Pravin S/O. Shripatrao Sheware vs Alka W/O. Pravin Sheware
2016 Latest Caselaw 770 Bom

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




                                                               
                                   Writ Petition No. 6117 of 2015

     Pravin S/o Shripatrao Sheware 
     Aged about 40 years, Occ. Service, 




                                                              
     R/o Plot No. 199, Pande Lay Out, 
     Khamla Road, Nagpur.                                                          .... Petitioner

        //   VERSUS   //




                                               
     Alka w/o Pravin Sheware 
     Aged about 40 years, Occ.  Service, 
                             
     Office at 76, Khanij Bhavan, 
     Sr. Dy. Director of Geology and Mining, 
     Cement Road, Shivaji Nagar, 
                            
     Nagpur.                                                                    .... Respondent
     ----------------------------------------------------------------------------------------------
     The petitioner in person 
     Shri A. A. Sambaray, Advocate for the respondent 
     ----------------------------------------------------------------------------------------------
      


                                               CORAM :  PRASANNA B. VARALE, J.

                                               DATE     :  21-3-2016.

     ORAL JUDGMENT 

Heard the petitioner in person and Shri Sambaray,

learned counsel for the respondent.

2. Rule. Rule made returnable forthwith.

3. Before I proceed to deal with the issue raised in the

petition and the controversy on which the petition revolves around,

it would be necessary to refer to certain facts. Initially, the

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petitioner himself was prosecuting the petition. On 18-1-2016,

Shri Rahul Dhande, learned counsel submitted before this Court

that he is instructed to appear on behalf of the petitioner and sought

some time to file power. Thereafter on some dates, the learned

counsel Shri Dhande represented the petitioner and on 29-2-2016,

the learned counsel appearing for the petitioner sought discharge

from the matter on the ground that the petitioner wanted to

prosecute the petition as a party-in-person. In view of this statement

made by the learned counsel Shri Dhande, the learned counsel was

discharged from the petition. At the request of the petitioner who

wanted to prosecute the petitioner on his own, matter was posted to

7-3-2016. The petitioner was heard on 17-3-2016. The hearing

could not be completed on that day and the matter was posted to

21-3-2016. Today, the party-in-person was heard at length. The

learned counsel appearing for the respondent was also heard. When

the learned counsel for the respondent finished his submissions, the

petitioner i.e. the party-in-person made a request to this Court that

time be granted to him as he wants to engage Senior Counsel. In

view of the fact which are referred to by this Court and in view of

the fact that the petitioner initially prosecuted the petition for some

time, then he engaged the counsel, thereafter, the learned counsel

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for the petitioner sought discharge and the petitioner himself

prosecuted the petition, made his submissions, though at times, the

party-in-person, the petitioner repeated his submissions, this Court

never prohibited the party-in-person from making the submissions

and then after hearing the learned counsel for the respondent, at

that point of time, the party-in-person made a request for time to

engage a counsel, this Court refused to grant any time to party-in-

person. Heard the party-in-person at length. The request at the

instance of the party-in-person for time to engage the counsel itself

was an after thought attempt just to prolong the petition herein.

This Court thus on the backdrop of the facts above referred found no

reason to allow the prayer of the party-in-person and as such, the

prayer of the party-in-person was rejected.

4. Now coming to the merits of the petition, the petitioner

challenges the order passed by the learned Judge, Family Court,

Nagpur dated 18-6-2012. The issue involved in the petition is about

the custody of the minor child. Marriage between the petitioner and

the respondent was solemnized on 19-6-2005. The petitioner is a

teacher whereas the respondent is the employee of the State

Government in the Department of Geology and Mining. Learned

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counsel for the respondent submits that the respondent is working as

Draftsman in the Department of Geology and Mining. Perusal of the

material placed on record shows that the marriage was solemnized

in year 2005. The couple was blessed with a child daughter,

naemly, Bhoomika. The perusal of the documents placed on record

further shows that there arose differences between the parties. The

parties were unable to maintain the matrimonial tie between them.

At one point of time, when the parties felt that it would not be

possible for the parties to maintain their matrimonial relation, the

parties by mutual agreement sought to dissolve the matrimonial tie

between them on certain conditions.

5. The grievance of the petitioner is the petitioner, who

was always considering the better prospects of his child with all

bonafide intentions sought the custody of the child. It is the

submission of the party-in-person, the petitioner that the respondent

- wife was just finding reasons to settle her score with the petitioner

and by misleading the Courts, the respondent sought the custody of

the child. It was further submission of the party-in-person, the

petitioner that even though certain orders were passed in favour of

the petitioner granting custody of the child fixing schedule by the

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Court, the respondent-wife made attempts to frustrate the orders

passed by this Court. The party-in-person, the petitioner further

submitted that the respondent-wife by lodging false report to the

police authorities created an ill impression about the petitioner and

the Court below swayed away with the impression created by the

respondent - wife and misdirected itself. It was the further

submission of the petitioner that at certain occasions, when the

Court granted custody of the child to the wife on certain conditions,

the respondent - wife committed breach of those conditions. The

Court below without considering these aspects passed the order

granting custody of the child to the wife. It was also the submission

of the party-in-person, the petitioner that the learned Family Court

could not have passed the order of custody in the proceedings which

were initiated by the petitioner seeking dissolution of the marriage.

On hearing the petitioner at length, this Court found that the

petitioner was emphasizing only on the ground that the respondent

by committing breach of the conditions and by showing material in

the nature of report lodged against the petitioner in the Police

Station misdirected the Court below. The Court below under the

influence of only the fact which was presented by the respondent

and without considering the aspect that the petitioner was seeking

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custody of child who is a minor and the petitioner was ready to

provide all the facilities including better education facilities to the

child, his request for custody of the child was rejected by the Court

below.

6. Per contra, Shri Sambaray, learned counsel for the

respondent submitted that the petitioner is only making allegations

after allegations and putting applications after applications without

there being an iota of truth. Shri Sambaray, learned counsel in his

detail submissions invited my attention to the various orders passed

by the Family Court. It was the submission of the learned counsel

that the learned Family Court not only considered the merits of the

applications on the backdrop of the submissions of the parties but

the learned Family Court also considered the paramount

consideration i.e. the better future of the child. Shri Sambaray,

learned counsel for the respondent then submitted that on the

contrary, the petitioner whose applications were decided on merits

and finding no ground for granting custody of the child to the

petitioner, the applications were rejected by the Courts below and

the petitioner only with a vindictive approach submitted applications

before the Court below not only making allegations against the

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respondent but also making certain submissions leading to raising

questions about the Judicial Officers. He submitted that the Court

below on the backdrop of wild and baseless allegations, sought

transfer of the matter to another Court. Shri Sambaray, learned

counsel then submitted that in an identical situation like

the order passed by the Court below which was a subject matter

in an appeal before this Court and the Division Bench of this

Court in clear and unambiguous words expressed that the

submissions made on behalf of the petitioner who was the appellant

before this Court cannot be appreciated, this Court also referred to

the exercise undertaken by the learned Family Court of ascertaining

the wish of the child itself. The Division Bench of this Court found

that in the exercise undertaken by the Family Court wherein the

child was interviewed by the Court and the child expressed her

desire not to go with the father i.e. the appellant before the Division

Bench found no fault with the order passed by the learned Family

Court. The Division Bench of this Court also observed that the

Family Court took stock of the situation like the academic

progress of the child and on that aspect also, when the Division

Bench of this Court found that the Family Court sought report

from the school wherein the child was studying i.e. Kendriya

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Vidyalaya and the school authorities reported that the child was well

in the academic course. Thus, the Division Bench of this Court

considered the aspect of all round development of the growing child

that too a minor child girl and the Division Bench by satisfying itself

that the learned Family Court left no stone unturned to see the

paramount consideration i.e. the better prospects of the child passed

the order. Shri Sambaray, learned counsel thus submitted that the

order impugned in the petition referred to various earlier orders and

the approach of the petitioner and on hearing the petitioner passed

the order that the order needs no indulgence or interference of this

Court.

7. On the backdrop of the submissions of the petitioner

who is party-in-person and the learned counsel Shri Sambaray for

the respondent and on going through the material placed on record,

I find considerable merit in the submissions of Shri Sambaray,

learned counsel for the respondent. Perused of the order passed by

the learned Judge, Family Court shows that the learned Judge,

Family Court referred to the backdrop of the application, namely,

the terms between the parties on finding that the parties were not in

a position to maintain their matrimonial tie, the term agreed

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between the parties of having visitation right, then the various

applications filed by the petitioner and ultimately on the utmost

important consideration i.e. the welfare of the child, the learned

Judge, Family Court arrived at a conclusion that the object of the

welfare of the child can only be achieved by granting custody to the

respondent-mother and the interest of the petitioner also can be

served by giving him an access to meet the child on the days fixed by

the Court. Though the party-in-person made the submission that the

respondent by misleading the Court sought the orders, I am unable

to accept the submission of the party-in-person, the petitioner. The

order impugned as well as the other orders seeking custody show

that the Court considered the submissions of the parties including

the petitioner and the respondent and passed the orders. Though

the petitioner again and again was making applications to the

learned Judge, Family Court and went to the extent of levelling

allegations against the Judicial Officer, the learned Judge, Family

Court, only considering the prospects and future of the child, passed

the orders. Though the party-in-person levels allegations against the

respondent and submitted that by influencing and misleading the

Courts, the respondent sought orders, the material placed on record

shows that the petitioner himself acted in, least to say, indecent

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manner. It would be necessary to refer certain aspects. When the

learned Judge, Family Court thought it fit to seek report from a third

party like a Commissioner appointed in the matter on the backdrop

of the request of the petitioner seeking an access to celebrate the

birthday of child, learned Court below so as to avoid the controversy

between the parties, fixed an independent place for celebrating

birthday of the child thus balancing the wish of both the parties. It

is useful to refer to the report of the Commissioner on that aspect

which throw light on the behaviour of the petitioner, the party-in-

person. As per the directions of the Court, the parties were present

in the office of the Commissioner. Though there was no order

passed by the Court granting custody of the child and only the Court

with a laudable object that the parties may have an opportunity to

celebrate the birthday of the child at a third place, permitted the

party to attend the place, namely, the Commissioner's office. The

petitioner was insisting the Commissioner and was forcing the

custody of the child so as to celebrate the birthday of the child at his

home. The petitioner not only forced to have custody of the child

but had the custody of the child without there having any order in

his favour and celebrated the birthday of child in his house and had

the audacity to place the photographs on record at his instance. This

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Court also observed from the perusal of the material that the

petitioner who may have a grudge and difference with the

respondent and can raise his grievance before the appropriate

forum, but the petitioner even dragged the senior officer of the

respondent - wife in a purely matrimonial dispute between the

parties. It will not be out of place to refer to the material which is

placed on record, namely, the report of the Senior Geologist,

Directorate of Geology and Mining, Nagpur to the Ambazari Police

Station, Nagpur. The Senior Geologist submitted to the Police

Station Authorities that the dispute between the petitioner and the

respondent is a personal dispute between the parties and officers of

the Geology Department has nothing to do with the personal dispute

of the parties but the petitioner made phone call to the senior officer

on his official phone and abused the officer in filthy language. It is

further stated in the report that the petitioner did not stop there but

the petitioner approached the residence of the senior officer and by

standing in front of the residence of the senior officer hurled abuses

for 10 minutes and gave threats of dire consequence to the senior

officer. The report further stated that the act of the petitioner

caused disturbance in the office administration and also disturbance

to the family life of the senior officer who is nothing to do with the

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matrimonial dispute between the petitioner and his wife.

8. It will be also interesting to note that in an identical

situation, this Court was dealing with the order passed by the Family

Court dismissing the petition filed by the petitioner under Section 6

of the Guardian and Wards Act, 1890. Before I proceed to the

observations of the Division Bench of this Court, it will not be out of

place to mention that the petitioner in his submission, submitted

that the order of the Division Bench was passed behind his back. It

was the submission of the petitioner that he engaged 'A counsel' and

instead the 'B counsel' worked out the matter. Thus, the petitioner

in a way submits that even the order of the Division Bench is not in

accordance with what he submitted before the Court. This Court,

least to say, is surprised and express its displeasure for the

submission of the petitioner on the aspect of the judgment and order

of the Division Bench of this Court. It will be interesting to note that

before the Division Bench of this Court, an attempt was made to

submit that the respondent - wife mislead the Court below and the

Court below erred in appreciating the evidence. The Division Bench

of this Court on the appreciation of the evidence found that no error

was committed by the learned Judge, Family Court in appreciating

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the evidence. On the contrary, it was the erroneous assumption and

presumption of the submission made by the appellant i.e. the

petitioner. This Court then referred to the exercise undertaken by

the Family Court. On ascertaining the wishes of the child, the

learned Judge, Family Court found that the child was not ready to

go with the father i.e. the petitioner herein. As referred to above,

the Division Bench of this Court also observed that the Family Court

took stock of the situation in respect of the academic progress of the

child. The Division Bench of this Court also referred to the fact that

in the interview, the Family Court found that the child express her

wish that she is not ready to go with her father. The child refers to

certain incidents in the interview. Thus, considering all these

aspects, on the backdrop of the order impugned in the petition, I

find no fault with the order impugned in the petition. Above all, if

the paramount consideration of the better prospects of the child is

gained and if the child herself expressed her wish not to go with the

father in an interview conducted by the learned Judge, Family Court,

the petitioner on only levelling allegations against the respondent -

wife cannot thrust his wish for seeking custody of child. The petition

thus being wholly meritless deserves to be dismissed and the same

is, accordingly, dismissed.

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                       Rule is discharged. 




                                                                

In view of the dismissal of the writ petition, pending

civil applications stand disposed of.

JUDGE

wasnik