Shri Natraj S/O Bhagwan Hirekhan vs Sou. Sushma W/O Natraj Hirekhan
2016 Latest Caselaw 1089 Bom

                                                                              wp4666.14
                                            1




                                                                           
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.




                                                   
                          WRIT PETITION     No. 4666 OF 2014




                                                  
    Natraj s/o Bhagwan Hirekhan,
    aged about 40 years,
    Occupation : Service,




                                          
    r/o Rahul Nagar,
    Somalwada, Nagpur.                                 .... PETITIONER.
                               
                              VERSUS
                              
    Sou. Sushma w/o Natraj Hirekhan,
    aged about 32 years,
    Occupation : Service,
    c/o Ramesh Sadhu Borkar,
      


    Gopiwada,
    Tahsil & Distt. Bhandara                         ....  RESPONDENT.
   



                                     ....
    Shri N.B. Bargat Advocate for the Petitioner.





    Shri Ganesh Gurnule h/f Advocate A.B. Moon for the Respondent.
                                     .....


                                       CORAM : S.B. SHUKRE, J.

DATED : 01.04.2016.

ORAL JUDGMENT :

Rule. Rule made returnable forthwith. Heard finally

by consent of parties.

wp4666.14

2. This writ petition has been opposed by the learned

counsel for the respondent. Shri Gurnule, who holds for Shri A.B.

Moon, learned counsel for the respondent, submits that the matter

be kept on Monday as Shri Moon is not available in town today. I

would have readily acceded to the request had it been made in

time. When this matter was listed for hearing yesterday, i.e. on

31.3.2016, Shri Gurnule sought the adjournment only on the

ground that his senior, Shri Moon, learned advocate for the

respondent, was not available. On his request, the hearing of the

petition was deferred to this date- the 1st of April, 2016 and it was

not informed by Shri Gurnule that even on 01.4.2016 Shri Moon

would not be available. He submits that after the petition was

kept for hearing today, he made a telephonic call to Shri Moon

when he learnt that Shri Moon would not be available for

attending the hearing of the case today and, accordingly, in the

morning he informed this Court . However, he conceded at that

time he had not informed learned counsel for the petitioner

regarding his move to make a request to this Court for

adjournment. The reason given by Shri Gurnule for inability of his

senior to attend the hearing of this case cannot be accepted.

When a junior advocate appears in a case, he must attend to the

interests of his client properly and after taking all necessary

wp4666.14

instructions prior to beginning of the hearing, if Shri Moon was not

available today, it ought to have been informed to this Court

yesterday itself that the date of 01.4.2016 was not convenient.

Considering the convenience of the parties and with their consent

only that this date of 01.4.2016 has been fixed and accordingly

the matter has been kept at 2-30 p.m. today. If such prayers for

adjournment are granted without there being any justification

whatsoever, the welfare and interest of the child would ultimately

suffer, which is the last thing, any one interested in the child

would like to happen. The academic session of the child is going

to begin very soon and the matter has reached a situation of

urgency. That apart, on perusal of the order impugned in this

case it appears that even the learned Judge of the Family Court

has dealt with the whole issue, to say the least, with not as much

seriousness as it deserves. Therefore, the request made for grant

of further adjournment now cannot be acceded to.

3. It is not in dispute that the petitioner and the

respondent are now a divorced couple. Unfortunately, the divorce

between the petitioner and the respondent has been creating

adverse impact on the welfare and the career of their only

daughter, Ku.Anita @ Gloria. Yesterday, I had an occasion to

wp4666.14

personally interact with the child in the chamber. The child

appears to be bright, resplendent and bubbling with all energy.

She would certainly have a bright future if she is allowed to

receive good education. Therefore, the issue of her receiving

good education needs to be dealt with properly and from view

point of welfare of Ku.Gloria.

4. The learned Judge of the Family Court, by his order

passed on 09.5.2014, directed the petitioner to take necessary

steps for admitting the child in the School at Deolali, Nashik. The

learned Judge, while passing the order, recorded a finding that as

far as admission of the child in higher standard school is

concerned, it is in the best interest of the child. The learned Judge

also considered the fact that the respondent-mother did not file

any objection to the application filed by the petitioner seeking

permission of the Court for admitting the child in the school at

Deolali. It was with such finding and such background of the case

that the learned Judge of the Family Court passed the order on

09.5.2014 following which, as informed by the learned counsel for

the petitioner, and about which there is no dispute, the petitioner

completed all the formalities regarding admission of child Gloria in

a school situated Deolali, Nashik, which is famously known as

wp4666.14

Barnes School and even got admitted Gloria to Barnes School on

06.6.2014. For this purpose, the custody of the child was obtained

by the petitioner from the respondent in the month of May, 2014,

which fact is not denied by the respondent.

5. As these developments were taking place following

the order passed on 09.5.2014, which order had attained finality

with it being not challenged by the respondent, the respondent

suddenly appeared before the Family Court and filed an

application for restoration of custody of child Gloria vide Ex.20.

This application indicated that Gloria was in the custody of the

petitioner, which was forcibly obtained by him from the

respondent, and, therefore, it was necessary that the custody of

child Gloria was restored to her mother, i.e. the respondent. Some

time was granted to the petitioner by the Family Court for filing of

his reply to this application. However, reply was not filed.

Therefore, the learned Judge of the Family Court allowed the

application reasoning that the petitioner, though permitted to take

necessary steps for admitting the child in the school at Devlali,

was specifically directed under the order dated 09.5.2014 that he

would not be getting the custody of the child. The learned Judge

based upon this reasoning further found that it became necessary

wp4666.14

for him to allow the application, which was also in the interest of

the child.

6. The reasoning so given by the learned Judge is not at

all based upon the record of the case. The learned Judge says

that the petitioner was specifically directed that the order dated

09.5.2014 would not give any custody of the child. Such direction,

however, is no where to be found in the order dated 09.5.2014.

The order dated 09.5.2014 records a finding that admitting a child

in a school situated at Deolali, Nashik, is in the best interest of the

child. The child was accordingly already admitted to Barnes

School, which is a residential school and was actually in the

custody of the school authorities for the purpose of her education.

She was not in the custody of the petitioner. Yet, the learned

Judge in his order dated 13.6.2014, which is impugned here, finds

that it is necessary and in the interest of the child to restore the

custody to his mother.

7. Earlier order dated 09.5.2014 attained finality as it

was not challenged by the respondent. In that order, the learned

Judge has found education in Deolali school is in the best interest

of the child. Now, having found that education in Deolali school

wp4666.14

is in the best interest of the child, the learned Judge ought to have

applied his mind to the fact as to how the best interest of the

child turned into worst interest as in such matters not the rights

but the welfare of the child is of the paramount consideration.

The learned Judge should have stated the reason as to how the

child's interests were suffering adversely by the child being in the

custody of the school authorities at Deolali and receiving

education there. The learned Judge has not done so.

8. It is also seen from the impugned order that the

learned Judge was, in fact, aware of the fact that the child was

not in the custody of the petitioner and was in the custody of the

school authorities. That is the reason why the learned Judge

observed that if the child was not in actual/physical custody of

the petitioner he would take all necessary steps to hand over

custody of the child to his mother and that he shall inform the

school authorities and allow the mother to take custody of the

child accordingly. The application vide Ex.20 had only sought a

direction to the petitioner to hand over custody of the child.

Therefore, the learned Judge ought to have decided first as to

whether the child was in the custody of the petitioner or not, and if

the answer was going to be in the negative, the learned Judge

wp4666.14

ought to have considered as to whether or not withdrawal of the

child from Deolali school would amount to deprivation of good

education to the child and whether this would adversely affect

the welfare of the child or otherwise.

9. The learned Judge of the Family Court while passing

the impugned order below application at Ex.20 has not

considered the aforesaid ig relevant aspects which are very

material from the view point of ensuring the welfare and keeping

best interest of the child. The impugned order, therefore, cannot

be sustained in law. It has been passed quite hastily. It deserves

to be quashed and set aside.

10. By this petition, one more order has been challenged

which has been passed on 10.7.2014 on an application filed by

the petitioner vide Ex.30 seeking direction to the respondent to

take the child to Barnes School and Junior College, Deolali, Nashik,

and put her there in a boarding school on the strength of

completion of process of admission by the petitioner.

11. In view of the observations made and findings

recorded above, the order dated 10.7.2014 can also be not

wp4666.14

sustained in law. This order deserves to be quashed and set

aside.

12. The writ petition deserves to be allowed. The matter

needs a fresh consideration by the learned Judge of the Family

Court, Nagpur.

13. In the result, writ petition is allowed and the matter is

remanded to the Family Court No.2, Nagpur, for fresh

consideration of the applications (Exs. 20 and 30) in accordance

with law. Parties are directed to appear before the Family Court

No.2, Nagpur, on 06.4.2016. Parties are at liberty to file their

reply to the respective applications, if they so desire, on or before

06.4.2016, in which case copy of the reply shall be furnished to

the respective parties. The applications shall be decided in

accordance with law within ten days from the date of appearance

of the parties before the Family Court No.2, Nagpur.

Rule is made absolute in above terms. No cost.

JUDGE

/TA/