RAJAN ANKLESHWARIA Vs. VINNI ANKLESHWARIA

JUDGEMENT

(1.) By way of present First Appeal under Sec. 96 of the Code of Civil Procedure and Sec. 19 of the Family Courts Act, appellant- original applicant has challenged the validity of an order dtd. 4/7/2023 passed below Exh.6 of Civil Misc. Application No.4 of 2023 passed by learned Principal Family Court at Anand.

(2.) The background of case which has given rise to present appeal is that appellant and respondent got married on 19/1/2013 and on 19/1/2014, their marriage was solemnized as per Hindu Customary Rites and Ceremonies at Anand and during their wedlock, a son, named as Dhven, was born on 26/7/2018. According to appellant, during passage of time, some difference of opinion generated between appellant and respondent and according to appellant, respondent wife left the matrimonial house on 26/10/2022 without any valid reason. When the respondent left the house, their son was with appellant husband at his residence at Ahmedabad and appellant alone used to take care of all needs of the son and used to take care of academic schedule and used to pick and drop the son from school. Later on, some arrangement has taken place for dropping the son with respondent at her above-mentioned place at Anand in the weekends, i.e. on Friday, Saturday and Sunday, and pick him up on Sunday from Anand. Said arrangement was continued and academic schedule of their son was also not got disturbed. Minor son had a vacation in the school from 24/12/2022 till 2/1/2023 and as such respondent requested the appellant to drop their son at Anand for whole vacation period and keeping faith on respondent, appellant has dropped their son at the residence of respondent wife at Anand. Thereafter, on 2/1/2023, appellant called the respondent informing about his schedule to pick up their son, but respondent wife conveyed that she will not return the son to reside with appellant and thereafter having received such non-cooperative attitude, appellant was constrained to prefer an application being Civil Misc. Application No.4 of 2023 for seeking custody of their minor son Dhven under Ss. , 7, 17 and 25 of Guardians and Wards Act, read with Sec. 13 of Hindu Minority and Guardianship Act read with Sec. 7 of the Family Courts Act and read with Order-XXXIX of Code of Civil Procedure and in that proceedings, an application was submitted below Exh.6 for seeking interim and temporary injunction.

(3.) It is the case of the appellant that during pendency of the main proceedings, i.e. Civil Misc. Application No.4 of 2023, appellant received a notice on 4/3/2023 from the Family Court at Anand informing that respondent wife has preferred Civil Misc. Application No.1 of 2023 under Sec. 7 of the Guardians and Wards Act. Said applications then were referred for mediation on 4/3/2023 and later on, failure report was submitted on 27/3/2023 since mediation remained unsuccessful and matter came back in the Family Court. Subsequently, a joint pursis at Exh.18 was preferred on 28/3/2023 in Civil Misc. Application No.4 of 2023 indicating that minor son shall be with wife from Monday to Friday and in the weekends, i.e. from Saturday 5.00 p.m. to Sunday 6.00 p.m. minor son shall with present appellant. Said arrangement was abided by both the parties to the proceedings till hearing of interim and temporary injunction application being Exh.6. It is the case of the appellant that incidently, appellant has also filed an application under Sec. 9 of the Hindu Marriage Act before the Family Court on 28/6/2023 which has not been processed further, but then while taking decision on 4/7/2023, learned Principal Family Judge, according to appellant, has traveled beyond the scope of application which has led the appellant to submit present First Appeal for the reliefs which are set out in paragraph 6 of the appeal. Operative part of the order passed below Exh.6 reads as under:-