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2024 DIGILAW 46 (GUJ)

Jalpaben W/o Samir Sangani D/o Shamjibhai Munjpara v. Samirbhai Ratilal Sangani

2024-01-05

DEVAN M.DESAI

body2024
ORDER : 1. Heard learned advocate Mr. Dipal R. Ravaiya for the petitioner-wife. 2. By way of this petition, under Articles 226 and 227 of the Constitution of India, the petitioner-wife has prayed for following the reliefs; “(A) Be pleased to admit and allow this petition; (B) Be pleased to quash and set aside the order dated 24.11.2023 passed by Principal District Judge, Junagadh in Civil Misc. Application No.161 of 2023; (B) Be pleased to transfer the Civil Misc. Application No.41 of 2022 filed by the petitioner from the Court of Additional District Judge, Kheshod to any Court of District Judge, Junagadh, in the interest of justice, in the facts narrated herein above; (D) During the pendency of admission, hearing, and final disposal of the petition, be pleased to transfer the Civil Misc. Application No.41 of 2022 filed by the petitioner from the Court of Additional District Judge, Kheshod to any Court of District Judge, Junagadh; (E) xxx…” 3. Learned advocate for the petitioner-wife has submitted that the petitioner-wife has filed Civil Miscellaneous Application No.161 of 2023 before the learned Principal District Judge, Junagadh for a relief of transfer of the Miscellaneous Civil Application No.41 of 2022 from the learned Additional Court, Keshod to any other learned District Court, Junagadh. The said application came to be rejected by the learned Principal District Court on 24.11.2023. 4. Being aggrieved and dissatisfied with the aforesaid impugned order, the present petitioner-wife is before this Court. 5. The submission of the learned advocate for the petitioner-wife is that the petitioner-wife got married with the respondent-husband on 12.03.2012 and out of the said wedlock, a minor son named Maharshi was born. It is further submitted that because of some marital disputes between the parties, the present petitioner-wife filed an application for custody of minor son named Maharshi before the learned Additional District Court, Kheshod being Miscellaneous Civil Application No.41 of 2022 under the provisions of the Sections 7 and 25 of the Guardians and Wards Act, 1980 (for short ‘the Act’). It is further submitted that because of some marital disputes between the parties, the present petitioner-wife filed an application for custody of minor son named Maharshi before the learned Additional District Court, Kheshod being Miscellaneous Civil Application No.41 of 2022 under the provisions of the Sections 7 and 25 of the Guardians and Wards Act, 1980 (for short ‘the Act’). It is further submitted that before the institution of the said application, the petitioner-wife had filed Criminal Miscellaneous Application No.268 of 2022 under Section 125 of the Code of Criminal Procedure, 1973 before the learned Civil Court, Junagadh and the respondent-husband has also filed a Family Suit No.13 of 2021 under Section 9 of the Hindu Marriage Act before the learned Family Court, Junagadh which is the third litigation between the parties and the same is pending before the learned Family Court, Junagadh. 6. Learned advocate for the petitioner-wife has further submitted that Civil Miscellaneous Application No.161 of 2023 came to be filed by the petitioner-wife on the ground that the respondent-husband is, at present, holding the post of Judicial Officer at Kheshod, Civil Court. It is further submitted that there may be a likelihood that the petitioner-wife may not get justice. The petitioner-wife had made allegations against the learned Judge before whom the matter being Miscellaneous Civil Application No.41 of 2022 was listed for hearing. It is further submitted that the interim application for the custody of the child is not being heard under the one pretext or the other till today. 7. It is further submitted that while rejecting the application for transfer of the Miscellaneous Civil Application No.41 of 2022 under Section 24 of the Code of Civil Procedure, 1908, learned Court below has not considered the provisions of Section 24 of the Code of Civil Procedure, 1908 and has decided the application by considering the merits of the case which is not permissible in the eye of law. 8. In support of his submissions, learned advocate for the petitioner has placed reliance upon the decision of a Co-ordinate Bench of this Court in the case of Vasantben Govindbhai Vaikariya Vs. Govindbhai Thakarshibhai Vaikariya reported in 2006 LawSuit(Guj) 515. 9. 8. In support of his submissions, learned advocate for the petitioner has placed reliance upon the decision of a Co-ordinate Bench of this Court in the case of Vasantben Govindbhai Vaikariya Vs. Govindbhai Thakarshibhai Vaikariya reported in 2006 LawSuit(Guj) 515. 9. Having considered the submissions and the averments made in the petition as well as the statements and the averments made in the Civil Miscellaneous Application No.161 of 2023, it is pertinent to observe that the petitioner-wife herein filed Miscellaneous Civil Application No.41 of 2022 under Sections 7 and 25 of the Guardians and Wards Act, 1980 for the custody of minor son named Maharshi before the learned Additional District Court, Kheshod. In the application itself in para No.14, the petitioner has averred that the respondent-husband is holding the post of Judicial Officer in the Court of Kheshod. Inspite of this fact, an application was filed by the petitioner-wife. It is also averred in the application that the custody of the minor child is with the respondent-husband who is residing within the jurisdiction of the learned District Court, Kheshod. It is also taken into account that the respondent-husband has filed counter-claim before the learned Family Court, Junagadh in the application filed by the petitioner-wife filed under Section 9 of the Hindu Marriage Act being Family Suit No.13 of 2021 before the learned Family Court, Junagadh. In the Civil Miscellaneous Application No.161 of 2023, the petitioner-wife has made allegations against the concerned learned Judge who was conducting the matter. 10. It is needless to observe that when the cases relating to the disputes between husband and wife come in the Court, it is the duty of the Court to conciliate and try to see that the family is not being broken and the parties may again be united. During such process, if any direction is given to any of the party by the concerned learned Judge of the Court either to remain present during the process of conciliation or to act positively keeping aside personal grudges and past ill incidences, it cannot be said that the concerned learned Judicial Officer of the Court is biased. It is to be understood that the conversations that may be undergone between the parties during the course of the conciliation, cannot be reflected and can never come in the way of the parties when the matter is taken up for hearing on merits. It is to be understood that the conversations that may be undergone between the parties during the course of the conciliation, cannot be reflected and can never come in the way of the parties when the matter is taken up for hearing on merits. The mediation / conciliation is nothing, but an attempt to see that the parties are re-conciliated and they may be given a fresh chance to live happily and without any block in mind with their children. In the present case, there is nothing unusual in that direction which was passed on by the learned concerned Judge to the petitioner-wife to remain present for mediation/ conciliation. 11. This Court has taken a serious note of the conduct of the petitioner who made bald allegations against the learned Judge. This Court is of the view that for the reasons mentioned in the application, this petition cannot be transferred from the learned Additional Court, Keshod to the learned Court, Junagadh. Parties cannot decide pick and choose jurisdiction of the Court as per their wishes. 12. Learned Judge has rightly considered the provisions of Section 24 of the Code of Civil Procedure and has rightly considered the legal aspect of Section 9 of the Guardians and Wards Act, 1980 that the jurisdiction is vested with the District Court where the minor is residing. In the present case, it is an admitted fact that the minor is residing with the respondent-husband at Keshod and the learned Court below, Kheshod has a jurisdiction to try and entertain the application under Sections 7 and 25 of the Guardians and Wards Act, 1980. Since the Miscellaneous Civil Application No.41 of 2022 was filed by the petitioner after fully knowing that respected husband is a Judicial Officer at Kheshod Court. There is no substance in allegations made against the learned District Court. The petitioner is warned not to venture into any further allegations against the concerned learned District Court. 13. Thus, there is no merit in the present petition and hence, the same is dismissed. No order as to costs. 14. However, at this stage, the learned Additional District Court, Keshod is directed that the hearing of the interim application which has been filed by the petitioner-wife may preferably be expedited and the same may be decided strictly on merits and in accordance with law, without being influenced by the observations made hereinabove. No order as to costs. 14. However, at this stage, the learned Additional District Court, Keshod is directed that the hearing of the interim application which has been filed by the petitioner-wife may preferably be expedited and the same may be decided strictly on merits and in accordance with law, without being influenced by the observations made hereinabove. It is further made clear that the learned District Judge, Keshod may not be influenced by the allegations made by the petitioner-wife while deciding the interim application.