Lachhmanna S/O Irranna ... vs Anil Shriram Marsetwar
2017 Latest Caselaw 3967 Bom

0407 A.O. 52/2014                               1                         Judgment

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


                 APPEAL AGAINST ORDER NO. 52/2014 


1]     Lachhmanna S/o Irranna Shetpalliwar,
       Aged bout 60 years, Occu: Agriculturist,
2]     Ku. Amruta Anil Marsetwar,
       Aged about 10 years, Occu: Education,
3]     Krushikesh Anil Marsetwar,
       Aged about 9 years, Occu: Education,
       Nos.2 and 3 are minor through their
       natural guardian Maternal grandfather
       i.e. appellant no.1.
       All R/o. Mandava, Tq. Kinvat,
       Distt. Yavatmal.                                    APPELLANTS

                                .....VERSUS.....

Anil Shriram Marsetwar,
Aged about 40 years, Occu: Agricultural,
R/o. Dehni, Tq. Digras, Distt. Yavatmal.                    RESPONDE NT


Shri N.S. Deshpande, counsel for appellants.
Shri A.S. Deshpande, counsel for respondent.


                 CORAM  : DR. SMT. SHALINI PHANSALKAR-JOSHI, J.

               DATE     : JULY 04, 2017.


ORAL JUDGMENT :  

Whether the appellant - the maternal grandfather or

0407 A.O. 52/2014 2 Judgment

the respondent-natural father should have the custody of two minor

children, aged 17 years and 13 years respectively, is the question for

consideration raised in this appeal, which is directed against the

judgment and order dated 03/06/2014 passed by District Judge-1,

Darwha, District - Yavatmal in M.J.C. No. 12/2010.

2] The said petition was filed by the respondent herein

under the provisions of Section 25 read with Section 7 of the

Guardian and Wards Act (hereinafter referred to as "Act" for

convenience) for the custody of his two minor children. By the

impugned judgment and order, the trial court allowed the said

application and directed appellant no.1 herein to hand over the

custody of minor children to respondent. However, it is a matter of

record that as on today the custody of the minor children is with

their maternal grandfather-appellant no.1 Lachhamanna

Shetpalliwar.

3] Facts, which may be relevant, for the purpose of

deciding this appeal, can be stated as follows :-

The marriage of respondent with Ramakanta, daughter

0407 A.O. 52/2014 3 Judgment

of appellant no.1, was performed in the year 1997. From the

wedlock, Ramakanta had given birth to two children, by name,

Amruta and Krushikesh. In the year 2010, Ramakanta died on

27/07/2010 at her maternal house at Mandava, Tah. Kinvat,

District - Yavatmal, as she was suffering from Cancer. At the time of

her death, Amruta was studying in 6 th standard at Babnaji Maharaj

High School Dehni, whereas Krushikesh was studying in 3rd

standard at Gurukul Convent (C.B.S.E.) School at Digras.

4] As per the case of respondent, as he was in the mental

shock on account of the death of his wife, on the request of

maternal uncle of the minor children, he allowed the children to be

kept in the house of maternal grandfather, and as a result, since the

death of Ramakanta, the children are residing in the house of the

appellant no.1. It is the grievance of the respondent that on several

occasions he went to bring the children back to his house, so that

they can continue their studies in their school, however they were

not sent by the appellant no.1. Respondent was, therefore,

constrained to file the application before the trial court for getting

custody of the minor children. It was stated by him, that he was

0407 A.O. 52/2014 4 Judgment

financially sound and able to maintain and look after the children.

Moreover, village Mandava, where the children are residing with

the appellant no.1, is a small village and is having only one primary

school upto 4th standard only. No convent educational facilities are

available at that village. Respondent is having ambition to make his

children as Doctor and Engineer and as educational facilities are not

available at the village, where the children residing with the

appellant no.1, respondent claimed the custody of minor children

on the ground that their welfare will be look after better by him, he

being their natural father..

5] This application came to be resisted by the appellant

no.1 contending inter alia that respondent was addicted to alcohol,

he was an uncultured person, he has not treated his wife with love

and affection, even he did not provide her proper medical

treatment, and hence, there was least possibility of his looking after

the minor children properly. It was contended that merely because

respondent is the natural father of the minor children, custody of

the children should not be handed over to him, as the court has to

consider the welfare of the minor children, which has to be of

0407 A.O. 52/2014 5 Judgment

paramount importance.

6] In support of his case, respondent adduced his own

evidence. He also examined two witnesses, by name, Shriram

Punjaji Marsetwar and Rameshwar Ramnarayan, whereas appellant

no.1 herein examined himself and also adduced the evidence of two

witnesses, by name, Bhumanna Kolhewar and Vishwanath

Nadewar, to prove the second marriage of respondent. Both the

parties relied upon various other documentary evidence to prove

that they are financially in a better off position to look after the

welfare of the minor children.

7] The trial court, in order to satisfy itself about the

wishes of the minors, had interaction with both the minors on

29/11/2013 in his chamber. At that time, Amruta was studying in

9th standard, wheres Krushikesh was studying in 6th standard. In his

interaction with the minor children, both Amruta and Krushikesh

flatly refused to stay with respondent-father on the ground that

their father was beating them; he was not treating them properly.

Hence they were not even willing to talk with the respondent.

 0407 A.O. 52/2014                                 6                          Judgment

8]              Learned   trial   court,   however,   after   appreciating   the

evidence on record, held that though the wishes of the minor

children are important, they cannot be the deciding factor. It was

held that respondent being the natural father of the minor children,

the welfare of the children lies in residing with the respondent. As

regards the wishes expressed by the minor children, it was further

observed by the trial court as both the minors were in the custody of

the present appellant no.1 since the death of their mother, there

was probability of appellant no.1 tutoring them. Learned trial court

held that, in the absence of any evidence showing that respondent

was addicted to liquor or any other vices and considering that

respondent was the natural father, trial court granted custody of

both the minor children to respondent by allowing his application.

9] While challenging this order of learned trial court,

submission of learned counsel for appellant no.1 is that, having

regard to the age of minor children, the trial court should have

given sufficient weighttage to their wishes. If such grown up

children do not want to reside with the father, it was not proper on

the part of learned trial court to hand over their custody and that

0407 A.O. 52/2014 7 Judgment

too, when they are happily settled in the house of appellant no.1. It

is submitted that both the children are now quite grown up as

Amruta has completed the age of 17 years, whereas Krushikesh has

completed the age of 15 years, and in such situation, if the children

on their own volition do not want to reside with the respondent-

father, as he has already performed second marriage and also

having one son from second marriage, the interest and welfare of

the minor children lies in the fact that appellant no.1 should

continue to have their custody instead of disturbing that custody at

this stage.

10] Per contra, learned counsel for respondent has

submitted that, respondent being the natural father of the minor

children, he is not only entitled to have their custody, but welfare of

the minor children also lies in residing with their father, who is

having sufficient means to maintain them. It is submitted that the

fact of second marriage of the respondent or his having one child

from the second marriage, cannot be sufficient to deny him the

custody of his own children, when he can bestow equal love and

affection to the children from his first wife also. Thus, according to

0407 A.O. 52/2014 8 Judgment

learned counsel for respondent, when the trial court has already

given the valid reason for handing over the custody of the minor

children to the respondent, this court should restrain himself from

interfering in the said order.

11] It need not be stated that, the issue of custody of minor

children is always a complex and vex issue, entangled in the web of

emotions and sentiments and it is always the minor children, who

are the worst sufferers in the battle for their custody amongst their

custodians. Sometimes it is a battle between husband and wife and

at other times it is the father versus the grandfather-mother's father,

claiming rights over the children. Whether the rights of the parties,

who are parents, custodians or guardians should prevail or the

welfare of the minor children? This question is, though raised in

every litigation, in view of the legal provision declaring father-the

natural guardian of a minor child, this issue is no more res integra.

As observed by Three Judge Bench of Hon'ble Supreme Court in it's

judgment in the case of Rosy Jacob -Vs- Jecob A. Chakramakkal,

1973(1) Supreme Court Cases 840, "Absolute right of parents over

the destinies and the lives of their children has, in the modern changed

0407 A.O. 52/2014 9 Judgment

social conditions, yielded to the considerations of their welfare as

human beings so that they may grow up in a normal balanced manner

to be useful members of the society and the guardian court in case of a

dispute between the parties relating to custody of the minor children,

is expected to strike a just and proper balance between the

requirements of welfare of the minor children and the rights of their

respective parents over them".

12] It needs to be stated that, in the course of the time, this

principle has crystallized into the law that for determining the

question as to whom the custody of the minor children should be

awarded, the first and paramount consideration or one may call it,

as the only consideration, is the welfare and interest of the child

and not the rights of the parents under a statute. Therefore, now it

is not for the court to strike the balance between requirements of

the welfare of minor children and the rights of the respective

parents over them, but as held in the recent judgment of the

Hon'ble Apex Court in the case of Mausami Moitra Ganguli -Vs-

Jayant Ganguli, (2008) 7 Supreme Court Cases 673, the first and

the paramount consideration is the welfare and interest of the child

0407 A.O. 52/2014 10 Judgment

and not the rights of the parents under a statute. Indubitably, the

provisions of the law pertaining to the custody of a child contained

in either the Guardians and Wards Act, 1890 (Section 17) or the

Hindu Minority and Guardianship Act, 1956 (Section 13) also hold

out the welfare of the child as a paramount consideration. In fact,

no statute, on the subject can ignore, eschew or obliterate the vital

factor of the welfare of the minor.

13] However, what can be in the best interest and for

welfare of the minor child, that has to be decided in the background

of the relevant facts and circumstances. Each case has to be decided

on its own facts, and hence reliance placed on the decided cases,

can hardly serve as binding precedents, insofar as the factual

aspects of the case are concerned.

14] As held by the Hon'ble Apex Court in the above

decision of Mausami Ganguli, "it is true that father is presumed by

the statute to be better suited to look after the welfare of the child

being normally the working member and head of the family, however,

that cannot be the sole determining factor. In each case the court has

0407 A.O. 52/2014 11 Judgment

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 again that 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".

15] The law is now well settled that if the children are

sufficiently mature to express their intelligent preferences, then the

court should give due weighttage to their wishes also. In the instant

case, admittedly both the children are now sufficiently mature and

one may call they are even at the verge of crossing minority.

Amruta has already completed the age of 17 years as she is born on

26/05/2000, therefore she is on threshold of becoming major,

whereas Krushikesh is born on 08/08/2001, and therefore he has

also already completed the age of 15 years. Both the children are

studying. Amruta is studying in First Year - B.A., whereas

Krushikesh is studying in 10th standard. Therefore, both the children

0407 A.O. 52/2014 12 Judgment

are brought up quite well. They are mature. I had interaction with

them in my chamber in order to ascertain their wishes, and in my

interaction I found that, both of them are sufficiently mature to

express their intelligent preference. Both of them were categorical

in their desire and wish to remain in the house of appellant no.1

and to be in his custody. Both of them were confirm about it and

also in the refusal to reside or to be in the custody of respondent,

their father. The reason assigned by both of them was that their

father, respondent has performed second marriage within 15 days

from the death of their mother. He is also having a son from the

second marriage, and hence they do not want to reside with their

father, and they would prefer to continue to reside with their

maternal grandfather, the appellant no.1 herein. Both of them

stated that they are happy to reside with their maternal

grandfather. They, even, are not ready to meet their father.

16] It is pertinent to note that when the trial court had

interaction with them, in order to ascertain their wishes, at that

time also both the children had expressed strong wishes to stay with

their grandfather and refusal to reside with the father. At that time

0407 A.O. 52/2014 13 Judgment

also, both of them stated that they want to continue to reside with

their grandfather, who was looking after them quite well. It may be

true that at that time, both the children were comparatively minor

in the sense that Amruta was of the age of 12 to 13 years and

Krushikesh was younger to her. Hence, the trial court might have

presumed the possibility of both the children being tutored by

appellant no.1, as they were in the custody of appellant since the

year 2010 i.e. immediately after the death of their mother.

However, in the year 2017 also i.e. after the death of their mother

in the year 2010, they are still insisting to remain in the custody of

their grandfather by stating that they are happy to reside with him

and they do not want to go to the house of respondent. Now at this

stage, they are sufficiently mature, and hence the possibility of their

being tutored or influenced by the appellant no.1, cannot be

accepted.

17] It is pertinent to note that despite the order passed by

the trial court of handing over their custody to respondent, they

have not gone to the house of respondent and continued to reside in

the house of appellant. According to them, they are very happy in

0407 A.O. 52/2014 14 Judgment

the house of appellant and very reluctant to go to the house of

respondent. The reason assigned by them that as their father has

performed second marriage within 15 days from the death of their

mother and he is also having one son from the second marriage, in

my opinion, one has to consider the said reason from their point of

view, their perspective, their feelings of hurt as within 15 days of

the death of their mother, their father has got second wife. It is

sufficient to create a distance on emotional level between them and

respondent. It is also sufficient to create some apprehension in their

mind of not being treated properly by their father and his second

wife. Such apprehension at the age at which they are at present, is

difficult to be removed.

18] Hence from this aspect of emotional alienation, it

would not be in the interest of minors to remove them from custody

of their grandfather and hand them over to the father, with whom

they have lost that emotional bonding. Moreover, now it is a matter

of merely some few months or one or two years. As regards Amruta,

she will be major in the next year in May, whereas Krushikesh will

become major within 2 ½ years. Therefore, if the children are

0407 A.O. 52/2014 15 Judgment

residing with their grandfather since more than 7 years, considering

the aspect of their stability and a sense of continuity, at this stage, it

would not be proper to disturb their settled life and change their

custody from grandfather to father, merely because the father may

have better rights to their custody. If the paramount consideration

for deciding the custody of minor children is the welfare of the

children, then in the instant case, it follows that the welfare of the

minor children lies in continuing their custody with grandfather, in

whom they are having faith, confidence and also love and affection.

As held by the Hon'ble Apex Court in the case of Mausami

Ganguly, the stability and security of the child is an essential

ingredient for a full development of child's talent and personality.

Hence, shifting these minor children from the familiar surroundings

of the house of their grandfather and of their school, to the house of

respondent, where his second wife and the son are there, whom

they do not know, is definitely going to affect their stability, peace

of mind and a sense of security at this crucial age, when they are

adolescent, studying in the important educational years of their life,

the First Year of Graduation and 10 th standard respectively.

Therefore, it has to be held that the custody of these minor children

0407 A.O. 52/2014 16 Judgment

be with their grandfather and once they become major, they will be

in a position to take their own decisions as to whether they want to

stay with their father or otherwise.

19] Learned counsel for appellant no.1 has also, in this

respect, placed reliance on the latest judgment of Hon'ble Apex

Court in the case of Jitender Arora and others -Vs- Sukriti Arora

and others, (2017) 2 Supreme Court Cases (Civ) 347, wherein the

Hon'ble Apex Court was pleased to hold that "When the child is

intellectually and emotionally mature enough to understand and

decide whose custody would be in her best interest, her preference

should be given due weight and court should desist from passing order

for custody contrary to her will, which may give rise to tormenting

and disturbing experince in her mind".

20] Here in the case as stated above, both the children are

happy in the custody of their grandfather. Both of them, as stated,

are intellectually and emotionally mature enough to understand and

decide whose custody would be in their best interest. Hence, their

preference needs to be given due weight and this court should

0407 A.O. 52/2014 17 Judgment

desist from passing any order for custody contrary to their wishes,

which may give rise to tormenting and disturbing experiences in

their life.

21] Hence looking at it from any angle, inference is

inevitable that the best interest and welfare of both the children lies

in permitting the appellant no.1, their grandfather to retain their

custody. Therefore, this appeal needs to be allowed and the

impugned order passed by the trial court of handing over their

custody to respondent, needs to be quashed and set aside.

22] However, having said everything, the fact remains that

respondent, being the natural father, should also get the right of

visitation. It is necessary that bond of love and affection should

re-develop between the minor children and their natural father.

Therefore, it is desirable, keeping in mind even the welfare of the

minor children, that they should visit their father, which will help in

creating that necessary bond of love and affection between them

and father, and which will help them to trace their roots also.

During the pendency of this appeal also, such visitation rights were

0407 A.O. 52/2014 18 Judgment

given to the respondent and it was directed that appellant shall

permit the respondent to visit children at Mediation Centre, Pusad

on every 1st and 3rd Saturday between 11:00 a.m. to 2:00 p.m.

23] Both the learned counsel for appellant and respondent

submit that this arrangement may be continued hereinafter also.

However, having regard to the fact that both the children are now

taking higher education, hence their studies should not be affected,

the visitation right can be restricted to only 1st Saturday in a month.

24]             Accordingly appeal is allowed.



25]             The impugned order passed by the trial court handing

over custody of minor children to respondent, is quashed and set

aside.

26] Both the minor children are to continue in the custody

of appellant no.1.

27]             However, appellant shall permit the respondent to visit





 0407 A.O. 52/2014                             19                         Judgment

the minor children at Mediation Centre in Pusad on every 1 st

Saturday in between 11:00 a.m. to 2:00 p.m.

28] Appeal is disposed of in above terms.

29] As the appeal is disposed of, C.A. No. 62/2014 pending

herein, having become infructuous, it also stands disposed of.

JUDGE

Yenurkar