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2017 DIGILAW 161 (GUJ)

Bhavini Rajnikant Lad v. Manish Maheshbhai Patel

2017-01-20

RAJESH H.SHUKLA

body2017
ORDER : RAJESH H. SHUKLA, J. Admit. 2. The substantial questions of law which are posed are as under: (I) Whether in the facts and circumstances of the case, the trial Court has erred in holding that the appellant is not entitled to the relief of mere declaration as claimed without praying for the consequential relief in the suit on account of the embargo raised in the proviso under Section 34 of the Specific Relief Act? (II) Whether in the facts and circumstances of the case, the trial Court has committed an error in concluding that if the permanent injunction as prayed for is granted to restrain the respondent from interfering in the education of their minor son Krish, then it would amount to exercising the powers under the Guardians and Wards Act and grant of such injunction would curtail and would have an adverse effects on the rights of the respondent as the father of the minor son despite the fact that the respondent had before both the courts accorded his consent to passing of the order and grant of relief of custody as well as the declaration sought that the minor Krish was residing with the appellant mother? (III) Whether the in the facts and circumstances of the case, the Trial Court as well as the lower Appellate Court have erred in not declaring that the minor Krish was residing with the appellant despite both the Courts having specifically concluded that the minor Krish was residing with the appellant in Ambada Village situated in District-Navsari? (IV) Whether in the facts and circumstances of the case, the Courts below are justified in concluding that the Regular Civil Suit No. 8 of 2016 filed by the appellant was for getting relief under Section 34 of the Specific Relief Act and therefore, without seeking any further or consequential relief of being declared as the legal guardian on account of being the mother by blood, relief to merely declare that the minor Krish was residing with the appellant cannot be granted despite the fact that the respondent having expressly by filing affidavits consented to the grant of such relief/s taking into consideration the future of the minor Krish? (V) Whether in the facts and circumstances of the case, the Courts below have erred in concluding that the civil court has no jurisdiction to grant relief/s prayed for by the appellant as they were in the nature of relief which could be granted only by the district court under the Guardians and Wards Act although a simple declaration to declare that the minor Krish was residing with the appellant in Village-Ambada situated in Navsari District was prayed for the appellant? (VI) Whether in the facts and circumstances of the case, the lower appellant Court has erred in not treating the Regular Civil Appeal No. 31 of 2016 filed by the appellant to the proceedings under the Guardians and Wards Act and grant the relief of custody of minor Krish and further issue a permanent injunction restraining the respondent from interfering with the education of the minor Krish despite the respondent having consented to pass the order as prayed for by the appellant so as to do substantial justice in a matter, wherein the betterment of the minor child would be of prime consideration as is held by the Hon'ble Supreme Court?