Allowed

Rupalba @ Rinkuba D/O Davendrasinh Ramsinh Mahida v. Manubha Khodubha Zala

Gujarat HC3 Jul 2018FA/1857/2018

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a Family Court order granting custody of a 17-year-old minor to her grandparents. The High Court held that without specific proof of the mother's disqualification, the child should not be separated from her mother, noting her age and the mother's stable household with a stepfather.

What did the court decide?

The judgment of the Family Court allowing custody to the petitioners is set aside. The appeal is allowed and disposed of.

Rupalba @ Rinkuba D/O Davendrasinh Ramsinh… — Child Custody and Guardianship | Gujarat HC (2018)

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C/FA/1857/2018 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/FIRST APPEAL NO. 1857 of 2018

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE AKIL KURESHI

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and HONOURABLE MR.JUSTICE B.N. KARIA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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RUPALBA @ RINKUBA D/O DAVENDRASINH RAMSINH MAHIDA

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Versus

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MANUBHA KHODUBHA ZALA

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Appearance:

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MR RAXIT J DHOLAKIA(3709) for the PETITIONER(s) No. 1 MR DJ BHATT(164) for the RESPONDENT(s) No. 1,2

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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI

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and

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HONOURABLE MR.JUSTICE B.N. KARIA

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Date : 03/07/2018

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ORAL JUDGMENT

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(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)

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1. This First Appeal is filed by the original

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Page 1 of 8

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C/FA/1857/2018 JUDGMENT

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defendant challenging the judgment and decree of the
Family Court, Nadiad dated 12.04.2018 in Civil Misc.
Application No.60 of 2017.

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2.Brief facts are as under.

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3.The respondents herein-original petitioners
before the Family Court are the parents of one
Chhatrapalsinh, with whom the present appellant i.e.
the original defendant was married. Out of the
wedlock, one child Ankita was born who is presently
about 17 years old. Chhatrapalsinh died in the year
2001. The defendants and her daughter continued to
reside in a joint family with the petitioners i.e.
the in-laws. This continued till the year 2012.
Since then, the defendant and her daughter have been
residing separately from the petitioners. Initially
the defendant lived with her parents. She has
recently got married on 14.12.2016. Since then,
Ankita is also living with her mother and step
father.

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4.Multiple proceedings were instituted by the
defendant against the petitioners for harassment,
cruelty, etc., making allegations of ill-treatment by

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Page 2 of 8

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C/FA/1857/2018 JUDGMENT

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the relatives of her husband. To put an end to all
these disputes, the parties entered into a compromise
dated 23.03.2014 which was reduced in writing
and produced before the Court below at Exh.17. As
per this agreement, the defendant would withdraw all
proceedings against her in-laws in lieu of being paid
a sum of Rs.55 lakhs. She would also forfeit her
claim over any of the family properties which she
would have through her husband. The compromise deed
recognized that Ankita would continue to live with
her mother. However, one of the conditions of this
compromise deed was that if in future the defendant
remarried, the custody of the daughter would be
handed over to the petitioners. The document also
records that out of the total sum payable to the
defendant, a sum of Rs.5 lakhs was paid through
cheque at the time of execution of the compromise
deed.

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5.Mainly on the grounds that the defendant did not
agree as per the terms of the compromise and that as
per the agreement, on remarriage, the custody of the
child would be handed over to the grandparents, which
the defendant had not done, a petition was filed

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Page 3 of 8

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C/FA/1857/2018 JUDGMENT

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before the Family Court for handing over the custody
of minor Ankita to them and to appoint them as her
guardians. The defendant opposed such application by
filing a written statement denying all the
allegations.

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6.Deposition of petitioner no.1-Manubha Khodubha
Zala was produced at Exh.15. He reiterated the
averments made in the Misc. Civil Application. He
contended that Ankita was not properly looked after
by her mother, due to which, her education has
suffered. He was cross examined. Deposition of
defendant was produced at Exh.22. She pointed out
that Ankita was studying in 11th standard in a local
English medium school. She was forced to leave the
house of her in-laws in the year 2012 because of
harassment. She alleged that the petitioners had not
fulfilled the terms of the compromise deed. She
stated that Ankita's education is properly looked
after. She produced her mark-sheets of last three
years and the receipts for having paid sizable amount
of school fees. She also produced certificate of
extracurricular activities pursued by Ankita.

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Page 4 of 8

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C/FA/1857/2018 JUDGMENT

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7.The learned Judge of the Family Court, by the
impugned judgement, allowed the prayers of the
petitioners. He was influenced by the fact that
after her second marriage, the defendant had not
given the account of sum of Rs.5 lakhs nor returned
the same to the petitioners. He noticed that as per
such agreement, upon remarriage of the mother,
custody of the daughter would be handed over to the
petitioners. Curiously, the learned Judge also noted
that the marriage of the defendant took place with a
person belonging to a community other than her own.
We wonder what could be the significance of this
observation. The learned Judge was of the opinion
that the welfare of the minor would be better served
if her custody is handed over to her grandparents.
The learned Judge was of the opinion that the mother
had no independent source of income. She was thus
entirely dependent on the income of her husband. No
deed of adoption was executed by him. Resultantly,
the Family Court passed an order handing over the
custody to the petitioners and appointing them as
guardians for managing her properties.

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8. Having heard learned counsel for the parties and

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Page 5 of 8

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C/FA/1857/2018 JUDGMENT

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having perused the documents on record, we are
seriously perturbed by the final order of the Family
Court and also the manner in which the final
conclusions have been arrived at. First, we record

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the reasons why in the present case it is not
necessary to separate the daughter from the mother by
handing over her custody to someone else even if it
happens to be her grandparents. Firstly, as per the
Hindu Minority Act, in absence of the father, the
mother is a natural guardian of a minor. Secondly,
subject to the paramount consideration of welfare of

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a minor, it can be stated to be a universal belief
that a mother is the best person to bring up the
child during infancy and adolescence. There may be
exceptions where due to special reasons the mother

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may disqualify herself to look after her own child.
Nothing is brought on record in this case to arrive
at any such conclusion. The husband of the mother

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i.e. the stepfather of minor seems to be well
supporting the family. This can be gathered from the
education that Ankita is pursuing. Sizable amount of

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school fees have been paid regularly. Besides
academic activities, Ankita is also engaged in

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Page 6 of 8

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C/FA/1857/2018 JUDGMENT

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various extracurricular activities. All these would
point to normal and happy atmosphere in the family.
There may be disputes between the defendant and the
petitioners. We are not going to comment on the
correctness or fairness of the approach of the either
side. The defendant alleges that the petitioners did
not pay the remaining amount as per the agreement.
The petitioners allege that the defendant did not
account for the sum of Rs.5 lakhs which was meant for
the welfare of the child. These allegations and
counter-allegations would not be sufficient to
dislodge the custody of a minor from her mother. One
more strong factor which we wish to add is that
Ankita is aged about 17 years. We had detailed
conversation with her about her family and her wish.
She was clear and wanted to stay with her mother.
She showed no discomfort or any other hesitation in
living with her stepfather. A child as old as 17
years cannot be lightly separated from a parent for
handing over the custody to the grandparents.

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9.We would now briefly comment on some of the

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curious observations made by the Family Court. As
noted, one of the factors was that the defendant had

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Page 7 of 8

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C/FA/1857/2018 JUDGMENT

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married with a person from another caste. Surely
this cannot be a disqualification for a mother to
look after her own child. Equally strange was the
observation that defendant's husband has not executed
an adoption deed. This observation is too bizarre
even to comment upon.

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10.In our understanding, virtually, no reasons or
at any rate, no valid reasons are cited by the Family
Court for uprooting a teenager from her family by a
judicial order.

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11.In the result, impugned judgment of the Family
Court is set aside. First Appeal is allowed and
disposed of. R & P to be transmitted back to the
Family Court.

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(AKIL KURESHI, J)

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(B.N. KARIA, J)

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ANKIT SHAH

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Page 8 of 8

Rupalba @ Rinkuba D/O Davendrasinh Ramsinh Mahida v. Manubha Khodubha Zala

Case brief

What is this about?

What did the court decide?

Rupalba @ Rinkuba D/O Davendrasinh Ramsinh Mahida v. Manubha Khodubha Zala

Case brief

What is this about?

What did the court decide?

What the court decided

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