Bombay High Court
Vijayanand S/O Shriram Wankhade vs Pravija D/O Vijayanand Wankhade, ... on 24 April, 2017
Bench: V.A. Naik
fca329.14.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FAMILY COURT APPEAL NO.329/2014
APPELLANT : Vijayanand s/o Shriram Wankhade,
Aged about 33 years, Occ. Service,
c/o Shriram Wankhade, Kaulkhed-Khadki Road,
Akola Tq. and Distt. Akola.
...VERSUS...
RESPONDENTS: 1. Pravija d/o Vijayanand Wankhade,
Aged about 12 years, minor by
Next friend Sahebrao Januji Khanderao,
r/o Kawthad, Tq. Sangrampur, Distt. Buldana.
2. Sau. Pratibha w/o Dilip Ajane,
Aged about 31 years, Occ. Service,
r/o Bhon, Tq. Shegoan, Distt. Buldana.
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Shri C.A. Joshi, Advocate for appellant.
Shri V.G. Wankhede, Advocate for respondents
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CORAM : SMT. VASANTI A NAIK, AND
MRS. SWAPNA JOSHI, JJ.
DATE : 24.04.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
By this Family Court Appeal, the appellant challenges the
judgment of the Family Court, dated 4.4.2014 rejecting an application
made by the appellant for custody of his minor daughter Pravija.
Few facts giving rise to the appeal are states thus :-
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The marriage between the appellant - Vijayanand and the
respondent no.2 - Sau. Pratibha was solemnized on 20.5.2003. Pravjia,
the respondent no.1, was born from the wedlock on 22.2.2004. The
marriage between the appellant and the respondent no.2 was dissolved by
a decree of divorce dated 17.6.2006 in Hindu Marriage Petition
No.44/2005. The appellant as well as the respondent no.2 have remarried
and both have issues from the second marriage. In the petition filed by
the appellant for custody of his minor daughter, it is pleaded that he has
great love and affection for Pravija and desires that she should remain in
his custody. It is pleaded by the appellant that he wishes to give quality
education to Pravija and to provide all necessities to her for her overall
development. It is pleaded that the respondent no.2 is busy as she has
remarried and has two daughters from the remarriage. It is pleaded that
the respondent no.2 would not be able to look after Pravjia properly. It is
pleaded that Pravija was stationed at village Kawthad in Sangrampur
Taluka, where there was no proper facility for education in English
Medium. It is pleaded that the parents of the respondent no.2 are old and
they do not have the capacity to bring up minor Pravija who resides with
them. It is further pleaded that his wife from his remarriage is ready to
look after Pravija and his mother would also take care of Pravija. It is
pleaded that though he had made attempts to meet Pravija, the
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respondent no.2 did not permit him to meet her and threatened him that
she would involve him in false criminal cases.
The respondent no.2 filed the written statement and denied
the claim of the appellant. The respondent no.2 denied the allegations
that were levelled against her and it was pleaded that with a view to
avoid payment of maintenance to Pravija, the appellant had filed the
petition for her custody. It is pleaded that certain amount was payable by
the appellant to Pravija towards maintenance. It is pleaded that Pravija
was studying in the 4th standard at the relevant time and was securing
'A' Grade in the examinations. It is pleaded that proper education was
provided to Pravija and since the appellant does not have any love or
affection for Pravija, his petition was liable to be dismissed.
On the aforesaid pleadings of the parties, the Family Court
framed the issues and on an appreciation of the evidence tendered by the
parties on record, by the judgment dated 4.4.2014, rejected the petition
filed by the appellant for custody of Pravija.
Shri Joshi, the learned Counsel for the appellant submitted
that since Pravija has now attained the age of 13 years and since it would
be necessary, considering her age, for her to be in the company of her
mother, the appellant would not persist in claiming the custody of Pravija
at this stage. It is stated that within a few years Pravija would attain the
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age of majority. It is, however, stated that since Pravija is the first
daughter of the appellant, the appellant may be permitted to have access
to Pravija. It is stated that the appellant resides at Satara and is ready to
come to Khamgaon or Akola to meet Pravija.
Shri Wankhede, the learned Counsel for the respondents
submitted that there is no difficulty in permitting the appellant to meet
the respondent no.1 - Pravija once in every month but the access should
be granted to the appellant only on the condition that the appellant
deposits the arrears of maintenance that is payable to Pravija. It is stated
that since the appellant has not regularly paid the maintenance amount a
direction may not be issued against the respondent no.2 to provide the
access of Pravija to the appellant.
In the circumstances of the case, since the appellant has
given up the prayer for custody of Pravija, it would not be necessary to
frame the points for determination in this Family Court Appeal and decide
the issue in regard to the custody of the minor. A small request is made on
behalf of the appellant, who is undisputedly the father of Pravija, that the
appellant may be permitted to meet Pravija at least once in a month as it
would be necessary to create some bond between Pravija and the
appellant, as the relationship between them is of the daughter and father.
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It would be necessary in the circumstances of the case to
direct the respondent no.2 to bring Pravija to the Family Court at Akola
on the third Saturday of every month at 11:00 a.m. so that Pravija could
initially meet the appellant for at least two hours in the Family Court. The
time of two hours could be extended in future with the permission of the
parties, if at all Pravija is desirous of meeting her father for more than two
hours every month. While directing the respondent no.2 to provide access
to Pravjia it would be necessary to ensure that the appellant clears the
arrears of maintenance that is liable to be paid to Pravija. If the appellant
is desirous of meeting Pravija she being his daughter, it would be the duty
of the appellant to pay the maintenance amount to her.
Hence, for the reasons aforesaid, the Family Court Appeal is
partly allowed. Though we confirm the judgment of the Family Court, the
respondent no.2 is directed to bring Pravija to the Family Court at Akola
at 11:00 a.m. on the third Saturday of every month so that the appellant
could meet Pravija for a period of two hours in the presence of the
Counsellor in the Family Court. During each of the visits of the appellant
to the Family Court at Akola on the third Saturday of every month, the
appellant should deposit an amount of Rs.3,000/- towards arrears of
maintenance payable to Pravija till the appellant clears the amount of
arrears of maintenance that is due and payable to Pravija. If the appellant
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fails to deposit the said amount in the Family Court at Akola on the date
of his meeting with Pravija on the third Saturday of every month, the
respondent no.2 is free not to provide the access to Pravija in the next
month after the default. In case the appellant is not in a position to come
to Family Court, Akola as stated in this judgment/order in any month, he
should inform the respondent no.2 in that regard in advance so that the
respondent no.2 and Pravija are not required to travel from Khamgaon to
Akola unnecessarily. It is needless to mention that the travelling charges
of Pravija and the person accompanying her from Khamgaon to Akola
should be paid by the appellant to Pravija on each date of the meeting.
Order accordingly. No costs.
JUDGE JUDGE
Wadkar
