application.

[2.1] Special Civil Application No.8548 of 2022 is filed by Nilkanth Vikram Trivedi, who has preferred the aforesaid Civil Miscellaneous Application before the Family Court, seeking declaration to the effect that he being the father of the minor daughter, ‘Dhanashri’, he is entitled to retain the custody of her and no other person including the respondent therein has any right to interfere with the said custody as also further declaration is sought for that no one should have the visitation rights and he seeks permanent injunction in respect thereof against the respondent therein, who is the wife of the petitioner of the said Special Civil Application. Alongwith the aforesaid Civil Miscellaneous Application, an application, Exh.5 came to be filed by the petitioner claiming temporary injunction restraining the opponent therein or any other person either to take away the custody or interfere with the custody of the minor child, which came to be allowed by the impugned judgment and order injuncting opponent wife, agent or any other person to take away or interfere with the custody of child. However, visitation right to meet minor child ‘Dhanshri’ on every Saturday of each calender month from 10:00 a.m. to 5:00 p.m. was given. Opponent wife was directed to pick up the minor at 10:00 a.m. from the residence of the applicant and drop her at 5:00 p.m..

[3.0] For the sake of brevity and convenience in this order, the parties would be referred to hereinafter as husband and wife.

[4.0] It is the case of the husband by way of Civil Miscellaneous Application that he came in contact with the wife through ‘shaadi.com’ initially in the year 2010 and after having preliminary contact they thought of getting married but because of differences in their thoughts at the relevant time the said idea was dropped. However, as narrated in the application filed before the Family Court, they continued to talk, may be occasionally, over the mobile phone. As asserted further, the wife insisted for marriage and since the husband was refusing to marry her, she wanted to marry someone else. The husband had permitted her to marry the person of her choice, and therefore ultimately the wife married a person of the choice of her family on 20.05.2013. However, within a short span, she returned back to her parental home and in the year 2014 she took divorce from her earlier husband. It is asserted in the application that an application for divorce was filed and judgment was pronounced thereon, which is produced alongwith the Civil Miscellaneous Application with a separate list. It is further asserted in the application that the said marriage was performed only with an intention showing him off.

[4.1] Thereafter it is coming out from the application that the wife by executing writing, on a stamp paper as also simple paper, threatened not only her parents but her brother also by defamatory contents therein. It is further asserted that on 18.11.2016 and 19.11.2016, the wife filed an application against her father for the purpose of maintenance and alleged domestic violence against her parents and brother and filed criminal case also. The said case is claimed to be ended in compromise on 11.01.2017

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