Jayashree Dattatraya Chavan vs Parvatabai Baburao Chavan And ...
2002 Latest Caselaw 76 Bom

JUDGMENT

R.J. Kochar, J.

1. The appellant is the mother of two school going children. She was aggrieved by the order passed by the District Court under section 25 of the Guardian and Wards Act for the custody of the said two children, who were at that time residing with the elder brother of the deceased husband of the appellant. The District Court had rejected the application for custody filed by the appellant, after interviewing the children. The District Court had recorded reasons for its order denying custody of the children to the appellant mother.

2. By his order dated 8th December, 2000 my learned Brother, Dr. D.Y. Chandrachud, J., had reversed the decision of the District Court and had granted the custody of the said minor children to the appellant mother. He had also allowed the children to meet the uncle and the grandmother with whom they were residing. According to the learned Judge, since it was a matter of custody and welfare of the children, he in effect desired to observe and keep watch on the affairs of the children and, therefore, he had ordered to place the appeal for directions in the month of April 2001. By the said order, the learned Judge had allowed the appeal.

3. This appeal has come before me finally as directed by the learned Judge. After going through the proceedings and after hearing the learned Advocates for both the parties, I realised the necessity to have a personal and close interview with the two children. Accordingly, both the children were kept present in my chamber. I had an informal and good talk with both of them, viz. Abhishek, a boy of 13 years age and Nisha, girl of 11 years age. Both are grown up and are of the age of understanding. The children go to school which is nearby the house of their uncle and grandmother, where presently they are residing. It is admitted development that though this Court had granted custody of the said two children to the appellant, they on their own voluntarily left the house of the appellant and came back to reside with their uncle and the grand mother. There is no allegations by the appellant mother that the children were forced to leave her or that they were forcibly taken away by the uncle or the grand mother. It is also an admitted fact that the appellant mother is employed as a teacher in some school. It is also an admitted fact that she is residing far away from the place of the uncle and the grand mother of the children and far away from the school where both the children are admitted. It appears that the appellant mother has accepted this reality. She also has in her heart the welfare of her children and she has conciled to the desire of the children, who were not desirous or willing to stay with her for the reasons best known to her and the children. From the submissions of the appellant herself, I sensed an apprehension in her mind that the uncle was trying to take away the property which would come to the share of the children as the legal heirs of the deceased brother of the uncle and father of the children. To remove this apprehension from her mind, I had directed the respondent uncle to file an affidavit to protect share of the children in the property of the family for the welfare and future of the children. It is significant to note that the uncle of the children Shri Murlidhar B. Chavan and grand mother of the children Smt. Parvatibai B. Chavan have filed an affidavit dated 21st January, 2002, setting out as to how they would be protecting the share of the children in the property. They have specifically mentioned in the affidavit that certain amounts would be deposited in the fixed deposit in the name of the children and that the said amount and the other property will not be dealt with by them till both the children acquire majority. The said affidavit is taken on record and marked as "Exh. 'X" for identification. If there is any violation of the undertaking recorded in the affidavit, the affiant will be liable to be dealt with in accordance with law.

4. As far as the property part is concerned, I am satisfied that neither the uncle nor the grand mother have any evil design or desire to deprive the children or their mother of their legitimate share in the property. Besides, the uncle and the grand mother have voluntarily taken the responsibility of the children in respect of their bringing up, their education and their livelihood. In fact and in law, it was not their responsibility. Even before me, the uncle submitted that he has no objection if the children go to reside with their mother. To know the minds of the children, I had an exclusive and close interview with the children in my chamber. Both of them refused to go to the mother. Both of them informed me that they were very happy with the grand mother and uncle and his two children. They also informed me that their school was very near to the place of their uncle. They also informed me that the uncle takes their study regularly. They also informed me that the uncle was looking after them with love and affection. They had also made a grievance against their mother that during the lifetime of their father and when he was suffering with ailment, the mother chose to leave them in lurch and did not care to see them. She had gone to her parents. She never made any enquiry about them. It appears that they narrated the same to even the District Court Judge who also appears to have had a interview with them.

5. According to the appellant, mother, however, the children were tutored and were saying so against her, I do not think so. In any case, the appellant mother, who was also before me finally accepted the reality that the children were not willing to stay with her and that they were happy with the respondents, uncle and the grand mother. She was also satisfied with the affidavit filed by the uncle and the grand mother to protect the interest of the children in the property. I had tried to pursuade the children in my own way by trying to emphasise and imbibe on their mind how a mother alone can look after the interest of the children and how a mother only can give love and affection to her children. Surprisingly both the children are firm and they are not at all inclined to go back to their mother and stay with her. They were, however, ready and willing to meet the mother whenever and wherever she would desire.

6. The uncle who was present before me has expressed his willingness to welcome and receive the appellant at his residence to see the children whenever the children were at home. He also said that there will not be any obstruction or cause for displeasure in the course of the meeting between the appellant and the children. In these circumstances, I direct that the uncle and the grand mother would take all responsibility of the children and that they should look after them and their welfare to the best of their ability and shall abide by the undertakings and averments in the affidavit filed today. The respondents shall also allow the appellant to see the children atleast once in a week during off hours of the school including the school holidays. If the children want to stay with the mother for a day or two or during vacation, the children would be allowed to do so and the respondents shall not object to such staying of the children on their own with the mother. Both the parties are at liberty to mention the matter in case of any difficulty. It is just strange that the children do no want to stay with their mother. Life is not the law.

7. The first appeal is disposed of accordingly. All concerned and parties to act on a copy of this order duly authenticated by the Shirestedar.