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2025 Supreme(Online)(Guj) 7902
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 2426 of 2023 With R/FIRST APPEAL NO. 2451 of 2023 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE and HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA ==========================================================
Approved for Reporting Yes No ==========================================================
SMITI W/O. AAKASH SHAH D/O. ATULBHAI BABUBHAI SHAH Versus AAKASH KIRANKUMAR SHAH ==========================================================
Appearance:
AADITYA D BHATT(8580) for the Appellant(s) No. 1 CHANDNI S JOSHI(9490) for the Appellant(s) No. 1 KSHITIJ M AMIN(7572) for the Defendant(s) No. 1 MR. RAHUL R DHOLAKIA(6765) for the Defendant(s) No. 1 ==========================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE and HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA Date : 08/08/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 2426 of 2023 With R/FIRST APPEAL NO. 2451 of 2023 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE and HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA ==========================================================
Approved for Reporting Yes No ==========================================================
SMITI W/O. AAKASH SHAH D/O. ATULBHAI BABUBHAI SHAH Versus AAKASH KIRANKUMAR SHAH ==========================================================
Appearance:
AADITYA D BHATT(8580) for the Appellant(s) No. 1 CHANDNI S JOSHI(9490) for the Appellant(s) No. 1 KSHITIJ M AMIN(7572) for the Defendant(s) No. 1 MR. RAHUL R DHOLAKIA(6765) for the Defendant(s) No. 1 ==========================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE and HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA Date : 08/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)
INDEX
Section
Page
I.
INTRODUCTION
2-3
II.
FACTS
3-6
III.
SUBMISSIONS ON BEHALF OF THE APPELLANT- WIFE
7-11
IV.
SUBMISSIONS ON BEHALF OF THE RESPONDENT-HUSBAND
11-13
I. INTRODUCTION
Section
Page
V.
QUESTION INVOLVED IN THESE APPEALS
13-14
VI.
DISCUSSION AND ANALYSIS
14
A. A BRIEF OVERVIEW OF THE CONCEPT OF A HINDU MARRIAGE AND A DIVORCE BETWEEN HINDUS
14-28
B. APPLYING THE PROPOSITION OF LAWS TO THE FACTS OF THIS CASE
28-41
C. RE: EFFECT OF S. 13 OF THE CPC
41-44
D. RE: JURISDICTION OF THE FAMILY COURTS TO ENTERTAIN A PETITION QUESTIONING THE DECREE OF DIVORCE GRANTED BY A FOREIGN COURT
44-47
VII.
CONCLUSION AND FINAL ORDER
48
1.These two appeals are filed by the wife.
2.First appeal No. 2451/2023 is filed challenging the order passed under Order 7 Rule 11 of Civil Procedure Code, 1908 (For short ‘CPC’) whereby, the plaint filed by the wife, in which she has sought the declaration that decree dated 07.06.2017 passed for dissolution of the marriage by the Federal Circuit Court of Australia at Sydney was null and void and for consequential injunction has been accepted and the plaint has been rejected.
3.First Appeal No. 2426/2025 is filed challenging the order passed under Order 7 Rule 11 of CPC under which, the Family Suit No. 1738/2016 filed by the wife seeking restitution of conjugal rights where the plaint filed in family suit No. 1738/2016 seeking restitution of conjugal rights has been accepted and the plaint has been rejected.
II. FACTS OF THE CASE:
4.The facts, as could be ascertained from the pleadings and also the written submissions, which are not in dispute, which has led to the filing of these appeals are as follows:
4.1. On 12.07.2008, the marriage took place between the husband and wife at Ahmedabad as per Hindu Rites and Rituals and on 23.07.2008. This marriage was also registered under the provisions of Gujarat Registration of Marriages Act.
4.2. On 28.08.2008, i.e., one and a half months after the marriage, the husband returned to Australia, where he was a permanent resident.
4.3. On 25.10.2008, i.e., three months after the marriage, the wife also moved Australia and joined her husband.
4.4. On 26.05.2011, while the couple stayed in Australia, the husband acquired Australian citizenship.
4.5. On 06.04.2013, the husband and wife had their first child namely Aagam.
4.6. On 30.10.2014, it appears differences cropped up between them (according to the dates and events submitted by the husband) and, he returned to India.
4.7. On 03.03.2015, the husband secured an Overseas Citizenship of India Card as per the provisions under the Citizenship Act.
4.8. On 25.8.2015, the wife who had stayed back in Australia in order to acquire Australian Citizenship, was granted Australian citizenship.
4.9. On 10.09.2015, the wife along with son returned to India.
4.10.On 09.03.2016, the husband initiated proceedings for divorce and the care of child by approaching the Federal Circuit Court of Australia at Sydney being file No. SYC1366/2016.
4.11.On 26.08.2016, the noti
