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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Appeal against Order No. 9 of 2017
Appellant : Namdeo son of Sadashiv Borkar, aged
about 50 years Occ: Teacher, resident of
Karjat, District Raigad
versus
Respondent : Smt Vaishali Namdeo Borkar, aged about
39 years, Occ: Household, resident of c/o U. T. Gajbhiye, Professors Colony, Nagina-
bag, Pradnya Chowk, Chandrapur Appellant in person Ms Kirti Satpute, Advocate for respondent Coram : S. B. Shukre, J Dated : 25th September 2017 Oral Judgment
1. Heard the appellant in person and Ms Kirti Satpute, learned counsel for the respondent at length. Perused the impugned judgment ::: Uploaded on - 28/09/2017 ::: Downloaded on - 29/09/2017 01:28:00 ::: 2 and order as also record of the case.
2. Now, the only point that arises for my determination is:
Whether the appellant proves that welfare of the child Vaibhav is ensured only upon granting his custody to the appellant ?
3. The appellant in person submits that the judgment and order impugned here are per se illegal and arbitrary and that they record perverse findings. He submits that the learned District Judge has not at all considered the welfare of the child and also the fact that the appellant being the father of the child, has a first right to the custody of his son, which would prevail upon the right of the respondent, if any. According to learned counsel for the respondent, ultimately the Court has to see as to where welfare of the child would lie and in the present case, upon weighing the facts and circumstances available on record, found that it would lie in the company of respondent and rightly so. She submits that there is no need to make any interference in the impugned judgment.
4. On going through the findings recorded by the learned ::: Uploaded on - 28/09/2017 ::: Downloaded on - 29/09/2017 01:28:00 ::: 3 District Judge in the present case, I am of the opinion that there is great substance in the argument of learned counsel for the respondent and no merit in the argument of appellant in person. These findings, although disagreed to by the appellant, are based upon the evidence brought on record and, therefore, could not be called as perverse or arbitrary.
5. It is seen from record of the case that the appellant, instead of tendering relevant evidence, has only tried to bring on record some facts which were not germane to the issue involved in this case which pertained to the welfare of the child. On the contrary, the record of the trial Court shows that this appellant did not behave properly before the District Court and by indulging into a conduct which was no less than violent laid before his son an example unworthy of a good father. It is particularly noticed that when a question was put to this appellant during the course of his cross-examination that on 29.1.2010 the appellant had tried to drive the respondent away, the appellant lost his temper and counter questioned the counsel cross-examining him. The retort of the appellant to learned counsel for the respondent was to the effect, as to how the learned counsel dared ask that kind of question to him and after questioning the propriety of the question asked of him by the learned counsel, the appellant in a fit of anger, left the Court hall adding that he did not want to say anything more. ::: Uploaded on - 28/09/2017 ::: Downloaded on - 29/09/2017 01:28:00 ::: 4
6. It appears that the matter has been remanded to the District Court by this Court earlier in order to give an opportunity to the appellant to tender further evidence. But, it was not availed of by him. There is an observation in that regard made in paragraph 12 of the impugned judgment, which is supported by the record of the case.
7. Apart from the conduct of the appellant, there is also absence of any evidence produced on record by the appellant which would show that if he is granted custody of the child Vaibhav, he would make most of it for ensuring welfare of his minor son Vaibhav.
8. A perusal of the evidence of the appellant (exhibit 22) shows that major part of his evidence relates to the allegations made by him against the respondent, the mother of the child and the grievances of the appellant against the respondent. About the welfare of the child, he has only stated that he is a teacher who desires to impart good education to his child, that he is competent to impart education, that the mental condition of the respondent is not proper and that she is being administered some medicines in that connection. These are all, I must say, generalised statements and would not be sufficient to hold that by granting custody of minor child to the appellant, welfare of the ::: Uploaded on - 28/09/2017 ::: Downloaded on - 29/09/2017 01:28:00 ::: 5 child would be ensured. On the contrary, the evidence adduced by the respondent gives an assurance that welfare of the child is well secured in the custody of the respondent. The child is being given proper education by the respondent, the result of which is that the child has crossed 10th standard of his school education.
9. With such evidence being available on record and added to it is the unworthy conduct of the appellant, I do not think that welfare of the minor child would lay in granting his custody to the appellant. The appellant has failed to prove that if custody is granted to him, it would serve very well to secure the welfare of the minor child. Rather, the evidence shows that if the custody is given, it is quite likely that it would create adverse impact on the state of mind of Vaibhav given the conduct of the appellant and his habit to throw tantrums..
10. This Court on 15th September 2017 had interviewed the minor child. The memorandum of this interview has been recorded by this Court on the same day. Whatever has been found by this Court after considering the evidence on record more or less had also emerged during the course of interview of the minor child. He had then said that he was happy with his mother at Chandrapur and that he would not go to the place of residence of his father. He stated that he was afraid of his ::: Uploaded on - 28/09/2017 ::: Downloaded on - 29/09/2017 01:28:00 ::: 6 father, because he was short tempered who behaved violently with his mother. So, the wish of the minor child who is having sufficient maturity to understand as to where he would remain happy and where he would not, also needs to be respected.
11. Considering the over all facts and circumstances of the case, I find that the impugned judgment is legal and proper. The appellant has failed to prove that he is entitled to receive custody of the minor. The point is answered accordingly.
12. In the result, appeal is dismissed. Parties to bear their own costs.
S. B. SHUKRE, J joshi ::: Uploaded on - 28/09/2017 ::: Downloaded on - 29/09/2017 01:28:00 :::