Sou. Sushama W/O Natraj Hirekhan vs Natraj S/O Bhagwan Hirekhan
2016 Latest Caselaw 2851 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      




                                                             
                               NAGPUR BENCH, NAGPUR.




                                                            
     WRIT PETITION NO.2691 OF 2016


     Sou. Sushama w/o Natraj Hirekhan,
     Aged about 34 years, 




                                               
     Occupation - Housewife, 
     R/o C/o Ramesh Sadhu Borkar, 
                             
     Gopiwada, Tahsil & District Buldhana.                            ....       PETITIONER
                            
                         VERSUS


     Natraj s/o Bhagwan Hirekhan,
     Aged 44 years, 
      


     Occupation - Service, 
     R/o Rahul Nagar, Somalwada, Wardha
   



     Road, Nagpur, District - Nagpur.                                 ....       RESPONDENT


     ______________________________________________________________





               Shri J.M. Shamkuwar, Advocate for the petitioner, 
                 Shri N.B. Bargat, Advocate for the respondent.
      ______________________________________________________________

                                   CORAM : Z.A. HAQ, J.

DATED : 15 JUNE, 2016.

th

ORAL JUDGMENT :

1. Heard Shri J.M. Shamkuwar, Advocate for the petitioner

and Shri N.B. Bargat, Advocate for the respondent.

2. Rule. Rule made returnable forthwith.

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3. It is undisputed that marriage between the petitioner and

respondent was solemnized and Amita @ Gloria, aged about 6 years is

born out of the wedlock. That the relationship between the petitioner

and the respondent could not continue and the petitioner had filed

H.M.P. No.90/2010 before the Civil Court, Bhandara during the

pendency of which mediation proceedings were undertaken and terms

of settlement were worked out on 06-09-2014. Condition No.3 of the

terms of settlement shows that the petitioner had denied to handover

custody of Amita @ Gloria to the respondent and liberty was granted

to the respondent to file separate proceedings, if he desired for custody

of Amita @ Gloria. It is undisputed that the petitioner and respondent

are living separately, the petitioner is residing at Bhandara and the

respondent is residing at Nagpur.

4. The respondent has filed petition under Section 12 read

with Section 25 of the Guardians and Wards Act before the Family

Court, Nagpur praying for custody of Amita @ Gloria. The respondent

has prayed that till the decision of the petition, access be granted to

the respondent to meet Amita @ Gloria. In this petition, the present

respondent had filed an application (Exhibit No.13) seeking permission

to admit Amita @ Gloria in Barnes School and Junior College, Deolali,

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Nashik. The application (Exhibit No.13) was allowed by the order

dated 09-05-2014 and according to the present respondent, he had

completed the formalities of admission of Amita @ Gloria in Barnes

School and Junior College, Deolali, Nashik.

The present petitioner had filed an application (Exhibit

No.20) before the Family Court contending that the present

respondent had taken the custody of Amita @ Gloria on the strength of

the order passed by the Family Court on 09-05-2014 but his

whereabouts were not known. With these allegations the present

petitioner sought directions of the Court against the present

respondent to handover the custody of Amita @ Gloria to the present

petitioner. The Family Court passed an order on the application

(Exhibit No.20) on 13-06-2014 directing the present respondent to

handover the custody of Amita @ Gloria to the present petitioner. The

Family Court recorded that if the physical custody of Amita @ Gloria

was not with the present respondent, he shall inform the school

authorities to allow the present petitioner (mother) to take custody of

the child. The Family Court further recorded that if the respondent

failed to comply till 16-06-2014, letter be issued to the school

authorities directing them to handover the custody of Amita @ Gloria

to the present petitioner (mother).

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The present respondent filed an application (Exhibit

No.30) on 18-06-2014 stating that pursuant to the order passed by the

Family Court on 09-05-2014, he had paid an amount of Rs.1,23,050/-

towards fees and expenses for admission of Amita @ Gloria at Barnes

School and Junior College, Deolali, Nashik. The present respondent

prayed that the petitioner be directed to take Amita @ Gloria to the

Barnes School and Junior College, Deolali, Nashik and to put her in the

boarding school. The Family Court passed an order on 10-07-2014

rejecting the application (Exhibit No.30).

5. The present respondent had filed Writ Petition

No.4666/2014 before this Court challenging the orders passed by the

Family Court on application (Exhibit No.20) and on application

(Exhibit No.30). Writ Petition No.4666/2014 is decided by this Court

on 01-04-2016. The orders passed on application (Exhibit No.20) and

on application (Exhibit No.30) came to be set aside and the Family

Court was directed to decide the applications afresh. The Family Court

has passed an order dated 12-04-2016 rejecting the application

(Exhibit No.20) and allowing the application (Exhibit No.30) and

directing the present petitioner to take Amita @ Gloria to Barnes

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School and Junior College, Deolali, Nashik in the first week of May,

2016 for admitting her in Barnes School and Junior College, Deolali,

Nashik. The petitioner being aggrieved by this order, has filed this

petition.

6. It is undisputed that Amita @ Gloria is studying in

Maharishi Vidya Mandir Bela, Bhandara. The Maharishi Vidya Mandir

is affiliated to Central Board of Secondary Education. The progress

report issued by Maharishi Vidya Mandir shows date of birth of Amita

@ Gloria as 30-09-2009. This fact is not disputed. The present

petitioner is residing at Bhandara and Amita @ Gloria is residing with

the present petitioner. The present respondent is residing at Nagpur.

In these facts, whether it would be proper for the Court to direct the

petitioner (mother of minor child) to put Amita @ Gloria in Barnes

School and Junior College, Deolali, Nashik, is the point which is

required to be considered.

7. The learned Advocate for the respondent has submitted

that Barnes School and Junior College, Deolali, Nashik is one of the

reputed institution of the country and Amita @ Gloria is an intelligent

and smart girl and if her career is channelized properly, it will be good

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for her future. The efforts of the respondent are appreciable and it

cannot be said that he is not right in for making efforts to see that

Amita @ Gloria takes education in one of the best institution.

8. However, in the present case, it is unfortunate that the

petitioner and the respondent i.e. mother and father of Amita @ Gloria

are not able to arrive at unanimity and take decision regarding

admission of Amita @ Gloria in Barnes School and Junior College,

Deolali, Nashik. It is the case of the petitioner (mother) that Maharishi

Vidya Mandir is affiliated to Central Board of Secondary Education and

is also very good school. It is undisputed that Amita @ Gloria is

undergoing education in Maharishi Vidya Mandir since last two

academic years i.e. 2014-2015 and 2015-2016.

In these facts, in my view, it would not be proper for the

Court to endorse the decision of the present respondent (father) of

keeping minor Amita @ Gloria in a boarding school though

comparatively it may be a better school. The decision of the petitioner

(mother of Amita @ Gloria) cannot be faulted with and superseded by

a judicial decision. The petitioner (mother of minor Amita @ Gloria) is

competent to take decision in respect of her daughter. There is

nothing on record to show that the attitude of the petitioner is hostile

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towards Amita @ Gloria. Though the learned Advocate for the

respondent submitted that the petitioner is not taking proper care of

Amita @ Gloria and the information received from Maharishi Vidya

Mandir show that Amita @ Gloria was absent from the school during

April 2014 onwards, it cannot be said that the petitioner is neglecting

her duties and not giving sufficient time to Amita @ Gloria as her

progress report filed on record shows excellent performance of Amita

@ Gloria.

9. In the facts of the case, in my view, the order passed by

the Family Court on application (Exhibit No.30) is unsustainable. To

sub-serve the ends of justice, following order is passed :

             (i)       The impugned order is set aside. 





             (ii)      The application (Exhibit No.30) filed by the respondent is

                       rejected. 





             (iii)     As the custody of Amita @ Gloria is admittedly with the

present petitioner since 2014, the same shall continue with

the petitioner till appropriate orders regarding custody are

passed by the Family Court in Petition No. D-56/2013.

The application (Exhibit No.20) is disposed

accordingly.

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                        (iv)     If   occasion   arises,   the   respondent   is   granted   liberty   to




                                                                        

reiterate his request for admission of Amita @ Gloria in

some good school from 5th Standard onwards.

(v) The petition is allowed in the above terms. In the

circumstances, the parties to bear their own costs.

                                        ig                                       JUDGE
                                      
    adgokar