Gujarat High Court
Vishal Sureshchandra Khajanchi vs Shruti Vishal Khajanchi on 4 July, 2025
NEUTRAL CITATION
C/SCA/7807/2025 ORDER DATED: 04/07/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7807 of 2025
================================================================
VISHAL SURESHCHANDRA KHAJANCHI
Versus
SHRUTI VISHAL KHAJANCHI
================================================================
Appearance:
MR RAJESH B JOSHI(6250) for the Petitioner(s) No. 1
================================================================
CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 04/07/2025
ORAL ORDER
1. The present petition is filed under Article 226 of the Constitution of India seeking the following prayers.
"(A) Your Lordship may be pleased to admit and allow this Writ Application.
(B) Your Lordship may be pleased to allow granting ad-interim relief or interim relief by directing immediate custody of the minor child to the Petitioner-Father, being the biological father and natural guardian, in the absence of the mother, and further be pleased to direct the immediate resumption of the child's education by facilitating re- admission in the same school where the child was previously enrolled. (C) Your Lordships may be pleased to issue writ of mandamus or any other writ, order or direction quashing and setting aside the impugned order dated 19-04-2025 passed by the learned Family Court No. 3.
Vadodara below an Interim Child Custody Application at Exh.12 and thereby direct the parents of the Respondent-wife to immediately handover the custody of a minor child, Reyansh to the Petitioner pursuant to the order passed by this Hon'ble Court. (D) Pending admission, hearing and final disposal of this application, Your Lordships may be pleased to stay implementation, operation and execution of the impugned order dated 19-04-2025 passed by the learned Family Court No.3, Vadodara below an application, Exh.12 and thereby allow the Petitioner to take the custody of minor child Reyansh till the pendency of above case proceedings. (E) Your Lordships may be pleased to pass the order for allowing the petitioner for presenting and filing & hear this petition in civil vacation Page 1 of 8 Uploaded by RINKU MALI(HC01574) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:10:40 IST 2025 NEUTRAL CITATION C/SCA/7807/2025 ORDER DATED: 04/07/2025 undefined as the subject matter of this petition is very sensitive and involving the welfare of the child.
(F) xxx....."
2. Heard learned advocate Mr. Rajesh B. Joshi for the petitioner.
3. With the consent of learned advocate for the petitioner, this petition is taken up for final disposal.
4. The brief facts of the case are as under:-
4.1. The case of the petitioner-original applicant is that the marriage between the petitioner-husband and the respondent-
wife was solemnized on 11.05.2013 in accordance with Hindu rites and ceremonies. Out of the said wedlock, a son named Reyansh was born on 20.07.2018. Following the birth of the child, the respondent resided at her parental home in Vadodara for approximately six months. During this period, the respondent's brother moved to Canada for educational and professional purposes. Subsequently, the respondent and her parents began exerting pressure on the petitioner-husband to Page 2 of 8 Uploaded by RINKU MALI(HC01574) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:10:40 IST 2025 NEUTRAL CITATION C/SCA/7807/2025 ORDER DATED: 04/07/2025 undefined relocate to Canada along with the respondent-wife and their minor child.
4.2. Subsequently, on 09.12.2019, the respondent-wife voluntarily and willfully left the matrimonial home along with the minor child. Thereafter, the petitioner-husband issued a legal notice dated 24.04.2021 calling upon the respondent-wife to resume cohabitation and restore conjugal relations. In reply, the respondent levelled false, scurrilous, and derogatory allegations against the petitioner and his parents. Subsequently, on 11.05.2021, the respondent-wife instituted Family Suit No. 451 of 2021 seeking a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 before the learned Family Court at Vadodara. Thereafter, the petitioner-husband filed a petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights before the learned Family Court, Bandra, Mumbai on 24.06.2021. Thereafter, on 12.08.2021, the respondent-wife lodged a complaint under the Domestic Page 3 of 8 Uploaded by RINKU MALI(HC01574) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:10:40 IST 2025 NEUTRAL CITATION C/SCA/7807/2025 ORDER DATED: 04/07/2025 undefined Violence Act, 2005, before learned Vadodara Court which came to be dismissed on 05.11.2022.
4.3. In the meantime, the respondent-wife left India and went to Canada on 20.11.2021, leaving the minor child in the care and custody of her parents. Consequently, the petitioner preferred an application vide Exh. 28 under Section 26 of the Hindu Marriage Act, 1955 before the learned Family Court, seeking interim custody of the minor child. The said application was allowed and interim custody was granted to the petitioner till the respondent-wife returned from Canada. Upon her return on 27.12.2022, the respondent-wife resumed custody of the minor child.
4.4. Thereafter, the petitioner-husband instituted CMA No.40 of 2023 before the learned Family Court, Vadodara, seeking permanent custody of the minor child and also filed an interim custody application vide Exhibit-12. The said interim application was rejected vide order dated 19.04.2025 by the Page 4 of 8 Uploaded by RINKU MALI(HC01574) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:10:40 IST 2025 NEUTRAL CITATION C/SCA/7807/2025 ORDER DATED: 04/07/2025 undefined learned Family Court.
4.5. Being aggrieved and dissatisfied with the impugned order of learned Family Court, petitioner-husband is before this Court.
5. Learned advocate for the petitioner would submit that petitioner being biological father and natural guardian of child Reyansh, has fundamental and constitutional rights to get custody of his son. It is contended that without prior permission respondent had gone to Canada pending other proceedings. The custody of minor was handed over to petitioner-husband during the absence of respondent and when respondent returned to India, custody was given back to respondent-mother. It is further contended that recently on 27.12.2024, respondent had gone to Canada for second time and child is residing with parents of respondent. The growth and development of child is adversely affected due to absence of respondent.
5.1. It is further submitted that learned Family Court has rejected Interim Child Custody application of petitioner, though Page 5 of 8 Uploaded by RINKU MALI(HC01574) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:10:40 IST 2025 NEUTRAL CITATION C/SCA/7807/2025 ORDER DATED: 04/07/2025 undefined the respondent has left the child at the age of 6 years. Learned Family Court has not given a thought about the effect of this on the child's mind. Therefore, learned advocate for the petitioner prayed to set aside and quash the order of learned Family Court. Except above, no other submissions are canvassed by the learned advocate for the petitioner.
6. I have considered the submissions canvassed by learned advocate for the petitioner and perused the papers produced on record. The challenge made by the present petitioner is against the rejection of an application for interim custody of the minor son. It is also prayed that the petitioner may be permitted to take the minor son Reyansh with him at Bombay. It appears from the contentions raised by learned advocate for petitioner that the Family Suit No.451 of 2021 came to be filed by the petitioner- husband against the respondent-wife for a decree of divorce and the petitioner filed an application under Section 26 of the Hindu Marriage Act for interim custody of his son. The interim Page 6 of 8 Uploaded by RINKU MALI(HC01574) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:10:40 IST 2025 NEUTRAL CITATION C/SCA/7807/2025 ORDER DATED: 04/07/2025 undefined custody of the son was given to petitioner as the respondent- wife had gone to Canada. On returning from Canada, the custody of the minor son was handed over to the respondent- wife. It also appears from the impugned order that under the proceedings of divorce filed under Section 13(1)(ia), visitation rights are granted to the petitioner-husband and the petitioner is availing the visitation rights as per shown in the order passed by learned Family Court. As per the order, the petitioner is permitted to meet his son on every first and third Saturday between 3:00 p.m. to 5:00 p.m. as well as the petitioner is permitted to have a video call to have a conversation with his son. When the petitioner is protected by having a visitation rights pending the divorce proceedings as well as pending the custody proceedings, learned Family Court has not committed any error of law in rejecting the application-Exhibit-12. The learned advocate for the petitioner could not point out any illegality being committed by the learned Family Court in rejecting the application except the fact that the respondent-wife Page 7 of 8 Uploaded by RINKU MALI(HC01574) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:10:40 IST 2025 NEUTRAL CITATION C/SCA/7807/2025 ORDER DATED: 04/07/2025 undefined in the year 2024 has gone to Canada and for that reason, the interim custody of the minor child should be given to petitioner- husband.
7. The scope under Article 227 of the Constitution of India is very narrow and this Court can only interfere in the order impugned if the same is de hors the provisions of law and there is patent illegality and arbitrariness in arriving at the conclusion. Moreover, considering the facts, exercise of powers under Article 227 of the Constitution of India cannot be invoked since the learned advocate for the petitioner could not point out any gross error being committed by learned trial Court.
8. In the totality of the facts, this Court is of the view that there is no infirmity or illegality in the order impugned. Hence, this petition cannot be entertained and the same is rejected.
(D. M. DESAI,J) RINKU MALI Page 8 of 8 Uploaded by RINKU MALI(HC01574) on Tue Jul 08 2025 Downloaded on : Tue Jul 08 23:10:40 IST 2025