ABHISHEK MADANLAL BINAYKIA Vs. SWATI ABHISHEK BINAYKIA

JUDGEMENT

(1.) The present petition under Article 227 of the Constitution of India is filed for the purpose of challenging the legality and validity of the order dated 12.02.2019 passed in Civil Misc. Application No. 106 of 2018 filed in Family Suit No. 1665 of 2015.

(2.) The case of the petitioner is that the parties to the petition are estranged matrimonial relations. The petitioner is the husband whereas the respondent is the wife and out of wedlock one child is born named as Vihaan Binakia who is at present under the custody of the petitioner, pursuant to the orders of the court. The petitioner resides in India with Vihaan, whereas the respondent - wife resides in California, USA. On account of such estranged relationship, the petitioner was constrained to file Family Suit No. 1665 of 2015 on 18.09.2015 for seeking decree of divorce under the provisions of Section 13(1) of the Hindu Marriage Act, 1955. The petitioner also filed another suit under Section 7(1) (g) of the Family Courts Act , 1984 being Family Suit No. 1546 of 2015, for retaining the custody of Vihaan, before the Family Court, Ahmedabad on 28.08.2015 in an Exhibit?5 application. Ultimately, the court issued notice and refused to grant ex?parte ad?interim injunction and being aggrieved by the same, the petitioner had to file Special Civil Application No. 14299 of 2015, wherein by virtue of order dated 03.09.2015, the court was pleased to direct the parties to maintain status?quo as regards the custody of Vihaan who is undisputedly with the petitioner. By passing further order on 11.09.2015, Special Civil Application came to be disposed of with a direction to complete the hearing of the interlocutory application Exhibit?5 within a period of four weeks and continued the interim relief till the Family Suit is decided and this was specifically keeping in view the welfare of the child as indicated in para 17 of the order.

(3.) The Court issued notice in the present proceedings vide order dated 11.03.2019 and has adjourned the matter for giving appropriate opportunity to the respondent - wife time and again vide orders dated 16.04.019, 26.04.2019 and thereafter on 03.05.2019 as per the say of learned advocate for the petitioner, these orders have been communicated to the respondent wife through electronic mode as well. Further, in the present proceeding, the respondent - wife has chosen not to be represented though was actively represented by the learned advocate in the other proceedings which reached upto the Apex Court on the issue of child custody. Hence, with this background, the present petition has come up for consideration before this court, which under the circumstance the court is constrained to hear and dispose of the petition ex?parte, since the respondent - wife has chosen not to co?operate with the proceedings.