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Vinubhai Vallabhbhai Makwana vs Rajubhai Dayabhai Sutariya on 23 January, 2019

C/FA/1254/2015 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/FIRST APPEAL NO. 1254 of 2015

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE R.M.CHHAYA

and

HONOURABLE MR.JUSTICE V. B. MAYANI

1 Whether Reporters of Local Papers may be allowed to
see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the
judgment ?

4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?

VINUBHAI VALLABHBHAI MAKWANA
Versus
RAJUBHAI DAYABHAI SUTARIYA

Appearance:
MR NIPUL GONDALIA for MR Z L KHAN(7966) for the PETITIONER(s) No.
1,2,3
MR.DIPAK B PATEL(3744) for the RESPONDENT(s) No. 1

CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
and
HONOURABLE MR.JUSTICE V. B. MAYANI

Date : 23/01/2019
ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE R.M.CHHAYA)

Page 1 of 8
C/FA/1254/2015 JUDGMENT

1. Being aggrieved by and feeling dissatisfied
with the judgment and order dated 24.9.2014
passed by the Principal Judge, Family Court,
Bhavnagar in Miscellaneous Civil Application
no.9 of 2014, the appellants ­ original
opponents have preferred this appeal under
Section 19 of the Family Courts Act, 1984.

2. Heard Mr. Nipul Gondalia, learned advocate for
Mr. Z.L. Khan, learned advocate for the
appellants ­ original opponents and Mr. Dipak
B. Patel, learned advocate for the respondent­
original applicant.

3. Following noteworthy facts emerge from the
record of the appeal:­

That, the respondent herein married
Tejalben daughter of one Bharatbhai
Parsottambhai Makwana and out of the said
wedlock, one son, named, Viral was born on
17.6.2012. By an application as provided under
Sections 7 and 8 of the Guardians and Wards
Act, 1890, the respondent ­ original applicant
approached the Family Court and contended that
the respondent herein ­ original applicant is
the natural guardian and father of the child –
Viral and prayed for his custody. Record also

Page 2 of 8
C/FA/1254/2015 JUDGMENT

indicates that the wife of the original
applicant – Tejalben has expired and son-Viral
went with the appellants ­ original opponents
after the death rituals were over and the
application was filed as the custody of the
child was not given back to the original
applicant – father of the child.

4. Record indicates that on the said application
being filed by the respondent – original
applicant, the Family Court, Bhavnagar issued
notice to the appellants ­ original opponents.
Paper­book indicates that the said notice was
sent by RPAD by the Family Court, Bhavnagar to
the appellants ­ original opponents. However,
it was refused. The Family Court proceeded
further on merits and passed the impugned
order.

5. Mr. Gondalia, learned advocate for the
appellants has taken this Court through the
factual matrix arising out of this appeal and
has submitted that no opportunity was given to
the appellants – original opponents and
straightway the order was passed. It is
further contended that the Family Court has
wrongly believed the case of the respondent ­
original applicant and considering the say of
the original applicant ­ respondent herein, as

Page 3 of 8
C/FA/1254/2015 JUDGMENT

gospel truth, has passed the impugned order.
Mr. Gondalia therefore submitted that the
appeal deserves to be allowed and the custody
of the minor ­ Viral deserves to be given to
the appellants ­ original opponents who are
their grand parents. Mr. Gondalia also lastly
contended that only because the respondent ­
original applicant is father and a natural
guardian, it does not mean that the custody of
the minor child should always be given to the
father. On the aforesaid grounds, it is
therefore contended that the appeal may be
allowed.

6. Per contra, Mr. Dipak Patel, learned advocate
for the respondent ­ original applicant has
supported the impugned order. Relying upon the
copy of the envelop which is forming part of
the record, Mr. Patel contended that the
appellants, having refused the service, cannot
contend that the order passed is an ex­parte
order. It is further contended that the
appellants herein are not the direct relatives
of the deceased wife of the respondent and the
Family Court has considered the aspect of
paramount interest of the child and therefore,
no interference is called for in exercise of
appellate jurisdiction under Section 19 of the
Family Courts Act, 1984. Mr. Patel therefore

Page 4 of 8
C/FA/1254/2015 JUDGMENT

submitted that the appeal, even otherwise, is
without any merit and the same deserves to be
dismissed.

7. No other or further contentions and/or
submissions are made by the learned advocates
appearing for the respective parties.

8. We have perused the paper book and the
original record and proceedings. Upon
considering the submissions made and on
perusal of the impugned order, it clearly
transpires that the respondent herein married
Tejalben and the minor – Viral was born out of
their wedlock on 17.6.2012. It is a matter of
record that wife of the respondent herein has
expired and the respondent herein is the
natural guardian being the father of minor
Viral. Having refused the service of the
notice/summons issued by the Family Court and
having preferred not to participate in the
proceedings before the Family Court, it is not
open for the appellants now to contend before
this Court in appeal that they were not given
any opportunity. On the contrary, the record
establishes that they have not availed the
opportunity otherwise granted by the Family
Court. On perusal of the record and
proceedings as well as considering the

Page 5 of 8
C/FA/1254/2015 JUDGMENT

deposition of the respondent, we find that the
Family Court has rightly considered the aspect
of welfare of the minor child and paramount
consideration of the minor child is properly
considered and the Family Court has rightly
come to the conclusion that the respondent­
original applicant being father and natural
guardian is entitled to custody of the minor
child. Rojkam indicates that as many as 8
adjournments were granted by the Family Court
before passing the impugned order, coupled
with the fact that the notice was already sent
which was refused by the appellants herein and
therefore, it cannot be said that the
opportunity was not given by the Family Court.
Even considering the statement made in the
memo of appeal as well as considering the
examination­in­chief of the respondent­
original applicant at Exh.10, it reveals that
mental state of affairs of the father­in­law
of the respondent ­ original applicant is not
proper. It further reveals that appellants
no.1 and 2 are not the real parents of the
wife of the original applicant ­ respondent
herein and similarly appellant no.3 is the
grandmother of the deceased wife of the
original applicant ­ respondent herein. The
age of the minor – Viral even as on date, when
the matter is being considered by this Court,
is hardly six and a half years and considering

Page 6 of 8
C/FA/1254/2015 JUDGMENT

the evidence on record, we are of the opinion
that the paramount interest of the minor
child-Viral would be maintained if he stays
with the respondent – original applicant – his
father, in addition to the fact that the
respondent ­ original applicant is the natural
guardian of the minor – Viral.

9. The learned advocate for the appellants has
not been even remotely or orally on the basis
of the record of this appeal, is able to show
that the respondent is not a fit person to
have the custody of the minor child – Viral.
There is nothing on record even otherwise to
show that the respondent ­ original applicant
is in any manner involved in any other offence
or that has no means to maintain the child. On
the contrary, in his deposition which is not
controverted, it reveals that as father, he
intends to see that his child minor – Viral
studies in English medium school. Considering
all these, we are of the opinion that welfare
of the child lies in his staying with his
father – respondent herein ­ original
applicant.

10. In totality of facts therefore, we find no
merit in this appeal. The Family Court has
committed no error in allowing the

Page 7 of 8
C/FA/1254/2015 JUDGMENT

application. No interference is called for.

The appeal is liable to be dismissed and is
hereby dismissed. Parties to bear their own
costs. Registry shall transmit the original
record and proceedings back to the Family
Court forthwith.

(R.M.CHHAYA, J)

(V. B. MAYANI, J)
mrp

Page 8 of 8

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