Bombay High Court
Ramesh S/O Shriram Gulhane vs Prabhakar S/O Gangadhar Bijwe And ... on 9 August, 2016
Bench: Prasanna B. Varale
1 AO3.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
APPEAL AGAINST ORDER NO. 3 OF 2016
APPELLANT : Ramesh S/o Shriram Gulhane,
Aged about 35 years, Occu. Agriculturist,
R/o Near Kholapuri Gate, Daryapur,
Tq. Daryapur, Dist. Amravati.
- VERSUS -
RESPONDENTS : 1] Prabhakar S/o Gangadhar Bijwe,
ig Aged 60 years, Occu. Labour.
2] Santosh S/o Prabhakar Bijwe,
Aged 32 years, Occu. Labour.
3] Sau. Kusum W/o Prabhakar Bijwe,
Aged 58 years, Occu. Labour
4] Sudhakar S/o Pabhakar Bijwe,
Aged 30 years, Occu. Labour.
5] Ku. Rita D/o Prabhakar Bijwe,
Aged about 18 years, Occu. Household,
6] Ayush S/o Ramesh Gulhane,
Aged about 6 years, Occu. Student,
7] Ku. Akansha D/o Ramesh Gulhane,
Aged about 3 years,
Respondents 6 & 7 represented through
respondent no.1. All residents of Kholapur,
Athavdi Bazar, Tq. Bhatkuli, Dist. Amravati.
-------------------------------------------------------------
Mr. Tejas S. Deshpande, Advocate for the appellant.
Mr. S. S. Thorat, Advocate for the respondent nos. 1 to 7.
------------------------------------------------------------
CORAM : PRASANNA B. VARALE, J.
th
DATED : 09 August, 2016.
2 AO3.16.odt
ORAL JUDGMENT
Heard. ADMIT. Considering the controversy involved in
the appeal, which relates to custody of minor children, this appeal is
heard finally with the consent of the learned counsel for the parties.
2] By this Appeal against Order, the appellant is challenging
the order passed by the learned Ad-hoc District Judge-1, Achalpur,
dated 10.09.2015 in Misc. Civil Application No. 14 of 2015, thereby
dismissing the application filed by the appellant seeking custody of his
two children.
3] Mr. Deshpande, the learned counsel for the appellant
submitted that the appellant, who is an agriculturist, owns and
possesses 1.5 acres of land at village Kholapur, Tq. Bhatkuli, Dist.
Amravati. The marriage of the appellant with the daughter of
respondent no.1, namely Sarika was solemnized on 10.05.2007. the
couple was blessed with two children i.e. son Ayush and daughter
Akansha. Sarika, the wife of the appellant, expired on 22.09.2013, as
she was suffering from high fever and dengue. It is further submitted
by the learned counsel for the appellant that after death of Sarika, the
respondent no.1 and other matrimonial relations approached the
3 AO3.16.odt
appellant and requested him that they would like to celebrate
Deepawali festival along with their grand children Ayush and Akansha
and requested the appellant for taking away the children with them.
The appellant, under bona fide belief that the grand parents are willing
to celebrate the festival with grand children, permitted the respondent
no.1 and other matrimonial relations to take away the children with
them. After waiting for a reasonable period and after making requests
to the respondent no.1, it was found that there was no positive response
from the respondents for handing over the children after Deepawali
festival celebration. The appellant, left with no choice but to approach
the Court, for seeking custody of the children.
4] The appellant herein had submitted an application before
the learned District Judge-1, Achalpur, under the provisions of the
Guardian and Wards Act. It was submitted in the application that the
appellant was taking due care of his family including the wife and the
children. It was submitted in the application that on 22.09.2014, the
wife of the appellant/applicant expired due to her ailment. The
appellant admitted the children in one English school and was looking
after the children personally as well as with the help of other family
members. It was submitted in the application that son Ayush was
4 AO3.16.odt
studying in English primary school at Daryapur in KG-I for the academic
session 2012-2013. Then it was submitted in the application that on the
pretext of celebrating Deepawali festival, the children were permitted to
go with the grand parents, but in spite of the assurance given, there was
no positive response for bringing back the children to the appellant. It
was submitted that on the contrary, when the appellant made request,
threats were given to the appellant of lodging criminal cases against
him. When the appellant along with his elder brother had visited the
house of respondent no.1 on 18.11.2013 for bringing back the children,
the respondents hurled abuses and the appellant and his brother were
driven out of the house with threat of life. It was further submitted that
the appellant is the father of the children and being father is he is
natural guardian of the children. It was submitted in the application
that the appellant is a farmer and having sufficient means to take care
of the education and welfare of his children. The application was
opposed by the respondents by raising a ground that the application is
untenable and by additional submissions, it was submitted that the
applicant /appellant was ill-treating and harassing his wife Sarika. The
application was further opposed on the ground that Sarika suffered
ailments due to continuous ill-treatment at the hands of the appellant.
It was submitted in the reply that the respondents are the grand parents
5 AO3.16.odt
and maternal relations of the children and they were taking proper care
of the children. It was alleged in the written submissions that the
appellant was addicted to alcohol consumption and as such, he would
not be in a position to take care of the children. It was also submitted
that mother of the appellant is in her advanced age and there is no
other member in the family of the appellant to take care of the children.
5]
The learned Ad-hoc District Judge, Achalpur, on
consideration of the rival contentions of the parties, arrived at a
conclusion that as the appellant performed second marriage and that
being the biggest hurdle for the welfare of the children and finding no
favour with the applicant, dismissed the application.
6] Mr. Deshpande, the learned counsel for the appellant in his
detailed submissions led critical attack on the order impugned in the
present appeal. It was the submission of the learned counsel that the
order passed by the learned Judge is not only contrary to the settled
legal position, but is also in contrast to the factual aspects. The learned
counsel for the appellant submitted that the appellant, who is the father
of the children, to claim the custody of the children submitted sufficient
material to establish the claim that the appellant is financially sound
and was taking due care of the education as well as well being and
6 AO3.16.odt
welfare of his children. The learned counsel submitted that son Ayush
was admitted in one English school at Daryapur. The learned counsel
submitted that the application was opposed by raising superficial and
artificial grounds. The learned counsel by inviting my attention to the
statements made in the reply to the application at the instance of the
respondents, submitted that it is alleged that the appellant is
responsible for the death of his wife. It is alleged that the appellant is
an alcoholic person. The learned counsel submitted that all these
allegations are just for the sake of raising them, but there is absolutely
no material placed on record in support of the same. The learned
counsel further submitted that on the contrary, the learned Ad-hoc
District Judge, in clear and unambiguous words observed that there is
no documentary proof on record for coming to the conclusion that
Sarika was subjected to ill-treatment and harassment at the hands of the
appellant. It is further observed that the medical certificate of cause of
death, produced on record, clearly show that Sarika died due to natural
death. The learned counsel then submitted that when there was
absolutely no ground raised nor material placed on record to submit
that the appellant performed second marriage, the learned Ad-hoc
District Judge only on the basis of oral submissions made at the stage of
arguing the matter that the applicant has performed second marriage
7 AO3.16.odt
with a lady having one issue from her earlier husband, dismissed the
application. The learned counsel further submitted that the learned Ad-
hoc District Judge ought to have considered the paramount
consideration namely the welfare of the children while deciding the
application.
7] The learned counsel for the appellant submitted that the
appellant is financially sound so as to take care of the education and
welfare of his children. The learned counsel by placing on record a
copy of the application seeking maintenance submitted that the
proceeding was filed at the instance of children Ayush and Akansha
through the respondent no.1 before the learned Judicial Magistrate,
First Class, Bhatkuli, Amravati. The learned counsel submitted that for
claiming maintenance, it was submitted in the application that the
appellant is the owner of agricultural land admeasuring 3 He and 87 R
and apart from his agricultural income, the appellant is engaged in the
business of sale and purchase of animal husbandry and earns additional
income of Rs.20,000/- per month. It is stated in the maintenance
application that Ayush is studying in 2 nd standard and his annual fees is
Rs.5250/- . Apart from the school fees, the other expenses such as
tuition fees, medical treatment and daily needs, are @ Rs.5000/- per
8 AO3.16.odt
month. Thus, maintenance of Rs.10,000/- per month is claimed for the
children. The learned counsel submitted that thus, on one hand the
respondents in reply to the application submitted that they are
financially sound to take care of the children and on the other hand, the
application is submitted seeking maintenance showing their financial
disability.
8]
The learned counsel for the appellant placed reliance on
the judgment of this Court in Appeal Against Order No. 5 of 2015, dated
21.07.2016 (Raju @ Yunus S/o Ahmed Punjani .Vs. Mohd. Imran Isani
S/o Noor Mohd. Isani) in support of his submissions.
9] Per contra, the learned counsel appearing for the
respondents vehemently submitted that the welfare of the children is
possible only if custody of children is granted to the respondents i.e.
respondent no.1 -grand father and other matrimonial relations. It is
submitted by the learned counsel for the respondents that Sarika was
subjected to continuous ill-treatment at the hands of the appellant. The
learned counsel further made a bold submission that as the appellant
himself was responsible for death of Sarika, there is an apprehension of
threat of life to the children at the hands of the appellant. The learned
9 AO3.16.odt
counsel for the respondents further submitted that as the appellant
performed second marriage during the pendency of the application and
this fact came to the knowledge of the respondents at the fag end of the
proceedings, it was orally submitted before the learned District Judge
that the appellant has performed second marriage and accordingly by
taking note of the said fact, the learned District Judge rightly dismissed
the application. When this Court made a pointed query to the learned
counsel for the respondents whether any criminal case or at least a
report is lodged against appellant alleging that the appellant is
responsible for death of his wife Sarika, the learned counsel submitted
that no such report was lodged and further submitted that it was the
responsibility of the police authorities to lodge such report. The learned
counsel further submitted that as the appellant performed second
marriage during pendency of the application, the said fact was not
incorporated in the written submissions. The learned counsel for the
respondents, on these grounds prayed for dismissal of the appeal.
10] It is now settled position of law, guided by the numerous
judgments of this Court as well as the Hon'ble Apex Court that in the
matter of custody of children, the Court must look into the most
important aspect of paramount consideration i.e. welfare of the
10 AO3.16.odt
children. In the present case, it is not in dispute that the appellant is
the father and as such natural guardian of the children i.e. respondent
nos.6 and 7. Son Ayush is 8 years of age and daughter Akansha is 5
years of age. The appellant in his application before the learned District
Judge has specifically submitted that he is the owner of agricultural
land and he admitted his son Ayush in a English primary school at
Daryapur in KG-I class for the academic session 2012-13. Akansha is
not yet admitted in the school. The appellant submitted that death of
Sarika was natural death due to high fever and dengue. The learned
counsel for the respondents, though vehemently submitted that it was
the appellant who is responsible for death of Sarika as Sarika was
subjected to continuous ill-treatment and harassment on account of
dowry, there is nothing placed on record to show that any report was
filed for the death of Sarika alleging foul play against the appellant. As
stated above, even a pointed query was made to the learned counsel for
the respondents in this regard, to which the learned counsel replied that
no such report was lodged and it was for the police authorities to take
steps for lodging report. It is interesting to note that on the backdrop of
these allegations, the learned Ad-hoc District Judge, who had an
occasion to peruse the material and assess the same, found that a
medical certificate was placed on record showing that Sarika Ramesh
11 AO3.16.odt
Gulhane died due to natural death. There is also no material placed on
record in support of the allegation that the appellant is an alcoholic.
The learned District Judge, observed thus :-
"7. While arguing the matter, the learned advocate
for respondents pointed out that, applicant has
performed his second marriage with a lady who is
having one issue from her earlier husband. ........".
The learned Judge further referred to the judgment of the Apex Court in
case of Shyamrao Maruti Korwate .vs. Deepak Kisanrao Tekam, reported
in (2010) 10 SCC 314 and observed that :
".....The Hon'ble Supreme Court in this case found the
second marriage of his father of the child as biggest
hurdle in appointing him as guardian and so found the
welfare of his minor only on the custody of his maternal
grandfather and further observed that considering the
facts in the present case coupled with the ratio led down
in the case law cited by the applicant as well as the case
law of the Supreme Court, he had to decide the petition
with paramount consideration that the welfare of the
child and their comforts, the applicant is the natural
guardian therefore, his ties of the affection with his
child could not be disregarded. However, due to the
second marriage by applicant and having one son to his
second wife is the main hurdle to handover custody of
non-applicant nos.6 and 7 to the applicant though he is
12 AO3.16.odt
natural guardian of the children."
11] The observations of the learned District Judge are clearly
unsustainable. To arrive at a conclusion that the second marriage of the
appellant is the hurdle for handing over custody of the children to the
applicant, the learned Ad-hoc District Judge ought to have relied on
certain material presented on record. Merely because it was submitted
in the course of arguments that the appellant performed second
marriage, the learned Ad-hoc District Judge ought not to have jumped
to that conclusion. As referred to above, when the application was filed
at the instance of the appellant, in the written submissions filed by the
respondents, no such ground of second marriage performed by the
appellant was raised. The said ground was raised at the stage of final
arguments. As such, there was no opportunity for the appellant to
counter the submission or to place any material to counter the
submission of second marriage and the learned Ad-hoc District Judge
arrived at that conclusion assuming that performance of second
marriage by the appellant is an admitted fact. The learned Ad-hoc
District Judge thus committed a grave error in jumping to the
conclusion. The learned Ad-hoc District Judge also committed an error
by observing that there was a desire expressed by Ayush and the same
was to be respected. The learned District Judge adopted the course,
13 AO3.16.odt
firstly which was not proper as it reveals from the order that the learned
District Judge made queries with Ayush in open Court. The learned
Judge then observed that Ayush was bold enough and intelligently
submitted that he does not want to go to house of his father because his
grandmother, grandfather, sister of his mother and brother of his
mother were taking his proper care and maintaining him and his sister
neatly. The learned Judge observed that 'he further told that there is a
danger to his life from the applicant'. Though, the learned Judge
further observed that he got verified whether such statement regarding
danger to his life is whether tutored by his grandfather or anybody else
and Aayush vehemently said "No". It is least to say was an error
committed by the learned District Judge. The age of the child is hardly
eight years. It is difficult to come to a conclusion that a child of eight
years of age, could have gauged the aspect of danger to life. This fact
also assumes importance on the backdrop of the material namely, till
the death of mother of the children, the children were residing with the
appellant. Son Ayush was admitted in primary class of one English
school. After the death of mother i.e. wife of the appellant, the children
were taken in custody by the grand parents and other maternal
relations. In such a situation, there was hardly any question of the
children, more particularly son Ayush facing any apprehension or
14 AO3.16.odt
danger to his life. Thus, the learned Ad-hoc District Judge, on this
aspect also, in my opinion, has committed a grave error.
12] It seems that the learned District Judge in stead of
considering the application in a legal premise, permitted himself to
swayed away by emotions. This can be seen from the observations of
the learned District Judge in paragraph 9 of the impugned judgment,
which reads thus :
"9. ..... Mother's mother, mother's father, mother's
brother and mother's sister are taking proper care of the
children and therefore, the children are not feeling that
a vacuum is created in their life due to death of their
mother. It is said in Hindu culture "AAI MARO MAVSHI
JAGO". The meaning of the above sentence is, sister of
mother may have equal love and affection like mother
with the children of her sister."
This clearly show that the learned Judge was swayed away with an
emotional outburst instead of looking to the matter in a legal and
logical premise.
13] The material placed on record further show that there is
considerable merit in the submission of the learned counsel for the
appellant that the welfare and well being of the children would
15 AO3.16.odt
certainly be taken care of in proper and positive way by the appellant as
the appellant is financially in sound position to provide the basic
facilities to his children such as, good schooling, education and other
daily needs, medical assistance, whereas the respondent no.1, who
himself has submitted an application for and on behalf of the children
seeking maintenance from the appellant, in that application submitted
that the appellant is financially sound to bear the burden of education
fees etc. for the children. The learned counsel for the appellant was
also justified in placing reliance on the judgment of this Court in Appeal
Against Order No. 05 of 2015, dated 21.07.2015. It would not be out of
place to refer to paragraph 10 of said judgment, in which this Court has
referred to the observations of the Hon'ble Apex Court in the case of
Mausami Moitra Ganguli Vs. Jayant Ganguli [(2008) 7 SCC 673] while
dealing with the issue in question. The Apex Court observed thus :-
"19. The principles of law in relation to the custody of a
minor child are well settled. It is trite that while
determining the question as to which parent the care and
control of a child should be committed, the first and the
paramount consideration is the welfare and interest of the
child and not the rights of the parents under a statute.
Indubitably the provisions of law pertaining to the
custody of a child contained in either the Guardians and
Wards Act, 1890 (Section 17) or the Hindu Minority and
16 AO3.16.odt
Guardianship Act, 1956 (Section 13) also hold out the
welfare of the child as a predominant consideration. In
fact, no statute, on the subject, can ignore, eschew or
obliterate the vital factor of the welfare of the minor.
20. The question of welfare of the minor child has
again to be considered in the background of the relevant
facts and circumstances. Each case has to be decided on its
own facts and other decided cases can hardly serve as
binding precedents insofar as the factual aspects of the
case are concerned. It is, no doubt, true that father is
presumed by the statutes to be better suited to look after
the welfare of the child, being normally the working
member and head of the family, yet in each case the Court
has to see primarily to the welfare of the child in
determining the question of his or her custody. Better
financial resources of either of the parents or their love for
the child may be one of the relevant considerations but
cannot be the sole determining factor for the custody of
the child. It is here that a heavy duty is cast on the Court
to exercise its judicial discretion judiciously in the
background of all the relevant facts and circumstances,
bearing in mind the welfare of the child as the paramount
consideration."
14] Considering all the above referred facts, in my opinion, the
learned Ad-hoc District Judge has committed an error in dismissing the
application filed by the appellant. The order impugned in the present
17 AO3.16.odt
appeal is clearly unsustainable and needs to be interfered with.
Resultantly, the Appeal against Order is allowed. The order, dated
10.09.2015 passed by the learned Ad-hoc District Judge-1, Achalpur in
Misc. Civil Application No. 14 of 2015 is quashed and set aside. The
Misc Civil Application No. 14 of 2015 seeking custody of the children, is
allowed.
The appeal is disposed of in the aforesaid terms.
JUDGE
Diwale
18 AO3.16.odt
C E R T I F I C A T E
"I certify that this Judgment/order uploaded is a true and
correct copy of original signed Judgment/Order."
Uploaded By : Parag P. Diwale, P.A. Uploaded on: 11.08.2016
