This particular decision is upheld by the High Court of Gujarat through the learned bench led by HONOURABLE MR. ASHOK KUMAR C. JOSHI in the case of Shehjada Hanifbhai Patel v. Bilkis, R/Special Civil Application No. 20048 of 2021).
In the present matter, the petitioner had alleged that the respondent had extramarital affair with two persons. Petitioner had also produced an FIR copy filed by the brother of the respondent against Shrirang Dharmendra, with whom the respondent indulged in an extra-marital affair. A petition was filed against an order of the Family Court by which the petitioner-applicant sought interim custody for his children, which came to be rejected by the Court’s Order.
High Court referred to the Supreme Court decision in Shalini Shyam Shetty v. Rajendra Shankar Patil, wherein the Court considered in detail the scope of interference by this Court to hold and observed that Article 227 can be invoked by the High Court Suo motu as a custodian of justice. 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 principles.
The Bench expressed that, the exercise of power under Article 227 of the Constitution of India should be with a view to keep the tribunals/Courts within the bounds of their authority, to ensure that law is followed by tribunals/Courts by exercising jurisdiction which is vested in them and/or when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
Family Judge opined that there is nothing on record to show as to how it was unsafe for his children and as to how the life of his children is at stake with the respondent.
Further, so far as the allegations qua the character of the respondent is concerned, the Family Judge opined that same could not be believed only on the basis of the FIR, photographs and/or the chatting details.
The Family Judge had further observed that since the beginning, the children were residing with the respondent only, however, only on bare averments qua character of the respondent, sans any corroborative evidence, it was not proper to hand over the custody of the children to the petitioner. High Court opined that the Family Judge had committed no error and did not require interference at the hands of this Court.
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Judgement reviewed by – Arvind Roshan