Gujarat High Court
Tufel Ahmed Ahmedbhai Sheikh vs Niloferbanu Babubhai Mogal on 24 July, 2018
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/6704/2018 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6704 of 2018
==========================================================
TUFEL AHMED AHMEDBHAI SHEIKH & ORS. ...PETITIONERS Versus NILOFERBANU BABUBHAI MOGAL ...RESPONDENT ========================================================== Appearance:
MS.YOGINI H UPADHYAY, ADVOCATE for the PETITIONERS MS. ASHLESHA M PATEL, ADVOCATE for the RESPONDENT ========================================================== CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 24/07/2018 CAV ORDER
1. Challenge in this petition is made by the father to the order dated 23.04.2018 passed by the Family Court, Ahmedabad, below application Exh.5 in Civil Misc. Application No.152 of 2016. By the impugned order, the Family Court has given the custody of the minor child to the mother.
2. Ms.Yogini H. Upadhyay, learned advocate for the petitioner - father has submitted that the Court below fell in error by giving custody of the child to the mother, since the mother is not in a position to take due care of the child. It is submitted that the Trial Court has not considered the case of the present petitioner appropriately and therefore the impugned order needs to be interfered with. In support of her submissions, learned advocate for the petitioner has relied on the following authorities.Page 1 of 3
C/SCA/6704/2018 CAV ORDER (i) Lekh Raj Kukreja Vs. Raymon - 1989 CJ (Del) 193. (ii) Rama Alias Ram Kala Vs. Anil Kumar Joshi - 1999 CJ (P & H) 671. (iii) Tara Chand Mavar Vs. Basanti Devi 1988 CJ (Raj) 482. (iv) Y. Varalakshmi Vs Y.Kanaka Durga Prasad - 1988 CJ (AP) 430. (v) Ram Murti Chopra Vs Nagesh Tyagi - 2008 CJ (Del) 2024. (vi) Sanju Vs Sombhanath - 1994 CJ (All) 246. (vii) Kala Aggarwal Vs. Suraj Prakash Aggarwal - 1992 CJ (Del) 239.
3. On the other hand, the respondent mother has appeared before this Court through Ms.Ashlesha M. Patel, learned advocate, nominated by High Court Legal Service Committee.
On the date of hearing i.e. on 05.07.2018, the respondent was also present in the Court. This Court had put certain questions to the respondent mother, as well. On behalf of the respondent and the respondent herself has submitted that, the date of birth of the minor child is 22.07.2016. The Court below has not committed any error by giving the custody of the child to the mother and except the mother, no one would be able to take care of the child, who is of tender-age. It is submitted that this petition be dismissed.
4. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds that the date of birth of the child is 22.07.2016. The Trial Court can not be said to have committed any error by Page 2 of 3 C/SCA/6704/2018 CAV ORDER ordering custody of the child with the mother. There is nothing on record, to indicate why the custody of the child should not be with the mother. No interference therefore is required in the impugned order.
5. There is additional factor which would further tilt the balance against the petitioner father and in favour of respondent mother. After the marriage, the husband was working in a gulf country. During the course of hearing before this Court, the mother has stated that, she is ready to go to her matrimonial home, even today with the child. To this, it is responded by the learned advocate for the petitioner that, the husband and in-laws are not ready to accept the respondent. The father of the child, or his family members, can not be permitted to contend that, the child of one and half year should live without the mother.
6. Considering the totality, this Court finds that no interference is required in the impugned order. The authorities relied by learned advocate for the petitioner husband would not take the case of the petitioner husband any further on the face of the above facts. This petition therefore needs to be dismissed.
7. For the reasons recorded above, this petition is dismissed. Interim relief granted earlier stands vacated. Rule is discharged.
(PARESH UPADHYAY, J) M.H. DAVE/2 Page 3 of 3