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Vijaysinh Ramkishorsinh Rathod vs Jyoti Vijaysinh Rajput on 30 September, 2019

C/CRA/225/2019 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CIVIL REVISION APPLICATION NO. 225 of 2019

VIJAYSINH RAMKISHORSINH RATHOD
Versus
JYOTI VIJAYSINH RAJPUT

Appearance:
MR. DIVYANG A RAMANI(7180) for the Applicant(s) No. 1,2
MR ADIL R MIRZA(2488) for the Opponent(s) No. 1

CORAM: HONOURABLE DR.JUSTICE A. P. THAKER

Date : 30/09/2019

ORAL ORDER

1. The applicants – original opponents have preferred this civil
revision application under Section 115 of the Code of Civil
Procedure, 1908 (hereinafter be referred to as “the CPC”) against
the judgment and order dated 18.03.2019 passed by the learned
14th Additional Sessions Judge, Bardoli, whereby, the learned
Additional Sessions Judge has allowed the application being Civil
Misc. Application No.34 of 2016 filed by the respondent – original
applicant – wife.

2. Heard Mr.Divyang Ramani, learned advocate for the
applicants and Mr.Adil Mirza, learned advocate for the respondent.
Perused the materials placed on record.

3. Learned advocate for the applicants has submitted that the
age of the son is now 7 years and above and he is studying in the
school. He has submitted that the case was filed against the
applicants by the respondent and the respondent – wife has no
source of income and she is depending on the order of maintenance

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C/CRA/225/2019 ORDER

and hence, the financial condition of the present respondent is
sound and he can properly take care of his son and now, the son is
with the respondent – wife since 2016 and the Trial Court has not
properly appreciated the facts and has committed serious error of
law and facts in passing the impugned judgment and order directing
the applicants herein to handover the custody of the son to the
present respondent. He has submitted that the welfare and future of
the child is with the father and not with the mother. He has prayed
to allow the present application.

4. Per contra, learned advocate for the respondent has
vehemently submitted that out of the wedlock, one son and one
daughter were born and there is no dispute regarding that fact. He
has submitted that son Suryapratapsinh has born on 24.09.2013
and daughter Riya has born on 22.06.2015. While referring to the
original petition, he has submitted that the son was with respondent

– wife and parents and present applicant – husband have snatched
away custody of the son under the guise of meeting with the child
and, therefore, the wife has filed police complaint and the police did
not take any action and, therefore, she has to move such
application for search warrant. Against which, the present
applicants have moved quashing petition being Criminal Misc.
Application No.30442 of 2016 which is still pending and as per the
direction of the Court, the respondent has filed an application under
the Guardians and SectionWards Act before the Trial Court, and proper
opportunity was given to the applicants herein for leading their
evidence, but none has appeared before the Trial Court to cross-
examine the witness of the wife. Ultimately, after perusing the
evidence, the impugned order has been passed by the Trial Court in
consonance with the facts and law. He has submitted that the
payment of maintenance to the wife and children is legal duty of the
applicant. He has submitted that the applicant – husband has
sought for the custody and possession of the son and he has not

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tried to get the custody of the daughter. He has submitted that the
Trial Court has not committed any error of law and facts and this
being a civil revision application, the powers of this Court may not
be exercised and the application may be dismissed with cost.

5. It is well settled principle by catena of decisions that the High
Court, while considering the matter in exercise of its jurisdiction in
civil revision application would not reverse the finding of fact as
recorded by the Courts below. But it is not an absolute proposition.
In a case where the finding is recorded without any legal evidence
on the record, or on misreading of evidence or suffers from any
legal infirmity, which materially prejudices the case of one of the
parties or the finding is perverse, it would be open for the High
Court to set aside such a finding and to take a different view. The
exercise of the revisional power is broadly subject to the following
conditions;

(1) That the decision must be of a court subordinate to the High
Court;

(2) That there must be a case decided by a subordinate court;
(3) No appeal must lie either to the High Court or to any lower
appellate court against the decision;

(4) In deciding the case, the subordinate court must appear to
have – (a) exercised a jurisdiction not vested in it by law, or (b)
failed to exercise a jurisdiction vested in it by law, or (c) acted in
the exercise of its jurisdiction illegally or with material irregularity.
The High Court in exercising the revisional powers is in its very
nature is a truncated power. The width of the powers of the
revisional court cannot be equated with the powers of the appellate
court. In exercising the legality and the propriety of the order under
challenge, what is required to be seen by the High Court is whether
it is in violation of any statutory provision or a binding precedent or
suffers from misreading of the evidence or omission to consider

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relevant clinching evidence or where the inference drawn from the
facts proved is such that no reasonable person could arrive at or the
like. It is only in such situations that interference by the High Court
in revision in a finding of fact will be justified. Mere possibility of a
different view is no ground to interfere in exercise of revisional
power.

6. It appears from the impugned order that the Trial Court has
taken into consideration the fact that the wife has admitted the
facts and has submitted that out of the wedlock, one son and one
daughter were born namely Suryapratapsinh and Riya and due to
mental harassment, she has to stay with her parental home with
two children. She has submitted that her husband is addicted of
taking liquor and has caused mental torture to her. She has stated
that when she was at her parental home, the applicants’ relative
visited the house and snatched away the custody of minor son and
they flee away with minor son Suryapratapsinh in the car. She has
narrated the fact that the applicants informed that they have no
custody of the child. She has narrated that the respondent’s father
has lodged the complaint before Bardoli Police Station but no legal
action has been taken by the police and, therefore, she has filed an
application for search warrant under Section 97 of the Criminal
Procedure Code against the present applicants. Against which, the
applicants have filed quashing petition being Criminal Misc.
Application No.30442 of 2016 which is still pending and during the
quashing petition, this Court has passed the order that the order
shall not preclude the respondent No.2 i.e. wife from initiating
appropriate proceeding under the Guardianship and SectionWards Act in
accordance with law. She has narrated that therefore, she has
approached the Trial Court and at that time, the age of the minor
son was three and half years.

7. It appears from the impugned order that same was resisted by

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the respondents i.e. present applicants. It also appears that during
the pendency of that petition, the evidence in the form of affidavit
was produced by the applicant – wife therein and the respondents
therein have not appeared before the Trial Court for cross-
examination of the applicant and her witnesses nor have produced
any documentary evidence and ultimately, the Trial Court has
closed the rights of the respondents therein for cross-examination of
the witnesses. After perusing the evidence on record, the Trial Court
passed the order directing the respondents therein to handover the
custody of minor son Suryapratapsinh to the applicant therein i.e.
wife on or before 31.05.2019 with liberty to the respondent No.1
father to meet his son on every Sunday between 1.00 A.M. to 06.00
P.M.

8. It appears from the record that in the present application, the
applicants have produced such documents to show that the son is
studying. But these papers are produced in the present matter for
the first time and there was an opportunity to the husband to
produce such documents before the Trial Court and he has not
chosen to do so. This being a revision application, the scope of
interference by the Revisional Court is very much limited unless and
until, it appears that the Trial Court has committed serious error of
jurisdiction or not considered the factual aspects of the matter, the
Revisional Court cannot interfere in such order. On perusal of the
impugned order, it is clearly found that under the provisions of the
Guardians and SectionWards Act, the Trial Court has passed the impugned
order with a liberty to the father to meet his son on every Sunday
between 1.00 A.M. to 06.00 P.M. At this stage, it is pertinent to note
that against the order dated 19.03.2019, there is no stay granted.
Otherwise also, on perusal of the impugned order, it is found that
the Trial Court has not exceeded its jurisdiction and has not
committed any serious error of law and facts and the impugned
order cannot be said to be perverse in the facts and circumstances

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of the case.

9. In view of the above, the present Civil Revision Application is
is devoid of merits and is liable to be dismissed. Accordingly, it is
dismissed. Notice is discharged. No order as to cost.

(A. P. THAKER, J)

FURTHER ORDER

At this stage, Mr.Divyang Ramani, learned advocate for the
applicants requests to stay the operation of this order for four
weeks.

Considering the facts of the case, the request is declined.

(A. P. THAKER, J)
V.R. PANCHAL

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