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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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14 wp.5046-1925. 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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15 wp.5046-1929. 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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16 wp.5046-19school 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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17 wp.5046-19any 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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18 wp.5046-19urgently 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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19 wp.5046-19were 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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20 wp.5046-19parties 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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21 wp.5046-1938. 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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22 wp.5046-19brought 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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23 wp.5046-19been 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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24 wp.5046-19"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."24 / 33
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25 wp.5046-19viii. 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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26 wp.5046-19Chandrapur 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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27 wp.5046-19interim 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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28 wp.5046-19order 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 Respondent28 / 33
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29 wp.5046-19No.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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30 wp.5046-19"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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31 wp.5046-19date 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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32 wp.5046-19It 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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33 wp.5046-19shift 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)33 / 33
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