Gujarat High Court
Sharad Shishir Kabra vs Arpita Agrawal W/O Sharad Shishir Kabra on 19 July, 2018
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/11141/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11141 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 11145 of 2018
============================================
SHARAD SHISHIR KABRA PETITIONER
Versus
ARPITA AGRAWAL
W/O SHARAD SHISHIR KABRA RESPONDENT
============================================
Appearance:
MR MIHIR THAKORE, SENIOR ADVOCATE with
MS JAYANI B SHAH, ADVOCATE for the PETITIONER (Husband)
MR SHALIN MEHTA, SENIOR ADVOCATE with
MR ABHISST K THAKER, ADVOCATE for the RESPONDENT (Wife)
============================================
CORAM:HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 19/07/2018
ORAL ORDER
1. Challenge in these two petitions is made to the common order passed by the Family Court, Ahmedabad dated 20.06.2018 below application Exh.5 and application Exh.16 in Family Suit No.860 of 2018, whereby the Family Court has ordered that the custody of the three year old daughter shall be with the mother. The father of the child has challenged the said order. Since the impugned order is recorded on two cross applications, two petitions are filed before this Court.
2. Mr.Mihir Thakore, learned senior advocate for the petitioner (father) has submitted that, though ordinarily, the custody of a child, who is below five years of age, needs to be with the mother, in the facts and circumstances of this case, the father should have been given the custody of the child. It is submitted that the respondent mother is unfit to have the Page 1 of 6 C/SCA/11141/2018 ORDER custody of the child (daughter), as she takes decisions on spur of the moment and she is of mercurial volatile temperament, which shows unsteadiness of the mind of the respondent mother, which would affect the child. He further submitted that the mother will not be able to take care of the child as she is a working lady and due to her professional commitments, she has to be away from the child at least for eight to nine hours a day. It is submitted that she is living alone in Delhi and her parents are residing in Kolkata and with this arrangement, the child would not be taken care of properly, more particularly when the child is being taken care of by a maid, in her absence. He further submitted that development of the child daughter requires steadiness on the part of the mother and it would be in the best welfare of the child daughter if the custody remains with the father. Learned senior advocate for the petitioner has also taken this Court extensively through the paper-book running in few hundred pages, including transcripts of phone calls, WhatsApp messages and emails between them. It is submitted that the impugned order be interfered with by this Court, by allowing the application Exh.5 which was filed by the petitioner father and by rejecting application Exh.16 which was filed by the respondent mother. It is submitted that these petitions be entertained.
3.1 On the other hand, Mr.Shalin Mehta, learned senior advocate for the respondent mother has contested these petitions. He has taken this Court through the language of Section 6(a) of the Hindu Minority and Guardianship Act, 1956, to contend that the custody of a minor child, who has not completed the age of five years, should be with the mother in the ordinary circumstances and the burden lies upon the father to prove that the custody of the child, in the present case, Page 2 of 6 C/SCA/11141/2018 ORDER need not be given to the mother, which he has not discharged.
3.2 Mr.Mehta, learned senior advocate for the respondent mother, on instruction, states that, the mother is staying with her father at Kolkata and presently she is not doing any job.
3.3 Learned senior advocate has also taken this Court through the material on record including the transcript of the telephonic conservations between the husband and wife to contend that, attempt on the part of the husband to record all these conservations itself is a factor, which should tilt the balance against the petitioner himself. Attention of this Court is also invited to the impugned order dated 20.06.2018 to contend that, firstly it ought not to have been stayed by the Trial Court for a month, and further the petitioner husband has approached this Court, at the eleventh hour to utilize the said stay, which was granted in his favour. Independent of it, it is submitted that, the impugned order may not be interfered with by this Court. It is submitted that these petitions be dismissed.
4. It is noted that, learned senior advocates for the respective parties have addressed this Court at length and have taken this Court through the paper-book, which runs in hundreds of pages.
5. Having heard learned senior advocates for the respective parties and having considered the material on record, this Court finds as under.
5.1 The marriage between the parties was solemnized on 18.02.2013. Out of this wedlock, a daughter was born on 04.05.2015. The husband and wife are now not staying Page 3 of 6 C/SCA/11141/2018 ORDER together. The issue before the Court below was with regard to the custody of the minor daughter. The Trial Court has, for the reasons recorded in the impugned order, directed that the custody of the child - daughter should be with the mother.
5.2 The Court below has, while passing the impugned order, taken into consideration the provision contained in Section 6 of the Hindu Minority and Guardianship Act, 1956. The child - daughter is less than five years of age. Proviso to Clause (a) of Section 6 of the said Act would come in play. In view of the said provision, the custody of the child has to be with mother, unless something extraordinary is pleaded and proved by the father against the mother. There is nothing on record which satisfies this proviso. Having considered the reasons recorded by the Trial Court vis-à-vis the proviso to Section 6(a) of the Hindu Minorities and Guardianship Act, 1956, this Court finds that the petitioner father has not discharged the burden to prove the case against the respondent mother, as to why the custody should not be with the mother. The impugned order therefore would not call for any interference.
5.3 There are additional reasons which would further tilt the balance against the petitioner father and in favour of the respondent mother. The Trial Court has noted in detail, as to why the custody of the child should not be with the father. This Court has considered the reasons recorded by the Trial Court, more particularly from para: 15 onwards, in the impugned order. Having considered the same, this Court does not find any infirmity, which may call for any interference. The Court below, so also this Court has taken into consideration the socio-economic background of both the parties, as well as their families. Based on that, satisfaction is recorded to the effect Page 4 of 6 C/SCA/11141/2018 ORDER that, injunction application Exh.5 filed by the father could not have been granted, and application Exh.16 filed by the mother seeking the custody of the child, should have been granted, which the Trial Court has rightly done.
5.4 Before confirming the impugned order passed by the Family Court, it is noted that, the husband has placed on record the transcript of telephonic conversation with his wife - the present respondent. Firstly, this itself would show, as to how the entire issue has been dealt with by the husband. To say the least, the privacy of this conversation (with his wife) ought to have been respected with more dignity by the husband, which he has not. Since now it is part of record, and the husband has insisted that the same be taken into consideration, this Court has considered the same. Even after considering the said transcript, this Court does not find anything, which would disentitle the mother, from having the custody of the minor daughter with her. This would however tilt the balance against the father. Viewing the matter from any angle, this Court finds that, the impugned order does not call for any interference. These petitions therefore need to be dismissed.
6. For the reasons recorded above, both these petitions are dismissed.
7. After the dictation of this order is concluded, request is made on behalf of the petitioner husband to stay this order, for some time. This request is rejected for more than one reasons. Firstly, this petition is moved, considered and dismissed today itself and there can not be extension of time on the petition, which is not entertained at all by this Court. Further, the Page 5 of 6 C/SCA/11141/2018 ORDER process of law is sufficiently abused by the petitioner husband and no more indulgence needs to be extended in his favour. This Court could have directed the petitioner father, to come before this Court with the child, and thereafter the custody of the child could have been given to the mother here itself, however this Court has restrained to do so.
(PARESH UPADHYAY, J) MO BHATI/PS/08-09 Page 6 of 6