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2019 DIGILAW 415 (GUJ)

DARSHAN NIRANJANKUMAR BRAHAMBHATT v. JYOTI DARSHANKUMAR BRAHAMBHATT

2019-04-15

A.J.SHASTRI

body2019
ORDER : 1. The present Civil Revision Application is filed for the purpose of seeking following reliefs : (A) Your Lordship be pleased to allow this petition and further be pleased to quash and set aside the impugned order passed by the Principal Judge, Family Court, Ahmedabad dated 28.2.2019 vide Exh.31 in Family Suit No.1837 of 2016. (B) Further be pleased to stay the impugned order passed on 28.2.2019 by the Principal Judge, Family Court, Ahmedabad vide Exh.31 in Family Suit No.1837 of 2016, during the pendency and final hearing of the present revision application. (C) Further be pleased to grant any other and further relief/s which deems just fit and proper in the interest of justice.” 2. It is the case of the petitioner that the petitioner had filed a suit before the Family Court, Ahmedabad against the present respondent for seeking divorce under Section 13(A) of the Hindu Marriage Act, essentially on the ground of desertion, which was numbered as Family Suit No.1837 of 2016. It is the case of the petitioner that in between during the pendency of the proceedings, some development has taken place. As a result of this, the matter was sent to the councilor and the both the parties were agreed for settlement and also agreed to seek divorce by mutual consent. Accordingly, the parties have submitted mutual consent divorce petition under Section 13(B) of the Hindu Marriage Act and thereafter, the present petition is to be withdrawn. On account of this litigation, both the parties have also to inter-alia settle the terms regarding their daughter named as ‘Diya’, who is aged about 14 years. But, somehow the matter could not be resolved in the meantime. It is further the case of the petitioner that during the pendency of this litigation, an application Exh.31 came to be submitted on 17.10.2018, seeking to grant special permission to the respondent – defendant for renewal of passport of a daughter named as ‘Diya’ along with identity card etc. The present petitioner has submitted the reply to the said application at Exh.36. But as per the say of the petitioner, from 28.11.2018 till 5.2.2019, learned advocate appearing for the defendant did not take the task for hearing the said application Exh.31 and from time to time, same was adjourned. The present petitioner has submitted the reply to the said application at Exh.36. But as per the say of the petitioner, from 28.11.2018 till 5.2.2019, learned advocate appearing for the defendant did not take the task for hearing the said application Exh.31 and from time to time, same was adjourned. Thereafter, on 26.2.2019, another advocate, Mr.Naik, submitted an application to take up the matter on board and the matter was kept then on 28.2.2019 and the matter was transferred from 4th Court to 1st Court, without intimating or without issuing the notice to the party and without there being any transfer application. But, somehow, after hearing, the learned Principal Judge, 1st Court heard the application Exh.31 and passed an order on 28.2.2019 which is made the subject matter of present revision petition. 3. Mr.Vasant S. Shah, learned advocate appearing for the petitioner, has vehemently submitted that the order in question is not legal and valid and the Family Court has passed an order as if it is the proceedings under the Guardian and Wards Act. Despite the fact that particulars regarding cause by length is not detailed out in an application, the Family Court allowed the said application. It has further been contended that proper reasons are also not assigned by the learned Judge, who passed an order and accordingly, the impugned order deserves to be corrected. A further contention is raised that after the change of advocate, an application was moved and then, the order came to be passed. That circumstance also is eloquent enough to examine from this angle, as well. Hence, the learned advocate has requested the Court to set aside the impugned order which has been passed by the Family Court. No other submissions have been made. 4. To meet with this stand, Mr.Hriday Buch, learned advocate for the respondent, has submitted that in between the fight, the daughter is suffering and her career has been at stake. If the relief which has been sought is not granted, there may be a serious prejudice to the career of the child and rather, it would ruin the future prospect of the child. If the relief which has been sought is not granted, there may be a serious prejudice to the career of the child and rather, it would ruin the future prospect of the child. It has further been submitted that non-renewal of passport will create serious complications since the loss about citizenship is very drastic in USA and as such, a request is made that when a balanced order is passed by the Family Court, the same may not be interfered with. Mr.Hriday Buch, learned advocate, has submitted that here is a case in which mere renewal of passport is to be considered and permitted and that non-cooperation which has been shown to a minor child itself is an unfair attitude. Hence, there is no error committed by the court below in any form. Accordingly, the revision petition deserves to be dismissed. No other submissions have been made. 5. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, it appears that the learned Judge has examined the issue from the overall interest of minor daughter, who is stated to be aged about 14 years and the learned Judge has also found that the request by way of application Exh.31 is for the purpose of facilitating the renewal of passport of the child and to carry out the process. The learned Judge, after hearing both the parties, has come to a definite conclusion that interest of justice would be met if such request is granted. While passing the order, the learned Judge has taken into consideration and observed in terms which deserve to be reproduced hereinafter : “2. It has been submitted by defendant that she is the real mother of ‘Diya Dashan Barot’, aged about 14 years. It has been submitted that her daughter is the citizen of USA and, at present, residing with her in India. It has been submitted that passport of her daughter is likely to be expired soon and same is required to be renewed at the earliest. It has been submitted that consent or presence of parents of minor child is must for the purpose of renewal of passport of minor child in view of the rules and regulations of USA. It has been submitted that plaintiff is residing in USA. It has been submitted that consent or presence of parents of minor child is must for the purpose of renewal of passport of minor child in view of the rules and regulations of USA. It has been submitted that plaintiff is residing in USA. It has been submitted that defendant made repeated requests to plaintiff to give his consent for renewal of passport of her daughter, but plaintiff has not given his consent for renewal of passport of her daughter and has shown false excuses. It has been submitted that minor daughter is residing with her and her daughter is well looked after and maintained by her and plaintiff has not discharged his obligation as father. It has been submitted that if passport of her minor daughter is not renewed, career of her daughter would be ruined and seriously affected, and therefore, it would be in the interest and welfare of her daughter to give authority to her to renew the passport of her daughter. 3. The plaintiff has filed reply vide Exh.36. It is apparent that reply filed by plaintiff is absolutely vague and evasive and plaintiff has taken false and frivolous contentions, which are against the welfare and interest of minor daughter. 4. There is substance in the say and submission of defendant / mother. The defendant is the real mother of minor child. The minor child is in the custody of defendant and minor child is very well looked after and maintained by defendant. The plaintiff / father resides at USA and not cooperating the defendant for the renewal of passport of minor child, which is not fair and just. 5. Thus, considering totality of the facts and circumstances, this application deserves to be granted and permission is required to be granted to defendant to follow all necessary procedure as guardian of minor child to renew the passport of minor child.” 6. In view of aforesaid situation prevailing on record, in the fight between the parents, if the child is not to be taken care of at least for the purpose of renewal of passport, a serious consequence would fall back upon the career. Hence, the question of welfare of a daughter has arisen, it appears to this Court that the learned Judge of the Family Court has rightly undertaken the exercise of considering the request of the respondent herein. 7. Hence, the question of welfare of a daughter has arisen, it appears to this Court that the learned Judge of the Family Court has rightly undertaken the exercise of considering the request of the respondent herein. 7. Additionally, it is also appearing from the entire order that the submission which has been made about the transfer from one court to another and then, to pass an order, is appearing to be an afterthought contention, particularly when no such contention or resistance is made by the petitioner before the Family Court which has passed an order and as such, the Court is not inclined to accept such kind of contention which indirectly casting the aspersion on the learned Judge. In fact, while passing the impugned order, the Court found that the learned Judge has heard both the parties to the proceedings. Both the parties have submitted to the jurisdiction of the concerned Family Court and it is only after hearing at length and considering the welfare of child, the order is passed which in considered opinion of this Court, is not perverse or suffers from any material irregularity. The Court also fund that for invoking the provision of Section 115 of the CPC, no glaring error is shown or any of the condition precedent. That being the position, since the welfare of a child is taken care of by the Family Court, this Court is unable to exercise jurisdiction under Section 115 of the CPC. Hence, the revision petition being devoid of merit, deserves to be dismissed and the same is dismissed, with no order as to costs.