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Judgments of Supreme Court of India and High Courts

Vishal Doshi vs Rachna Doshi on 2 May, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

Writ Petition NO. 5046 OF 2019

Vishal Doshi …Petitioner
Versus
Rachna Doshi …Respondent
….
Mr. Vineet Naik, Senior Advocate a/w. Yusuf Iqbal Yusuf, Taubon Irani,
Kalpana Ashar, Neville Majra, Shaista Pathan, Gyanika kochar i/b. Y A
Legal, Advocate for the Petitioner.

Mr. Ramesh Lalwani a/w. Sadhna Jaykar (Lalwani), Shaanal Shah, Anand
Damle, Ameya Chaudhari, J.K. Shah, Anagha Nimbkar i/b. Mehta
Padamsey, Advocate for the Respondent.
….

CORAM : R. G. KETKAR, J.

RESERVED ON : 16th APRIL, 2019
PRONOUNCED ON: 02nd MAY, 2019
ORDER :

1. Heard Mr. Vineet Naik, learned Senior Counsel for the

petitioner and Mr. Ramesh Lalwani, learned Counsel for the respondent,

at length.

2. By this Petition under SectionArticle 227 of the Constitution of India,

the petitioner Vishal Doshi (for short, ‘Vishal’) has challenged the

judgment and order dated 29.3.2019 passed by the learned Judge, Family

Court No.3, Mumbai below Exhibits-5 and 17 in Petition No.A-532/2019.

By that order, the learned trial Judge allowed the applications and

directed Vishal to bring back both the children to the premises viz. 162,

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Neelamber, 16th floor, Peddar Road, Mumbai – 400 026 (for short,

‘matrimonial home’) on or before 1.4.2019. The learned trial Judge

directed Vishal and respondent Rachna Doshi (for short, ‘Rachna’) to

produce their children’s passport on record till further order. Both are

restrained from taking the children out of the jurisdiction of the Family

Court, Mumbai without Court’s permission.

3. Vishal has instituted petition on 1.3.2019 under Section 13(1)

(i) and (ia) of SectionHindu Marriage Act, 1955 (for short, ‘Act’) for dissolution

of marriage solemnized on 28.12.2003. Vishal has claimed custody of

Aman aged about nine years and Aria aged about five years under

Sections 7, Section17(1) (2), 25 of the Guardians and SectionWards Act, 1890 read

with Section 7(G) of the Family Courts Act, 1984. Vishal has also claimed

permanent and temporary injunctions under Sections 37 and 38 of the

Specific Reliefs Act, 1963 read with Order XXXIX Rule 1(a) of Code of

Civil Procedure, 1908 (for short, ‘C.P.C.’).

4. On the same day, Vishal filed application Exhibit-5 inter alia

for permanent injunction restraining Rachna from removing the children

out of the jurisdiction of the Family Court; to pass an order of status quo

to be maintained till the hearing and final disposal of the application.

5. The learned trial Judge was moved urgently on 2.3.2019 for

interim relief. On 2.3.2019, the learned trial Judge passed following

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order:

” O
Read application and heard learned counsel for
husband. To avoid complications, respondent No.1 is
directed to maintain status quo in respect of children
as on today by the time till further order on next
date.

Sd/- 2.3.19″

6. On 7.3.2019, Sohil Premkumar Kothari, cousin of Rachna

instituted Criminal Writ Petition No.1266/2019 in this Court against :

i. Respondent No.1 – State of Maharashtra, through Public Prosecutor;
ii. Respondent No.2 – Senior Police Inspector, Gamdevi Police Station,
Gamdevi, Mumbai;

iii. Respondent No.3 – Vishal;

iv. Respondent No.4 – Shreyas Kirtilal Doshi (for short, ‘Shreyas’),
father-in-law of Rachna;

v. Respondent No.5 – Geeta Shreyas Doshi (for short, ‘Geeta’), mother-

in-law of Rachna;

vi. Respondent No.6 – Kirtilal Doshi (for short, ‘Kirtilal’), grand-father-

in-law of Rachna;

vii. Respondent No.7 – Suman Kirtilal Doshi (for short, ‘Suman’), grand-

mother-in-law of Rachna; and
viii. Respondent No.8 – Ranjan Kothari, sister of respondent No.7
Suman;

praying for writ of habeas corpus or any other appropriate
writ or direction to the respondents to produce Rachna, Aman and
Aria and direct that they be allowed to reside peacefully without any
hindrance at the shared/matrimonial home without deprivation of
basic human rights; direct respondent No.2 to provide police
protection to Rachna, Aman and Aria.

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7. On 11.3.2019, Division Bench of this Court directed the

petitioner to implead Rachna as respondent No.9 during the course of the

day and issued notice to the newly added respondent No.9 returnable on

12.3.2019. Rachna was given liberty to remain present in the course of

the proceedings and to file affidavit in reply if she so desires.

8. On 12.3.2019, Division Bench disposed of the Writ Petition. In

paragraph-6, Division Bench reproduced the order dated 2.3.2019 passed

by the learned Judge of Family Court below Exhibit-5 in Petition No.A-532

of 2019. In paragraph-8, it was noted that presently Rachna is residing in

her matrimonial house. The Court directed respondents No.4 and 5

(Shreyas Geeta) to hand over a copy of key of the main entrance to

Rachna by the evening of that day in order to enable her entry and exit

from the house as per her need.

9. In paragraph-9, this Court noted the order dated 2.3.2019

passed by the learned Judge of Family Court below Exhibit-5 and

observed that in view thereof the Court is not entering into the issue about

production of minor children except directing that Vishal shall be

responsible for two children until the Family Court decides the issue of

custody finally. Rachna was given liberty to take such steps as she may be

advised regarding the custody of the children before the learned Judge of

the Family Court.

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10. In paragraph-11, this Court observed that none of the

observations made in the order shall have any impact on the pending

proceedings initiated by Vishal before the Family Court as well as the

proceedings initiated by respondents No.4 5 before the appropriate

forum and the said Courts/Tribunals should arrive at such conclusion as

per evidence produced before them. Reference made to the affidavit filed

by Rachna was only for the purpose of disposal of the Writ Petition of

habeas corpus.

11. On 26.3.2019, the matter was moved for modification of the

order dated 12.3.2019 and in particular the word “finally” recorded in

paragraph-9 of that order. The Division Bench felt that no modification

was required to be made in view of what has been stated in paragraph-11

of said order and observed that the Family Court is at liberty to proceed

with deciding the custody both interim and finally in accordance with law.

12. In the meanwhile on 18.3.2019, Rachna filed application

Exhibit-17 inter alia praying for direction to Vishal to forthwith restore the

children in their matrimonial home; pending the hearing of the

application Vishal be directed to forthwith place on record the

address/whereabouts of the children; permit Rachna to have free access to

the children Aman and Aria and be allowed to continue to perform her

motherly duties without any hurdles or hindrance from Vishal, his agents,

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servants, relatives and representatives; permit her to approach the

children’s school, namely, The Cathedral John Connon School to get her

name and contact details restored in the school records in order to receive

all communications from the school. Vishal filed reply opposing

application.

13. After hearing both sides, the learned trial Judge has allowed

the applications on 29.3.2019, as indicated earlier. It is against this order,

Vishal has instituted present petition.

14. In support of this Petition, Mr. Naik has taken me through the

cause title of the petition filed by Vishal against Rachna. Mr. Naik

submitted that the address of Rachna is shown as matrimonial home as

also address at CCI Chambers, Centre Wing, 2nd floor, Flat No.19, Dinshaw

Vacha Road, Churchgate, where co-respondent Mikhail Dhaul (for short,

‘Mikhail’) is residing. Mikhail’s son Ruhaan and Aman are classmates.

Rachna is residing at CCI Chambers. Mr. Naik has also taken me through

the passages in the Divorce Petition. In particular, he invited my attention

to paragraphs-20, 26, 31 and 32 to contend that Rachna is having extra-

marital relations with Mikhail. He invited my attention to paragraph-33

where Vishal has referred to the Memorandum of Understanding (for

short, ‘M.O.U.’) entered into between the parties on 8.9.2018 (wrongly

typed as 4.9.2018).

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15. Mr. Naik submitted that Vishal has sought dissolution of

marriage under Section 13(1)(i) (ia) of the Act on the ground of

adultery and cruelty. He invited my attention to the application at

Exhibit-5 dated 1.3.2019 filed by Vishal for injunction. In paragraph-1

thereof, Vishal contended that he has instituted petition for dissolution of

marriage and permanent custody and guardianship of his minor children

who are presently in his exclusive care and custody.

16. In paragraph-3, Vishal asserted that he called upon Rachna to

sort out the differences / matter amicably in order to avoid any adverse

impact on the children keeping in mind the best interest and welfare of

the minor children. Instead of considering the proposal for an amicable

settlement, Rachna kept escalating her demands and further threatening

Vishal to give into her demands failing which she threatened to abscond

with the minor children. Vishal lodged police complaint on 28.2.2019

against Rachna lest she acts upon her threats and take away / abscond

with the children.

17. Mr. Naik submitted that because of the apprehension that

Rachna will abscond with minor children, application Exhibit-5 was

urgently moved before the learned in-charge Judge of the Family Court.

By order dated 2.3.2019, the learned trial Judge directed Rachna to

maintain status quo in respect of children as of that date till further orders

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on the next date. He submitted that the fact that children are in the sole

and exclusive care and custody of Vishal was specifically brought to the

notice of the learned trial Judge. The order dated 2.3.2019 was

communicated to Rachna on 3.3.2019 by email (Exhibit-F, pages 175-

176). Instead of taking urgent steps for vacating the order of status quo,

Rachna got her cousin to institute habeas corpus petition before this

Court. This Court noted the order dated 2.3.2019 passed by the Family

Court. After hearing both sides on 12.3.2019, Division Bench of this Court

specifically held that Vishal would be responsible for two children until

the Family Court decides the issue of custody finally. Thus, the Division

did not pass any order as regards custody of the children. He submitted

that the children are in his custody and Vishal is responsible for the

children until orders, interim custody or final custody, are passed by the

Family Court in application filed by Rachna. Till date, Rachna has not

filed any proceedings interim or final for custody of minor children.

18. Mr. Naik submitted that as the children were having spring

vacations, Vishal decided to take them to Tadoba National Park,

Chandrapur from 1.3.2019 to 11.3.2019. Rachna did not accompany

Vishal and she left Mumbai at 1:00 p.m. on 1.3.2019. Mr. Naik submitted

that the premises at 162, Neelamber does not belong to Vishal. It solely

belongs to his mother, grand-mother and a trust created for the benefit of

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Vishal’s mentally challenged uncle i.e. Anuj Doshi Property Trust. Rachna

is residing with co-respondent at CCI Chambers, Churchgate. He

submitted that Vishal’s mother Geeta instituted a proceeding seeking

eviction of Rachna from her house before the Senior Citizens Tribunal and

the summons of hearing on 31.3.2019 was issued to her. He relied upon

the decision in S.R. Batra Vs. Smt. Taruna Batra, (2007) 3 SCC 169 to

contend that Rachna cannot claim any right in the house which belongs

to her mother-in-law and same is not a ‘shared household’. The learned

trial Judge, therefore, was not justified in granting relief claimed by

Rachna in connection with parental house of Vishal, more so when they

are not party before the Family Court.

19. Mr. Naik submitted that after returning from Chandrapur,

Vishal is residing along with minor children in a 3 BHK apartment. Vishal

has also arranged for the cook and other servants. In short, he submitted

that the minor children are well taken care of by Vishal while staying in

the service apartment of Indian Hotels Company Ltd..

20. Mr. Naik invited my attention to the report dated 18.3.2019

made by the Marriage Counselor, Family Court, Mumbai recording therein

that both the parties had agreed for interim children access in the

Children Complex, Family Court, Mumbai amicably on 1st, 3rd and 5th

Saturday. Both the parties were given time to decide some more days of

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interim children access on week days. Rachna did not come back to

finalize the consent terms for interim children access and so the

settlement regarding interim children access could not be worked out

between the parties.

21. Mr. Naik submitted that Kirtilal and others preferred S.L.P.

(Cri.) No.3279/2019 before the Apex Court challenging the order dated

12.3.2019 passed by the Division Bench in Criminal Writ Petition

No.1266/2019. By order dated 15.4.2019, the Apex Court stayed the

directions of High Court in paragraph-8 of the order dated 12.3.2019.

22. Mr. Naik submitted that in view of the serious allegations of

adultery, it will not be in the interest of minor children to reside along

with Rachna in the matrimonial home. Even otherwise, having regard to

the strained relations between Rachna on one hand and Vishal and his

family members on the other, it is not desirable that Rachna resides along

with family members in the matrimonial home.

23. Mr. Naik submitted that the learned trial Judge committed

serious error in rejecting the submission recorded in paragraph-7 of the

impugned order. He submitted that application Exhibit-16 is filed for

verification of C.D. The learned trial Judge should have directed the

Marriage Counselor to hear the C.D. in presence of the parties and should

have called report of Forensic Laboratory, Kalina. Said submission was,

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however, rejected on the ground that the Court is not going into the

details of merits of rival allegations and at this juncture, the only issue

about children’s interest and welfare is required to be considered which

has nothing to do with the prayer in application Exhibit-16. He submitted

that having regard to the serious allegations of adultery levelled against

Rachna and co-respondent, it is not in the interest and welfare of the

children that Rachna resides along with them.

24. Mr. Naik invited my attention to various complaints filed

against Rachna. The details of the complaints are as under :

i. On 31.10.2018, Geeta filed complaint against Vishal and Rachna
with the Gamdevi Police Station about the incident of 30.10.2018.
ii. On the same day i.e. 31.10.2018, Vishal lodged complaint against
Rachna with Gamdevi Police Station as she failed to return the
jewelery that was taken from Aria Doshi Trust despite several
demands from the Trustees.

iii. On 26.12.2018, Vishal filed extortion complaint with Joint
Commissioner of Police and Anti-Extortion Cell against Rachna and
her lawyer.

iv. On 28.2.2019, Vishal made last attempt to reconcile with Rachna.

Instead of settling the matter she threatened to abscond to
Belgium with the children if her demands were not met. Vishal,
therefore, filed complaint with Gamdevi Police Station.
v. On 2.3.2019, Vishal hired the service of private security agency
lest Rachna was advised to return to the house and/or harass the

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family members especially in view of the fact that Vishal had
already left the house.

vi. On 5.3.2019, Shreyas filed complaint with (1) Hon’ble Chief
Minister of Maharashtra, (2) Police Commissioner of Mumbai, (3)
Joint Commissioner of Police, (4) Additional Commissioner of
Police, (5) Deputy Commissioner of Police, (6) Assistant
Commissioner of Police, (7) Senior Inspector of Police, requesting
them not to intervene on behalf of Rachna and also to provide
them with adequate protection.

vii. On the same day i.e. 5.3.2019, Shreyas filed a complaint with
Gamdevi Police Station because Rachna had called over her sister
to further harass them.

viii. On 6.3.2019, Shreyas filed a complaint with Gamdevi Police
Station since Rachna had brainwashed the servants against the
Doshi family and had poured oil on the floor intending that they
slip.

ix. On 7.3.2019, Shreyas filed a complaint with Gamdevi Police
Station since Rachna had locked his mentally challenged brother
in his room and had refused to give the key for over an hour.
x. On the same day i.e. 7.3.2019, Geeta filed a complaint with the
Senior Citizens Tribunal for evicting Rachna. Notice has been
issued and served upon Rachna and the matter was posted for
hearing on 31.5.2019.

xi. On 16.3.2019, Vishal filed complaint with (1) Hon’ble Chief
Minister of Maharashtra, (2) Police Commissioner of Mumbai, (3)
Joint Commissioner of Police, (4) Additional Commissioner of
Police, (5) Deputy Commissioner of Police, (6) Assistant

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Commissioner of Police, (7) Senior Inspector of Police reporting
the incident of 13.3.2019.

xii. On 26.3.2019, Geeta made complaint against Rachna with
National Women’s Commission.

xiii. On 28.3.2019, Suman filed a complaint with Gamdevi Police
Station against Rachna.

xiv. On 30.3.2019, Shreyas filed a complaint with Gamdevi Police
Station informing them he does not want Vishal or the children to
come back.

xv. On 1.4.2019, Vishal filed complaint with (1) Hon’ble Chief
Minister of Maharashtra, (2) Police Commissioner of Mumbai, (3)
Joint Commissioner of Police, (4) Additional Commissioner of
Police, (5) Deputy Commissioner of Police, (6) Assistant
Commissioner of Police, and (7) Senior Inspector of Police, seeking
protection for his children against Rachna lest she do something
that would frustrate the order of this Court dated 12.3.2019.
xvi. On the same day i.e. 1.4.2019 Shreyas filed complaint with (1)
Police Commissioner of Mumbai, (2) Additional Commissioner of
Police, (3) Deputy Commissioner of Police, (4) Assistant
Commissioner of Police, and (5) Senior Inspector of Police about
the bogus complaint filed by Rachna to harass them.
xvii. On 3.4.2019, on behalf of Shreyas a complaint was filed with
Gamdevi Police Station as Rachna called two unknown persons
and her uncle to the house. The said persons began fidgeting with
the wiring of the house. When Geeta confronted them, they fled.
Building security detained Rachna and her uncle.

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25. Mr. Naik submitted that on 31.3.2019, Rachna filed a false

complaint under Section 354-D Indian Penal Code, 1860 (for short,

'SectionI.P.C.') for stalking through electronic means against Doshi family.

26. Relying upon various complaints, he submitted that the

atmosphere in the matrimonial home is highly tense and polluted. If the

impugned order is allowed to stand, it will enable Rachna and Children to

stay in the matrimonial home which will further create complications and

untoward scenes and lead to untoward incidents.

27. Mr. Naik further submitted that while passing the impugned

order, the learned trial Judge has not considered whether the welfare of

the children lies with their remaining with Vishal or with Rachna. Having

regard to the serious allegations of adultery against Rachna it is not

conducive that she resides along with children that too in the

matrimonial home.

28. He submitted that Vishal is ready and willing to find out a

suitable alternate accommodation in the same vicinity where the

matrimonial home is situate so as to enable Rachna to stay there. Vishal

will abide by the order of access of Rachna. As he is in exclusive custody

of the children and Rachna has not filed any proceedings for custody of

the children, this interim arrangement will be in the best interests of the

children. He, therefore, submitted that the Petition requires consideration.

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29. On the other hand, Mr. Lalwani supported the impugned

order. He submitted that Vishal has alleged that Rachna is having extra-

marital relations with co-respondent Mikhail. He submitted that the

instances alleged in the Divorce Petition are from 13.8.2018 to 31.8.2018.

It is, however, not in dispute that on 8.9.2018, M.O.U. was made between

Rachna and Vishal. Recital-C of the M.O.U. records that Rachna and

Vishal have had certain differences in their marriage leading them to

jointly consider either of these two options : (i) reconciliation; or (ii)

divorce by mutual consent. Recital-D records that until the parties

consider and finalize their further course of action with respect to their

marriage, they are desirous of entering into M.O.U. so as to set out the

terms and conditions with respect to their duties and responsibilities

towards each other as well as their minor children as more particularly set

out therein. Recital-E records that the parties have mutually decided that

the M.O.U. is valid for a period of 30 days from the date of its execution.

The parties are at liberty to extend the M.O.U. for an additional period of

30 days or any other convenient period if the same is jointly and mutually

agreed to by both the parties in writing.

30. By clause-1, the parties agreed that both the minor children

will continue to reside at the matrimonial home exclusively and at no

other place so as to ensure that their daily routine is maintained and their

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school and extracurricular activities schedule is not disrupted.

31. By clause-2, it was agreed that Rachna will continue to reside

at matrimonial home until such time as the M.O.U. is in force. The parties

jointly agreed that Rachna will move out of the bedroom she shared with

Vishal and will reside in the children's bed-room. In the event Rachna visits

her parents in Antwerp, Belgium, for a short visit or any other place for

that matter, Vishal agreed not to disturb Rachna's right to reside in the

matrimonial home on Rachna's return from such visit.

32. Clause-3 recorded that it was agreed that Rachna will

continue to peacefully utilize all the home facilities, amenities and

resources, including cars etc. just as she has been doing since her marriage

to Vishal and neither Vishal nor his parents or any of his family members

shall in any way harass Rachna or interfere with her life or her use of the

home resources in any manner. It was further agreed that Rachna shall be

polite and respectful at all times with the children, Vishal, his parents

and/or any of his family members.

33. Clause-4 recorded that it was agreed that Rachna and Vishal

will both continue to have joint custody of their children and they shall

both continue their parental duties towards the children, which include

participating in school related activities, accompanying the children to

extra-curricular classes, birthday parties, play dates, outings, etc. without

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any interference / obstruction from each other, Vishal's parents or any of

his family members. All important decisions regarding their minor

children shall be taken by Rachna and Vishal jointly. As per clause-2 in the

event Rachna visits her parents in Antwerp, Belgium, for a short visit or

any other place for that matter, her joint custody of their minor children

shall continue and Vishal shall not disturb the same.

34. Clause-6 recorded that Vishal shall continue to provide for

Rachna's daily personal expenses by giving her a pre-determined amount

per month which has been agreed to by both the parties jointly. It was

agreed that this pre-determined amount shall be paid by Vishal to Rachna

on the execution of M.O.U.

35. Mr. Lalwani submitted that after execution of M.O.U. till

1.3.2019, Rachna was residing in the matrimonial home and no

extraordinary untoward incident took place between execution of M.O.U.

on 8.9.2018 and 1.3.2019. He submitted that the children were having

Spring vacation and it was mutually decided that Vishal takes children to

Tadoba National Park, Chandrapur from 1.3.2019 to 11.3.2019. Rachna

did not accompany Vishal and she left Mumbai at 1:00 p.m on 1.3.2019.

He submitted that the petition for divorce is filed on 1.3.2019 and

application Exhibit-5 is filed on the same day. Vishal left with Children to

Chandrapur on 1.3.2019. The learned Judge of Family Court was moved

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urgently for ad-interim relief on 2.3.2019. In the application, a false

statement is made that the children are presently in his exclusive care and

custody. He submitted that the children are in joint custody of Vishal and

Rachna and are staying in matrimonial home along with mother, father,

grand-mother and grand-father of Vishal. In other words, the children are

residing in joint family. He submitted that while obtaining the order on

2.3.2019, neither Vishal nor his Advocate brought to the notice of the

learned trial Judge that the children have already left along with Vishal

for Chandrapur on 1.3.2019. Thus, there was remote possibility of Rachna

taking away/absconding with the children. He further submitted that

Vishal has interpreted the order of the trial Court dated 2.3.2019 to suit

his convenience. Instead of bringing children back to matrimonial home,

he moved along with children to the service apartment. The learned trial

Judge directed Rachna to maintain status quo in respect of children as on

that date. The children were admittedly in company of Vishal and had

proceeded to Chandrapur on 1.3.2019. Thus, in short Vishal obtained

order on 2.3.2019 by misrepresentation and by practicing fraud upon the

Court.

36. Mr. Lalwani submitted that in paragraph-5 the learned trial

Judge rightly observed that while passing ad-interim order on 2.3.2019, it

was well within the knowledge of Vishal and his Advocate that children

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were with him at Tadoba National Park for vacation. As such after

returning from vacation trip, Vishal and children were supposed to return

to the matrimonial home where they were residing while leaving for the

vacation trip. Vishal has suitably misrepresented the order of status quo

and directly started residing in another premises. In fact in the

proceedings the Court has not specifically, either temporarily or

permanently, granted custody of children in favour of either of the parties.

The Court directed Rachna to maintain status quo and it has to be

interpreted in the light of the relief sought in the application Exhibit-5 not

to remove the children out of the jurisdiction of the Court. Vishal has taken

advantage of the order of status quo and withdrawn the children from

not only Rachna's company but also from the company of other family

members residing in the matrimonial home.

37. Mr. Lalwani submitted that the contention of Vishal that

Rachna is residing at CCI Chambers along with co-respondent and that the

premises at '162, Neelamber' do not constitute shared / matrimonial

home, are wholly misconceived. He submitted that no material is

produced to substantiate that Rachna is residing at CCI Chambers. By mere

describing address of CCI Chambers in cause title does not mean that she

is actually residing there. He submitted that it is an admitted position as

also is evident from the Divorce Petition that the marriage between the

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parties was solemnized on 28.12.2003. Son Aman is born on 21.2.2010

and daughter Aria is born on 5.1.2014. Vishal himself claims that the

children are residing with him in the secure joint family set up and have

enjoyed the love and attention of all the family members where they are

being brought up and inculcated with good morals and values. Post

marriage the parties resided at the matrimonial home. Even as per the

M.O.U. dated 8.9.2018, it was agreed between the parties that both the

minor children will continue to reside at the matrimonial home exclusively

and at no other place so as to ensure that their daily routine is maintained

and their school and extracurricular activities schedule is not disrupted. It

was also agreed that Rachna will continue to reside at matrimonial home.

Rachna will be provided all the home facilities, amenities and resources.

However, they have been denied to Rachna. The parties also agreed that

they will have joint custody of minor children. He submitted that because

of the financial crisis the matrimonial home is recently transferred in the

names of Geeta, Suman and the Trust. He submitted that by the impugned

order, the learned trial Judge has merely directed Vishal to bring back the

children to matrimonial home. He submitted that the learned trial Judge

rightly observed in paragraph-7 that the allegations of adultery made by

Vishal are required to be substantiated by adducing evidence and at this

stage this issue cannot be gone into.

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38. Mr. Lalwani submitted that though Vishal is giving much

emphasis on application Exhibit-16 for verification of C.D. and seeking

direction that the Marriage Counselor should hear C.D. in the presence of

the parties and also for calling report from Forensic Laboratory, Kalina, till

today the copy of C.D. is not furnished to Rachna so as to enable her to

deal with the application. The learned trial Judge was, therefore, justified

in observing that he found no substance in the prayer made by Vishal

while considering the issue of interest and welfare of the children.

39. Mr. Lalwani submitted that the reliance placed on the

complaints lodged by Vishal and his family members are pending and as

on date no adverse order is passed against Rachna. The complaints are

filed solely with a view to making out a ground for driving out Rachna

from the matrimonial home.

40. Mr. Lalwani submitted that Kirtilal and others have challenged

the order dated 12.3.2019 passed by the Division Bench of this Court in

Criminal Writ Petition No.1266/2019 by filing S.L.P. in Apex Court.

However, on the same day i.e. 12.3.2019, Shreyas addressed a letter to

Rachna handing over key of the matrimonial home to her. He submitted

that Rachna is not served with the proceedings of S.L.P. and is not aware

whether this fact was brought to the notice of the Apex Court. Rachna is

also not aware as to whether the order impugned in this Petition was

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brought to the notice of the Apex Court. He submitted that as the order

dated 12.3.2019 passed by the Division Bench of this Court in Criminal

Writ Petition No.1266/2019 is implemented and in fact Rachna is residing

in the matrimonial home, the stay granted by the Apex Court, with respect,

is inconsequential. Mr. Lalwani, on instructions, further submitted that in

the entire S.L.P. the petitioners therein did not refer to the letter dated

12.3.2019 addressed by Shreyas to Rachna handing over key of the

matrimonial home to her. That apart, they also did not refer to the

impugned order dated 29.3.2019 passed by the Family Court. He

submitted that the submission was made before the Apex Court that

Rachna is residing elsewhere and on that basis exparte ad-inteirm order

was obtained. Mr. Lalwani, on instructions, submitted that first

compilation of additional documents was submitted by the petitioners

therein before the Apex Court on 25.4.2019. The second compilation of

additional documents was submitted by the petitioners therein before the

Apex Court on 30.4.2019 which contains the letter dated 12.3.2019. The

impugned order is, however, not filed before the Apex Court.

41. Lastly, Mr. Lalwani submitted that the contention of Vishal

that as serious allegations of adultery are levelled against Rachna it will

not be in the interest of children is concerned, Vishal is proceeding on the

premise that the said contentions are either admitted by Rachna or have

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been proved by Vishal by adducing cogent evidence. Rachna stoutly

denies said allegations. He, therefore, submitted that no case is made out

for interfering with the impugned order.

42. I have considered the rival submissions advanced by the

learned Counsel appearing for the parties. I have also perused the material

on record. Following facts are not in dispute :

i. The marriage between Vishal and Rachna was solemnized on
28.12.2003.

ii.     Son Aman is born on 21.2.2010.

iii. Daughter Aria is born on 5.1.2014.

iv. In paragraph-4 of Divorce Petition, Vishal claims that his family

comprises of his father Shreyas, his mother, Geeta, his uncle who is
mentally challenged, his grand-father Kirtilal and his grand-mother
Suman. Vishal further claims that the children have been with him
in the secure joint family set up and have enjoyed the love and
attention of all the family members where they are being brought
up and inculcated with good morals and values.

v. Divorce Petition is instituted on 1.3.2019 under Section 13(1)(i) and
(ia) of the Act. Along with Divorce Petition, Vishal has filed
application at Exhibit-5 on 1.3.2019.

vi. In the divorce petition, Vishal has alleged the instances of adultery
covering the period of July and August, 2018.

vii. The parties have entered into M.O.U. on 8.9.2018. Clauses-1, 2, 3

and 4 of M.O.U. read thus :

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"1. It is agreed that both the minor children will continue to
reside at their home at 161, Neelambar, 37, Dr.
Gopalrao Deshmukh Marg, Peddar Road, Mumbai 400
026 exclusively and at no other place, so as to ensure
that their daily routine is maintained and their school
and extracurricular activities schedule is not disrupted.

2. It is agreed that Rachna will also continue to reside at
161, Neelambar, 37, Dr. Gopalrao Deshmukh Marg,
Peddar Road, Mumbai 400 026 until such time as this
MOU is in force. However, the Parties jointly agree that
Rachna will move out of the bedroom she shared with
Vishal and will reside in the children's bedroom. In the
event Rachna visits her parents in Antwerp, Belgium, for
a short visit or any other place for that matter, Vishal
agrees not to disturb Rachna's right to reside in the said
matrimonial home on Rachna's return from such visit.

3. It is agreed that Rachna will continue to peacefully
utilize all the home facilities, amenities and resources,
including cars etc. just as she has been doing since her
marriage to Vishal and neither Vishal nor his parents or
any of his family members shall in any way harass
Rachna or interfere with her life or her use of the home
resources in any manner. It is further agreed that
Rachna shall be polite and respectful at all times with
the children, Vishal, his parents and/or any of his family
members.

4. It is agreed that Rachna and Vishal will both continue to
have joint custody of their minor children and they shall
both continue their parental duties towards the children,
which include participating in school related activities,
accompanying the children to extra-curricular classes,
birthday parties, play dates, outings, etc. without any
interference / obstruction from each other, Vishal's
parents or any of his family members. All important
decisions regarding their minor children shall be taken
by Rachna and Vishal jointly. As mentioned in Clause 2
hereinabove, in the event, Rachna visits her parents in
Antwerp, Belgium, for a short visit or any other place for
that matter, her joint custody of their minor children
shall continue and Vishal shall not disturb the same."

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viii. Thus, prima facie notwithstanding serious allegations levelled by

Vishal against Rachna in Divorce Petition, they executed M.O.U. on

8.9.2018 and arrived at interim arrangement. The interim

arrangement prima facie recorded that the minor children will

continue to reside at the matrimonial home exclusively and at no

other place so as to ensure that their daily routine is maintained and

their school and extracurricular activities schedule is not disturbed.

The parties also agreed that Rachna will move out of the bedroom

she shared with Vishal and will reside in the children's bed-room. In

the event Rachna visits her parents in Antwerp, Belgium, for a short

visit or any other place for that matter, Vishal agreed not to disturb

Rachna's right to reside in the matrimonial home on Rachna's return

from such visit. It was further agreed that Rachna will utilize all

the home facilities, amenities and resources, including cars etc. just

as she has been doing since her marriage to Vishal. Neither Vishal

nor his parents or any of his family members shall in any way harass

Rachna or interfere with her life or her use of the home resources in

any manner. It was further agreed that Rachna and Vishal will both

continue to have joint custody of their minor children.

43. It has now come on record that the children were having

Spring vacation. Vishal decided to take them to Tadoba National Park,

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Chandrapur from 1.3.2019 to 11.3.2019. Rachna did not accompany

Vishal and children and left Mumbai at 1:00 p.m. on 1.3.2019. Prima facie

after execution of M.O.U. till filing of Divorce Petition, no untoward

incident is alleged both in Divorce Petition and application for interim

relief at Exhibit-5. In paragraph-1 of the application at Exhibit-5, Vishal

alleged that the children are presently in his exclusive care and custody.

44. On 2.3.2019, application at Exhibit-5 was moved for urgent

relief on the ground that Rachna is likely to take away/abscond with

children. At the time of moving the learned trial Judge for urgent interim

relief, neither Vishal nor his Advocate informed the learned trial Judge that

Vishal had already left Mumbai along with children for Chandrapur on

1.3.2019. In other words, children were not with Rachna after 1:00 p.m.

on 1.3.2019 and were with Vishal. The learned trial Judge was, however,

given impression that Rachna was likely to take away/abscond with

children. In fact, it was impossible for Rachna to take away children when

they were in the company of Vishal. When Vishal was moving the learned

trial Judge for urgent ad-interim relief on 2.3.2019, it was expected from

him and also his Advocate to appraise the learned trial Judge about

Vishal's visit to Chandrapur. That apart, when Vishal had already left with

the children on 1.3.2019 for Chandrapur, there was absolutely no

necessity for moving the learned trial Judge urgently for obtaining ad-

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interim relief. Prima facie Vishal had obtained ad-interim order by

withholding vital information from the trial Court.

45. After obtaining ad-interim order on 2.3.2019, the order dated

2.3.2019 was communicated to Rachna on 3.3.2019 by email at Exhibit-F,

pages 175-176. After returning from Chandrapur, Vishal did not return to

matrimonial home along with children. In fact the apprehension expressed

by Vishal was taken care of by order dated 2.3.2019. Notwithstanding this

fact, instead of returning to matrimonial home, Vishal shifted to the service

apartment of Indian Hotels Company Ltd..

46. It is material to note that the relief of permanent custody is

claimed by Vishal in his divorce petition. No application for interim

custody is moved either by Vishal or Rachna. Though Vishal and Rachna

are in joint custody of children and are residing in matrimonial home upto

1.3.2019, Vishal claims that he is in exclusive custody of minor children. In

my opinion, the learned trial Judge was perfectly justified in holding that

after returning from vacation from Chandrapur Vishal and children were

supposed to return to matrimonial home where they were residing while

leaving for the vacation trip. Vishal has suitably misinterpreted the order

of status quo and directly started residing in other premises. Vishal has

taken advantage of order of status quo and withdrawn the children from

not only Rachna but also from the company of other family members. The

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order of status quo granted by the learned trial Judge on 2.3.2019 has to

be considered having regard to the prayers made in application Exhibit-5.

Vishal has claimed permanent injunction restraining Rachna from moving

children out of the jurisdiction of Family Court, Mumbai. Vishal himself

had removed the children out of the jurisdiction of the Family Court,

Mumbai by taking them to Chandrapur. The order of status quo claimed by

Vishal is referable to the assertions made in Divorce Petition and

application at Exhibit-5 which unmistakably shows that children are

residing in the matrimonial home.

47. It has come on record that Sohil Premkumar Kothari, the

cousin of Rachna instituted Criminal Writ Petition No.1266/2019 in this

Court. In paragrpah-4 of the order dated 12.3.2019, Rachna narrated

various difficulties faced by her. It was contended that her entry and egress

in the matrimonial house have been substantially curtailed since the main

lock of the house has been changed in the meanwhile and she does not

possess the key for allowing her entry and egress from the house. In view

thereof, the Division Bench passed the following direction in paragraph-8

of that order :

"8. Presently respondent No.9 is residing in her matrimonial
house. Therefore, we direct the respondent Nos.4 and 5 to
hand over a copy of key of the main entrance to the
respondent No.9 by this evening in order to enable her entry
and exit from the house as per her need. The Respondent

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No.9 shall keep in mind and consideration the advanced age
of the respondent Nos.4 and 5 and other family members
residing in the house. Respondent No.9 is requested to
respect their needs and to ensure that no disturbance is
caused to them."

48. It has come on record that by letter dated 12.3.2019, Shreyas,

father of Vishal, handed over key of the matrimonial home to Rachna. The

copy of the S.L.P. is subsequently placed on record. It is, however, not

possible to find out whether the fact of handing over key by Shreyas on

12.3.2019 itself was brought to the notice of the Apex Court. It is also not

possible to find out whether the order impugned in this petition was

brought to the notice of the Apex Court. The fact, however, remains that

Rachna continues to live in the matrimonial home post handing over key

by Shreyas to her on 12.3.2019.

49. Mr. Naik submitted that the premises at '162, Neelamber' does

not constitute shared / matrimonial home. He relied upon the decision in

S.R. Batra's case (supra). It is not possible to accept this submission. I have

already indicated that after solemnization of marriage in the year 2003,

Rachna resided in matrimonial home till 1.3.2019 and after handing over

keys on 12.3.2019. She is residing along with Vishal, his parents and

grand-parents and his uncle. Section 2(s) of the Protection of Women from

SectionDomestic Violence Act, 2005 (for short, 'SectionD.V. Act') defines the expression

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"shared household", which reads thus :

"2. Definitions .-- In this Act, unless the context otherwise
requires,-

(s) "shared household" means a household where the person
aggrieved lives or at any stage has lived in a domestic
relationship either singly or along with the respondent
and includes such a household whether owned or tenanted
either jointly by the aggrieved person and the respondent,
or owned or tenanted by either of them in respect of which
either the aggrieved person or the respondent or both
jointly or singly have any right, title, interest or equity and
includes such a household which may belong to the joint
family of which the respondent is a member, irrespective of
whether the respondent or the aggrieved person has any
right, title or interest in the shared household. "

[emphasis supplied]

50. A perusal of the above extracted definition shows that shared

household means a household where the person aggrieved lives or at any

stage has lived in a domestic relationship either singly or along with the

respondent and includes such a household whether owned or tenanted

either jointly by the aggrieved person and the respondent, or owned or

tenanted by either of them in respect of which either the aggrieved person

or the respondent or both jointly or singly have any right, title, interest or

equity and includes such a household which may belong to the joint family

of which the respondent is a member, irrespective of whether the

respondent or the aggrieved person has any right, title or interest in the

shared household. Thus, Rachna is residing continuously since 2003 till

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date in the matrimonial home excepting few days. Prima facie at this stage

it cannot be said that the premises at '162, Neelamber' is not shared

household / matrimonial home of Rachna. In paragraph-26 of S.R.

Batra's case (supra), the Apex Court observed that the husband and wife

may have lived together in dozens of places e.g. with the husband's father,

husband's paternal grandparents, his maternal parents, uncles, aunts,

brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the

learned counsel for the respondent is accepted, all these houses of the

husband's relatives will be shared households. This is not so in the present

case. In view thereof, the reliance placed by Mr. Naik on the decision of

S.R. Batra's case (supra) does not advance the case of Vishal.

51. Mr. Naik submitted that Rachna is residing at CCI Chambers,

Churchgate along with co-respondent. As against this, Mr. Lalwani

submitted that no material is produced for substantiating that Rachna is

residing at CCI Chambers, Churchgate along with co-respondent. Prima

facie I find merit in this submission. Vishal has merely described the

address of CCI Chambers of Rachna. Prima facie that does not mean that

Rachna is actually residing there.

52. Insofar as the contention that it is not in the interest and

welfare of the children to reside with Rachna in view of serious allegation

is concerned, they are required to be substantiated by adducing evidence.

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It is not in dispute that Vishal has not furnished C.D. to Rachna till date.

Rachna has, therefore, no opportunity to deal with the allegations raised in

application Exhibit-16. In view thereof, no fault can be found with the

findings recorded by the learned trial Judge in paragraph-7 of the

impugned order. At this stage, this cannot be a ground for Vishal to refuse

to bring back the children at matrimonial home. In fact in paragraph-4 of

the Divorce Petition Vishal himself has contended that that his family

comprises of his father Shreyas, his mother, Geeta, his uncle who is

mentally challenged, his grand-father Kirtilal and his grand-mother

Suman. Vishal further claims that the children have been with him in the

secure joint family set up and have enjoyed the love and attention of all

the family members where they are being brought up and inculcated with

good morals and values. It is, therefore, in the best interests of children

that they are brought back to matrimonial home in the company of their

grand-father Shreyas, grand-mother, Geeta, great-grand-father Kirtilal and

great-grand-mother Suman.

53. A perusal of the impugned order shows that in paragraph-4,

the learned trial Judge noted that he had tried to explore the possibility of

amicable settlement so far as the interim relief in application Exhibit-17 is

concerned. During the course of hearing, I suggested that Rachna, without

prejudice to her right and interest to reside in the matrimonial home, will

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shift to 3 BHK premises where presently Vishal and children are staying. As

and when Vishal makes arrangement for alternate accommodation, Rachna

will shift along with children to that place. This arrangement was

suggested as Vishal has expressed reservation for Rachna residing in the

matrimonial home along with his parents and grand-parents. This will

obviate the allegations and counter allegations by the parties. Mr. Naik,

upon instructions, submitted that Vishal is ready and willing to find out

suitable alternate accommodation in the same vicinity where the

matrimonial home is situate so as to enable Rachna to stay there. However

Vishal is not agreeable for Rachna shifting to alternate accommodation

along with children as allegations of adultery are levelled against her.

Thus, at this stage there is no possibility of amicable settlement.

54. Mr. Naik relied upon several complaints filed against Rachna.

As on date, no adverse orders are passed against Rachna on the basis of

these complaints. Filing of various complaints cannot be a ground for not

bringing the children to matrimonial home. That apart, having regard to

the conduct of Vishal, I am of the firm opinion that no case is made out for

invocation of powers under SectionArticle 227 of the Constitution of India. Hence,

the petition fails and the same is dismissed.

(R. G. KETKAR, J.)
Deshmane (PS)

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