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Prashant Kumar S/O Shri Punya Deo … vs Priyanka Choudhary D/O Shri … on 27 July, 2021

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C/SCA/4124/2021 ORDER DATED: 27/07/2021

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 4124 of 2021

PRASHANT KUMAR S/O SHRI PUNYA DEO SINGH
Versus
PRIYANKA CHOUDHARY D/O SHRI ARBIND KUMAR CHOUDHARY

Appearance:
MR ASHISH B DESAI(5163) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR KISHAN R CHAKWAWALA(9846) for the Respondent(s) No. 1

CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE

Date : 27/07/2021

ORAL ORDER

1. In this petition under Article 226/227 of the Constitution of India,
the petitioner has challenged the order dated 29.1.2021 passed by the
Judge, Family Court No.3, Ahmedabad below Exhibit-5 in Civil Misc.
Application No.39 of 2020. By the impugned order, the learned trial
Judge has partly allowed Exhibit-5 application and while rejecting the
prayer to grant interim custody of minor son Jaivardhan to the petitioner
pending the CMA, visitation rights to meet the minor on every first and
third Saturday of the calendar month at Mediation Centre of the Family
Court, Ahmedabad between 12:00 noon and 2:00 p.m. is granted.

2. The facts giving rise to this petition are not many and move in a
narrow compass. The petitioner and the respondent happen to be husband
and wife. Their marriage was solemnised as per Hindu rites and rituals on
6.5.2013 at Patna in presence of relatives and friends. A son named
Jaivardhan is born from this wedlock on 16.6.2015. He is, therefore
around six years of age. The marriage between the petitioner and the
respondent sailed rough weather and they started residing separately. The

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minor son Jaivardhan is with the respondent wife. The petitioner,
therefore, preferred an application being Civil Misc. Application No.39
fo 2020 in the Family Court, Ahmedabad under
section 25 of the
Guardians and Wards Act (GNW Act for short) for permanent custody of
the minor. He also took out Exhibit-5 application in the proceedings for
interim custody of the child till final disposal of the application. As noted
hereinabove, the learned trial Judge by the impugned order has rejected
the prayer for interim custody, however, has granted the visitation rights.
The petitioner being not happy with the impugned order has preferred the
present petition.

3. I have heard Mr. Ashish Desai, learned advocate for the petitioner
and Mr. Manan Doshi, learned advocate for Mr. Kishan R. Chakwawala,
learned advocate on caveat for the respondent.

4. Mr. Desai submits that the petitioner is an IRS Officer and he is
well settled in life and is in a position to take care of the child. According
to his submission, when the parents of the respondent were infected with
COVID, she had gone to her native place for about a month, leaving the
minor son in the care of the petitioner. It is his submission that during this
period, the minor son was very happy and comfortable in the company of
the petitioner. He submits that the atmosphere in the Mediation Centre at
Family Court, Ahmedabad is not conducive for meeting the minor child
for brief duration of around two hours. He, therefore, submits that the
petition requires consideration.

5. In the alternative, he submits that the at least custody of the minor
child may be given to the petitioner during weekends pending disposal of
the main application and the trial of the main application may be
expedited.

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C/SCA/4124/2021 ORDER DATED: 27/07/2021

6. Mr. Doshi, learned advocate for the respondent has supported the
impugned order. According to his submission, this petition is essentially
under
Article 227 of the Constitution of India and, therefore, the
impugned order does not warrant interference when no perversity or
illegality is pointed out.

7. I have given my thoughtful consideration to the rival submissions.

8. It is not in dispute that the main application under section 25 of the
GNW Act instituted by the petitioner for permanent custody of minor son
is pending in the Family Court, Ahmedabad.

9. The learned trial Judge after considering the rival contentions has
recorded the following findings:-

“8. Moreover, this Court also feels that the father might
have love and affections towards his child and he might have
desire to meet his child also. On the other hand, the child should
also not be deprived off from getting love and affections from the
father during childhood and he should not become the victim of the
disputes between their parents and at the same time, they should
also not be used as a tool in their battle. The child cannot be
treated as a property or a commodity. It is the duty of both the
parents to see wellbeing of the minor child and it is also their duty
to see that minor child do not lose contact of their non-custodial
parent.

9. Therefore, without going into the merits of the case, at
this interim stage, considering the facts and circumstances of the
case and looking to feelings of the father towards his child, in the
paramount interest and welfare of the child, the petitioner-father

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may be granted visitation rights to meet his child in the interest of
justice.

10. Therefore, according to this Court, the custody of the
minor child cannot be handed over to the petitioner at this stage,
but as the petitioner is a biological father of the minor child and he
is entitled for visitation right to meet his minor child. Therefore,
the petitioner-father can be permitted to see and to meet the minor
child and by making such arrangement, no body has to lose
anything at present.”

10. I am of the considered opinion that the learned trial Judge has
assigned cogent and convincing reasons for not granting interim custody
to the petitioner pending trial of the main application, however, has
rightly granted visitation rights. The learned trial Judge has passed the
impugned order in exercise of discretionary powers and in the facts of the
case, I am of the opinion that this is not a fit case to substitute the
plausible discretion by this court.

11. In view of the above, I do not find any merit and substance in this
petition. As a consequence, the same is dismissed at the threshold.

12. Considering the peculiar facts of the case, I am of the view that the
trial of the main Civil Misc. Application No.39 of 2020 is required to be
expedited. The learned Judge, Family Court, Ahmedabad is, therefore,
directed to give priority to Civil Misc. Application No.39 of 2020 and
make sincere efforts to dispose it of as expeditiously as possible in
accordance with law on the basis of ocular and documentary evidence
that may be produced by the parties without being influenced by the
impugned order.

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13. It is clarified that this court has not examined the merits of the
case.

(A.G.URAIZEE, J)
Z.G. SHAIKH

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