Allegation On Wife's Extra Marital Affairs Doubtful And It Doesn't Harm Children: Gujarat High Court Refuses To Grant Custody Of Children To Father

The Petitioner primarily contended that the Respondent was having extramarital affairs with other persons and therefore, for the child's welfare which was of paramount importance, the Petitioner was entitled to custody. The Respondent, per the Petitioner, could have spoilt the future of the child. There were also continuous quarrels between the Petitioner and the Respondent and the Petitioners constrained to lodge FIR against the Respondents for the offence punishable under Sections 323 and 294(B) of the IPC.

"The learned Family Judge has considered the said aspect and has opined that there is nothing on record to show as to how it is unsafe for his children and as to how the life of his children is at stake with the respondent herein. Further, so far as the allegations qua the character of the respondent is concerned, the learned Family Judge has opined that the same could not be believed only on the basis of the FIR, Photographs and/or the chatting details. It is further observed by the learned Family Judge that by virtue of an order passed below Exh. 6, visitation right has been granted to the petitioner and the respondent herein has been complying the said order scrupulously."

Exercise Of Power Under Article 226/227

The Bench, after appreciating the facts, placed reliance was placed on Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, (2010) 8 SCC 329 wherein the Court had opined:

"An improper and a frequent exercise of this power would be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle."

Further, the Bench drew a distinction between Articles 226 and 227 by averring that under Article 226, the High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. It was further opined that the power under Article 226 was exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. Emphasising that the power under Article 227 is discretionary and that unfettered use of this power could be counter-intuitive, Justice Ashokkumar Joshi refused to interfere with the order of the lower court.

Justice Joshi also referred to Puri Investments v. Young Friends and Co. and Others, MANU/SC/0290/2022 to observe: Puri Investments v. Young Friends and Co. and Others, MANU/SC/0290/2022

"There was no perversity in the order of the Appellate Tribunal on the basis of which the High Court could have interfered. In our view, the High Court tested the legality of the order of the Tribunal through the lens of an appellate body and not as a supervisory Court in adjudicating the application under Article 227."

The High Court affirmed the Family Court's point that it was unclear as to how the children were unsafe if the Respondent was having extra marital relations with other persons. Further visitation rights were already granted to the Petitioner and Respondents and due conduct was being followed. Therefore, the Family Court had considered all aspects while passing the impugned order.

Accordingly, the petition was dismissed.

Case Title: Shehjada Hanifbhai Patel vs Bilkis W/O Shahejada Hanifbhai Shehjada Hanifbhai Patel vs Bilkis W/O Shahejada Hanifbhai

Case No.: C/SCA/20048/2021

Citation :

Click Here To Read/Download Judgment