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Rucha Bhanubhai Patel vs Kaivalya (Kevin) Pransukhbhai … on 27 July, 2021

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C/SCA/2580/2021 ORDER DATED: 27/07/2021

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 2580 of 2021

RUCHA BHANUBHAI PATEL
Versus
KAIVALYA (KEVIN) PRANSUKHBHAI PATEL

Appearance:
MR MEET A SHAH(9933) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N)(11) 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 227 of the Constitution of India, the
petitioner has prayed to direct the learned Family Court, Ahmedabad to
hear and dispose of the pending Family Suit No.549 of 2019 filed by the
petitioner seeking dissolution of marriage under
section 13(1)(ia) and
13(1)(ib) of the Hindu Marriage Act, 1955 (“HM Act” for short) against
her husband as expeditiously as possible, in view of the fact that the same
has been pending before the learned Family Court, Ahmedabad since
almost two years.

2. The present petition has a chequered history as can be gathered
from the facts set out in the memo of the petition.

3. The marriage between the petitioner and the respondent was
solemnised on 21.6.2014 as per Hindu rites and rituals. The respondent
husband within 24 days of the marriage left for Canada with a promise
that he would initiate necessary legal process to call the petitioner to
Canada. Since his departure for Canada after marriage, the respondent has
not returned to India nor has he initiated any legal process for

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immigration of the petitioner to Canada. After the departure of the
respondent, the petitioner started living at her matrimonial home with her
father-in-law, mother-in-law and sister-in-law who is suffering from
down syndrome. To her dismay, the in-laws of the petitioner started
pressurising her to make her parents to shell out a sum of Rs. 2 lakhs for
the purpose of expenses of her immigration to Canada. This demand,
according to the petitioner, was met by her parents. However, there was
not let up and the in-laws started subjecting the petitioner to physical and
mental harassment and demanded further money. In due course, the in-
laws also left for Canada and except father-in-law none has returned to
India.

4. The petitioner, therefore, filed an FIR being CR-I No.14 of 2016
with the Ghatlodia Police Station, Ahmedabad for the offences
punishable under
sections 498A, 323 read with section 114 of the Indian
Penal Code (IPC for short) and
sections 3 and 7 of the Dowry Prohibition
Act against her father-in-law and mother-in-law.

5. The father-in-law of the petitioner is the power of attorney holder
of the respondent. He, therefore, being power of attorney holder filed
Family Suit No.588 of 2016 for dissolution of the marriage between the
petitioner and the respondent. He thereafter has withdrawn the suit on
29.7.2017.

6. The father-in-law of the petitioner preferred Criminal Misc.
Application No.17105 of 2016 under
section 482 of the Code of Criminal
Procedure (“the Code” for short) in this court for quashment of FIR being
CR-I No.14 of 2016. This court has by order dated 17.2.2017 rejected the
application.

7. The petitioner having realised that she is deserted by the

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respondent and being subjected to cruelty by her in-laws has instituted
Family Suit No.549 of 2019 in the Family Court, Ahmedabad for
dissolution of marriage between her and the respondent under sections
13(1)(ia) and 13(1)(ib) of the HM Act on 12.3.2019, which is pending.
Hence, the present petition is preferred for direction to the court below
for expeditious disposal of the divorce petition.

8. At the threshold it is relevant to reproduce the observations made
by this court while rejecting the quashing petition filed by the father-in-
law of the petitioner being Criminal Misc. Application (for Quashing
Set Aside FIR/Order) No.17105 of 2016 decided on 17.2.2017, which
reads as infra :-

“By this application under Section 482 of the Code of Criminal
Procedure, 1973, the applicant – original accused seeks to invoke the
inherent powers of this Court, praying for quashing of the FIR being
CR-I No.14 of 2016 registered with the Ghatlodia Police Station,
Ahmedabad, for the offence punishable under
Sections 498A, 323
read with
Section 114 of the Indian Penal Code as well as Sections 3
and
7 of the Dowry Prohibition Act.

The case of the first informant may be summarised as under :

The first informant got married with the son of the applicant herein, viz.
Kaivalya Pransukhbhai Patel, on 21st June 2014. The original accused
no.1, i.e. the husband of the first informant, has settled in Canada.
Initially, he was in the United States but later shifted to Canada. For
the purpose of marriage, he came down to India on 10th June 2014.
Within eleven days the marriage was fixed. Within 24 days from the
date of the marriage, the husband left again for Canada and thereafter
till this date has not turned up. In the FIR, it has been stated that
before leaving for Canada, he had promised the first informant that he
would initiate appropriate legal process to call her to Canada. After the
departure of the husband, she lived at her matrimonial home along
with her father-in-law, mother-in-law and a mentally retarded sister-

inlaw. It is alleged that the father-in-law and mother-in-law asked the
first informant to get an amount of Rs.2 lac from her parents for the
purpose of visa and other expenses. They made it very clear to her
that if she wanted to go to Canada and join her husband, she would
have to bear the expenses. They also insisted to meet with the
expenses incurred by them for the education of their son. It is stated in
the FIR that with a view to save the marriage, the parents of the first

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informant paid Rs.2 lac to the in-laws. Despite all this, there was lot of
harassment at the end of the in-laws at the matrimonial home. After
sometime, they demanded Rs.15 lac for sending the first informant to
Canada. The first informant has leveled allegations of physical torture,
etc.

In December 2014, the first informant was driven out of her
matrimonial home. There was no response at the end of the husband
sitting in Canada. One day, she learnt that the father-in-law, mother-in-
law and sister-in-law all had left for Canada. It is her case that her
‘streedhan’ properties are also lying with the in-laws.

On 19th January 2017, the following order was passed :

“1. It appears from the materials on record that the respondent
No.2 herein original first informant got married to the son of the
applicant herein. The marriage was solemnized on 21st June
2014. Within twenty days from the date of the marriage, the
husband left for Canada. It is the case of the applicant herein
i.e. the father-in-law that he all tried to see that the first
informant joins her husband at Canada. However, it did not
materialise. As on date, the husband is in Canada. In my view,
having regard to the circumstances, as on date, and the time
which has elapsed, the case at hand is one of an irretrievable
breakdown of marriage. I am told that the husband has filed
proceeding for divorce in the Family Court at Ahmedabad. In my
view, the first informant should give her consent to dissolve the
marriage. I am saying so, because having regard to the age of
the party, the first informant, as on date, is aged 32. She can
settle in life and live in peace. The first informant is present
today in the Court along with her father. She has agreed to give
her consent for dissolution of the marriage. If necessary, a fresh
application can be filed under
Section 13B of the Hindu
Marriage Act for dissolution of the marriage with mutual
consent. The only aspect, which needs to be worked out, is the
terms of settlement. I request both the learned counsel
appearing for the parties to sit together and work out the terms
of settlement at the earliest. I request both the learned counsel
and the parties to see that negotiation may not be broke-down
or failed only because of certain terms of settlement. The
settlement will be in the interest of one and all.

2. Let Rule be issued to the respondents, returnable on 2nd
February 2017. Ms. Pathak, the learned Additional Public
Prosecutor waives service of notice of rule for and on behalf of
the respondent No.1 the State of Gujarat. Mr. A.D. Oza, the
learned counsel waives service of notice of rule for and on
behalf of the respondent No.2. Direct service is permitted.

3. Let there be an ad-interim order in terms of para 8[b].

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4. If ultimately the parties are not able to reach for an amicable
settlement, this matter will be heard on its own merits.”

The father-in-law, i.e. the applicant no.2, flew down to India to put an
end to the marriage. He has made himself very clear that at no cost his
son is ready and willing to call the first informant to Canada. He also
made himself very clear that neither he himself nor his son would pay a
single penny towards the maintenance of the first informant. On the
contrary, he levelled a very nasty allegation that the first informant
failed to consummate the marriage on the very first night. He was bold
enough to state in the open court that his son realized within 24 days
of his stay in India after marriage that he would not be able to live a
happy marital life with the first informant.

The position as on date is that the applicants all together have ruined
the life of an innocent girl. She has lost everything. Her father had to
incur a huge expense at the time of her marriage. Her ‘streedhan’
properties are also not being handed over.

To a certain extent, I hold the first informant and her parents also
responsible because I have a feeling that what they saw in the boy was
that he had settled himself in Canada. If marriages are fixed in this
manner within eleven days, this is bound to happen. Many innocent
girls have ruined their lives in the zeal and desire to get married and
settle in a foreign country.

Having heard the learned counsel appearing for the parties and having
considered the materials on record, I am of the view that more than a
prima facie case is made out against the applicant herein and the other
co-accused. This is not a case in which I should exercise my inherent
powers under
Section 482 of the Code of Criminal Procedure, 1973,
and quash the FIR. On the contrary, this is a case wherein I should
direct the authorities concerned to secure the presence of the husband
in India at any cost. I expect the husband to come down to India and
settle the matter. The first informant is also ready and willing to
dissolve the marriage with mutual consent.

I am told that the husband has initiated proceedings for divorce before
the Family Court, and that too, through his father, i.e. the applicant
herein.

In the result, this application fails and is hereby rejected. The ad-
interim order earlier granted stands vacated. Rule discharged.

The Investigating Officer shall initiate appropriate proceedings to
secure the presence of the husband before the court in India for the
purpose of answering the charge. The Investigating Officer shall
look into the provisions of
Sections 105A and 105B of the Code of
Criminal Procedure including the decision of the Supreme Court

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in the case of Bhavesh Jayanti Lakhani v. State of Maharashtra
and others, (2010)1 GLR 1, and do the needful in accordance with
law at the earliest.”

9. This court while issuing notice for final disposal vide order dated
10.2.2021 directed the Registry to serve the notice to the respondent
directly through e-mail which is mentioned in the cause-title of the
petition.

10. It emerges from the order dated 24.3.2021 that Mr. K.V. Shelat,
learned advocate sought time as, according to him, he had instructions to
appear on behalf of the respondent. The matter, therefore, was adjourned
to 15.4.2021. However, it appears that thereafter Mr. Shelat has not filed
appearance on behalf of the respondent.

11. It is thus eminently clear that the notice of this petition is duly
served to the respondent via e-mail.

12. The averments made in the petition as also the observations made
by this court in the order dated 17.2.2017 passed in Criminal Misc.
Application (for Quashing Set Aside FIR/Order) No.17105 of 2016
clearly demonstrates that the respondent after solemnising marriage with
the petitioner has left for Canada and since then he has not returned to
India nor has he undertaken any legal process for the purpose of
immigration of the petitioner to Canada. Moreover, the mother-in-law
and the sister-in-law of the petitioner have also left for Canada.

13. In view of the above, considering the fact that the petitioner is left
in lurch by the respondent and was allegedly subjected to harassment and
cruelty by her in-laws, as alleged by her, I am of the opinion that this is a
fit case for issuing direction to the trial court for expeditious disposal of
Family Suit No.549 of 2019 which the petitioner has instituted for

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dissolution of her marriage with the petitioner.

14. For the foregoing reasons, the petition is allowed. The Family
Court, Ahmedabad is directed to decide Family Suit No.549 of 2019 on
the basis of ocular and documentary evidence that may be adduced, in
accordance with law, as expeditiously as possible but not later than 31 st
January, 2022.

15. 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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