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Kanubhai Girijashankar Pathak & 2 vs State Of Gujarat & on 7 December, 2017

R/SCR.A/9087/2017 ORDER



STATE OF GUJARAT 1….Respondent(s)

MR PJ KANABAR, ADVOCATE for the Applicant(s) No. 1-3
MR. BK. RAJ, ADVOCATE for the Respondent(s) No. 2


Date : 07/12/2017


1. By this application under Article 227 of the Constitution of
India, the applicants call in question the legality and validity of
the order dated 13.11.2017 passed by the learned 5 th Addl.
Sessions Judge, Kheda at Nadiad in the Criminal Appeal No.33
of 2017, by which, the Appellate Court dismissed the appeal
filed by the applicants herein, thereby affirming the order
passed by the Principal Judicial Magistrate, First Class,
Kapadvanj dated 23.02.2017 below Exh.12 in the Criminal
Misc. Application No.237 of 2016.

2. The facts giving rise to this petition may be summarized
as under;

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2.1 The applicant No.3 and the respondent No.2 are
husband and wife. They got married on 14th May, 2006 at

Kapadvanj. In the wedlock, two sons were born named Meet
and Jay. Meet is the elder son. Meet was born on 05.02.2007
and Jay was born on 21.02.2009 at Ahmedabad.
Unfortunately, matrimonial problems cropped up between the
husband and wife. The wife had to leave her matrimonial
home leaving behind her two minor sons. It appears that one
first information report also came to be lodged for the offence
punishable under sections 498(A), 323, 294(B) read with 114
of the Indian Penal Code and sections 3 and 7 of the Dowry
Prohibition Act. One another first information report has also
been lodged being C.R. No.II-3036 of 2016 with the Sabarmati
Police Station, District: Ahmedabad for the offence punishable
under sections 323, 294(B), 506(1) read with section 114 of
the Indian Penal Code.

2.2 The wife has also initiated proceedings for
maintenance under section 125 of the Cr.P.C. In the last, the
wife filed an application, seeking appropriate relief as regards
her visitation rights so far as the children are concerned under
the provisions of the Domestic Violence Act.

2.3 This petition is with regard to the proceedings initiated
by the wife under the Domestic Violence Act. An application,
Exh.12 was filed, seeking appropriate directions as regards
allowing her to meet her children. The application, Exh.12
came to be disposed of by the court concerned permitting the
respondent No.2 to meet her children at her matrimonial home
on Saturdays and Sundays.

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2.4 The applicants, being dissatisfied and aggrieved by

such order passed by the court concerned, challenged the
same by filing the Criminal Appeal No.33 of 2017 in the court
of the learned Addl. Sessions Judge, Kheda at Nadiad. The
Appellate Court, by an order dated 13th November, 2017,
dismissed the appeal, holding as under;

“Before going further, there is need to produce the
Section 21 of the D.V. Act as under:-

Section 21 Custody orders:-

“Notwithstanding anything contained in any other law for
the time being in force, the Magistrate may, at any stage
of hearing of the application for protection order or for
any other relief under this Act grant temporary custody
of any child or children to the aggrieved person or the
person making an application on her behalf and specify,
if necessary, the arrangements for visit of such child or
children by the respondent: ‘

Provided that if the Magistrate is of the opinion that any
visit of the respondent may be harmful to the interests of
the child or children, the Magistrate shall refuse to allow
such visit.”

Bare perusal of the above said provision, it is crystal
clear that the Magistrate may refuse the visiting right of
the respondent, if he thinks that it would be harmful to
the interest of the children but this court do not find any
such things available on the case file. Before going
further, the Section 23 of the D.V. Act is need to be
reproduced as under:-

Section 23: Power to grant interim and ex- parte order :-

” (i) In any proceeding before him under this Act, the
Magistrate may pass such interim order as he deems just
and proper.

(ii) If the Magistrate is satisfied that an application prima

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facie discloses that the respondent is committing, or has
committed an act of domestic violence or that there is a
likelihood that the respondent may commit an act of
domestic violence, he may grant an ex-parte order on
the basis of the affidavit in such form, as may be
prescribed, of the aggrieved person under Section 18,
Section 19, Section 20, Section 21 or, as the case may
be, Section 22 against the respondent. ”

8. After going through the above statement of law, it is
crystal-clear that an aggrieved person is entitled for
interim custody of children. However, Section 23 of the
D.V. Act specially provides that interim custody would be
allowed if the Magistrate thinks just and proper. Thus, in
this case, it is the opinion of this court that the learned
JMFC has rightly allowed the visiting right of the
respondent u/s. Section 23 of the D.V. Act. Section 21 is
applicable when the court pass the final order after
examining the report as well as both the parties.
However, there is no such type of need while passing the
order u/s. 23 of the D.V. Act. This court is also not
convinced with the arguments of learned counsel that
the present application was filed after six months of the
main application with a simple reason that once the
respondent moved an application u/s. 97 as argued by
the learned. counsel for the appellant, it shows that she
is interested for taking custody of the children. The
law/judgment cited by the learned counsel for the
appellant is also not applicable to this case because in
the law/judgment (supra), the age of child is nearer to
the majority but in this case the age of children is 9 and
11 yeans respectively. It is opinion of this court that at
the age of 9 and 11 years, the children are easily
convinced by either party. Thus, the arguments of the
learned counsel on the point that the children has
refused to go with the respondent is without any legal
force. In this case, the Magistrate allowed only an interim
visiting right and main application is still pending’ before
the learned. Magistrate. This court is of the opinion that it
is yet to be decided that who is entitled for the custody.
She is a mother of the children. Admittedly, there are
other litigations ‘which are going on. It is well settled that
a custody of the children is decided only on the
parameter of the welfare of the children but at this stage
the interim visiting’ right. has been granted which is just
and proper as per the facts and circumstances of the

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case. Thus, the arguments of learned counsel for the
appellants are without force. Therefore, after going
through the impugned order, this court do not find any
error in the front of facts or law. There is no need to
interfere in the order under challenge at this stage.
Hence, this court pass following order.

: OR D ER ::

1. The present appeal has no merits and deserves to
be dismissed and the same is hereby dismissed without
any cost. The order passed by the learned Judicial
Magistrate First Class is hereby upheld/confirmed.

2. It is desirable for the learned Principal Judicial
Magistrate First Class to proceed expeditiously in the
matter and dispose of the same as early as possible.”

2.5 Being dissatisfied with the order passed by the
Appellate Court, the applicants are here before this Court with
this application under Article 227 of the Constitution of India
invoking the supervisory jurisdiction of this Court.

2.6 On 1.12.2017, the following order was passed;

“1. The applicant No.3-Tejaskumar Kanubhai Pathak is
present today before this Court along with his two sons,
namely, Meet and Jay respectively. The father of the
applicant No.3, namely, Kanubhai Pathak is also present
in the Court. The respondent No.2-Tejalben Pandya is
also present in the court today.

2. I am of the view that a little more effort would yield
some positive result. I see a ray hope for a happy
reconciliation. I had a talk with both the sons in the
presence of Ms. Thakkar, the learned APP. The sons have
some prejudice towards their mother. It is possible that
on account of the dispute between the husband and wife,
the children are psychologically effected. It will take
sometime for the children to get, once again, adjusted
with their mother.

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3. This Court would like to talk to the mother of the
husband. The applicant No.2 shall remain present before
this Court on 7th December, 2017. The matter will be
taken up in the chamber at 2:00 p.m.

4. Post the matter for further hearing on 7th
December, 2017. ”

2.7 Taking into consideration the nature of the dispute and
keeping in mind the interest of one and all, more particularly,
the minor children, I thought fit to intervene so as to persuade
the parties to bury their differences and reconcile. Despite
best of the efforts at my end as well as at the end of Ms.
Thakkar, the learned APP appearing for the State, the parties
have not been able to reach to any amicable settlement. Both
the sides are adamant in their own way. The most disturbing
feature of this litigation is that the two children, namely, Meet
and Jay are seriously prejudiced towards their mother. It is
difficult for this Court to read the minds of the sons. Why so
much of prejudice, at the end of the two sons towards the
mother, is not clear.

2.8 According to the wife, the applicants have poisoned the
minds of the two sons. It is alleged that they have been
tutored and brainwashed.

2.9 I had a word with the husband and his mother, who are
present in the Court today. The mother of the husband made
herself very clear that she has never come in the way of the
matrimonial life of her son and daughter-in-law. She denied
the allegations levelled by the respondent No.2 as regards
tutoring and brainwashing the children.

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2.10. Be that as it may, if the parties would have been able
to reconcile, nothing would have been better. If the wife would
have agreed to go back her matrimonial home, then I am sure,
within couple of days, the children would have come around
and started showing affection towards their mother. The
respondent No.2 is very diffident in this regard. She has lost
confidence in the applicants, and at the same time, the
applicants have also lost confidence in the respondent No.2. In
this scenario, it would be difficult to workout any formula for
an amicable settlement.

3. Mr. Kanabar, the learned counsel appearing for the
applicants also tried his best to persuade his clients to resolve
the matter. However, the efforts of Mr. Kanabar have also

4. I am of the view that the impugned order should be
allowed to be given effect to so as to observe the conduct of
the parties as well as the children. What is not approved and
disliked by the applicants is the respondent No.2 coming at her
matrimonial home along with her mother, two members of the
NGO and the police. Well, the applicants may be justified in
redressing such grievance. In such circumstances, I have
impressed upon the respondent No.2 and her mother that they
should not take any police officer or any member of the NGO
as and when the respondent No.2 visits the matrimonial home
for the purpose of meeting her children. At the same time, I
expect the applicants also to cooperate and see to it that on
Saturdays and Sundays, the respondent No.2 is permitted to
see her children. Initially even if the attitude of the children is
hostile towards the mother, perhaps, by passage of time,

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things may improve and the marriage could also be saved.

5. I am of the view that time is the best healing factor. Both
the sides should understand and handle the situation.

6. For the present, I am not disposing of this matter. I would
like to observe how things proceed further. The respondent
No.2 shall visit her matrimonial home on Saturdays and
Sundays, but with an understanding that no one else will
accompany her except her family members. At the same time,
the applicants shall also ensure that the respondent No.2
meets her children.

7. As I noted earlier that whatever may be the differences
between the husband and wife, or the wife and the mother-in-
law, or the father-in-law, the children should not be made to
suffer. In such circumstances, I expect the father and his
family members to inculcate good values in the two children
and see to it that the children shows respect towards their
mother. After all, the mother has given birth to the children.

8. Post the matter on 9th January, 2018. On 9th January,
2018, the parties shall again remain present before this Court
and inform about the developments.



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