The Gujarat High Court was hearing a petition under Articles 226 and 227, wherein the Petitioner prayed for handing over the interim custody of his children after it was rejected by the Family Court Judge.
Opining on the matter, the High Court said that in exercise of its power of superintendence, it cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view.
The learned advocate for the petitioner husband submitted that earlier when the respondent had deserted the petitioner in 2015, the minor children were residing with the petitioner only, for about two years. Thereafter, since compromise took place between them, the respondent against started residing with the petitioner.
However, again in 2019, quarrel took place between them and the petitioners constrained to lodge FIR against the respondent for the offence punishable under Sections 323 and 294(B) of the Indian Penal Code, 1860 (the IPC). Thus, in view of the conduct of the respondent, it is not proper to have the custody of the children with her.
The Petitioner also contended that the Respondent wife 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.
Gujarat High Court
Justice Ashokkumar Joshi refused to interfere with the order of the lower court and said,
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, 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 stated that the power under Article 226 was exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. The judge emphasised that the power under Article 227 is discretionary and that unfettered use of this power could be counter-intuitive.
Children Not Unsafe If Mother Has Extra-Marital Affair
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
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