Gujarat HC refuses child custody to father despite allegations against wife’s character, her extramarital affairs

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The Gujarat High Court recently refused to interfere with a Family Court’s order where an application by the petitioner-father for interim custody of his children aged 17 and 12 years was rejected [Shehjada Hanifbhai Patel v Bilkis].

Justice Ashokkumar C Joshi took into account that the Family Judge had considered the allegations of extra-marital affairs of the wife and opined that there was nothing on record to show how it was unsafe for the children and how their life was at stake.

“The learned Family Judge has committed no error, much less an error apparent in the face of it, which requires interference at the hands of this Court ina petition under Articles 226/227,” the Court said.

The single-judge noted that the Family Court had opined that there was not enough material to substantiate the allegations against the wife’s character.

The petitioner had moved the High Court claiming that the Family Judge failed to take into consideration the extra-marital affairs of the respondent.

It was the petitioner’s submission that in matters of child custody the welfare of the child was of paramount consideration, and his children were not safe.

The Court was informed that the petitioner had lodged a first information report (FIR) against the respondent for the offences of voluntarily causing hurt and doing obscene acts. Therefore, it was not proper for her to have the children’s custody.

However, the Court while referring to a judgment of the Supreme Court in Shalini Shyam Shetty v. Rajendra Shankar Patil noted that in exercise of its power of superintendence, the High Court could not interfere to correct mere errors of law, fact or just because another view was possible.

The judgment considered in detail the scope of interference under Article 227. The top court had held that an improper and a frequent exercise of this power would be counterproductive and divest extraordinary power of its strength and vitality.

Thus, Justice Joshi noted that a petition under Article 227 could not be given a shape of an appeal in disguise.

Considering the facts of the case, the Court found that the respondent was complying with the visitation rights of the petitioner scrupulously.

Therefore, it was the High Court’s view that the Family Judge had not committed an error, and the plea was dismissed.

Advocates MTM Hakim and VA Mansuri appeared for the petitioner.

Read Judgment here:

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