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FA/336720/2007 1/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 3367 of 2007
=========================================================
JYOTSNA
NARANBHAI POPAT - Appellant(s)
Versus
KAMLESHBHAI
HIRALAL BAGDAI - Defendant(s)
=========================================================
Appearance
:
MR
SK PATEL for
Appellant(s) : 1,
MR PRAVIN GONDALIYA for Defendant(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 22/07/2008
ORAL
ORDER
1. This
appeal is directed against the judgement and order dated 14th
March 2007 passed by learned Joint District Judge, Rajkot, in Civil
Misc. Application No.1056/2006 whereby the present appellant was
directed to hand over the custody of minor within 30 days from the
date of the order.
2. The
marriage between the appellant and respondent had taken place about
17 years back and out of the said wedlock they have three children
named daughter Puja aged 16 years, son Vikas aged 14 years and
daughter Sraddha aged 9 years. Due to difference of opinion, the
appellant had left the respondent and the children in pursuance of
which an application under section 97 CPC came to be filed to give
the custody of children to the respondent. Ultimately there was a
settlement wherein the appellant was to be paid Rs.1600/- per month
and the present respondent has liberty to meet the children.
Thereafter Puja and Vikas started staying with the present
respondent and therefore the respondent stopped paying their portion
of maintenance. Ultimately the present respondent filed Misc. Civil
Application No.1056 of 2006 in the court of learned Presiding
Officer, Fast Track Court No.2, Rajkot stating that he wanted to send
her daughter to a good school and to give her good education. He,
therefore prayed that custody of Sraddha may be given to him. The
Joint District Judge and 2nd Fast Track Court, Rajkot
allowed the said application and directed to hand over the custody of
minor within 30 days from the date o the order. Against the said
order the present appeal has been filed.
3. Mr.
Patel, learned Advocate for the appellant has submitted that the
appellant is the mother of the minor and therefore no other person in
comparison of the mother can take care of the minor. He submitted
that the minor is a female child aged 10 years and therefore only
appellant can consider all the matters of welfare of the female
minor. According to the appellant the respondent is of angry nature
and he cannot take care of the minor child and this appeal may be
allowed.
4. Mr.
P.S. Gondalia, learned Advocate appearing for the respondent
submitted that the lower court has taken into consideration all the
facts and circumstances of the case and no case is made out to cause
interference in the present appeal. He therefore submitted that the
present appeal deserves to be dismissed.
5. As
a result of hearing of learned Advocates and perusal of the record it
is found that the trial court has considered all the aspects
including the financial aspect of the matter. The Court has also
considered the fact that the other two children are staying with the
present respondent and it would be in the interest of the minor child
to stay with them. The trial court has also considered the financial
condition of the respondent, the social status and the welfare of the
minor child and found that it would be in the interest of the minor
to stay with the respondent who can take care of her in a better
manner. Learned Advocate for the appellant is unable to point out
anything to reverse the finding of the trial court. I am in complete
agreement with the reasoning adopted and the findings arrived at by
the trial court.
6. In
the premises aforesaid, I do not find any merits in the appeal. The
appeal is, therefore, dismissed. No order as to costs.
[K.S.
JHAVERI, J.]
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