Bombay High Court
Sachin Ashok Patil vs Tejaswine Sachin Patil on 31 October, 2017
Bench: T.V. Nalawade
FCA Nos. 1 & 7/14
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
FAMILY COURT APPEAL NO. 1 OF 2014
WITH
CIVIL APPLICATION NO. 577 OF 2014
Dr. Mrs. Tejeswini d/o. Gangadharrao
Pathrikar w/o. Sachin Patil,
Age 30 years, Occu. Service,
Resident of C/o. Dr. Satyajit Pathrikar,
209, Nandanvan Colony,
Aurangabad. ....Appellant.
(Ori. Respondent)
Versus
Sachin s/o. Ashok Patil,
Age 36 years, Occu. Government
Service, Resident of "Anand-Vihar"
Beed Road, Osmanabad, Taluka
and District Osmanabad. ....Respondent.
(Ori. Applicant)
Mr. V.D. Salunke & Mr. M.S. Taur, Advocates for appellant.
Mr. Hemant Surve h/f. Mr. Abhay Ostwal, Advocate for respondent.
WITH
FAMILY COURT APPEAL NO. 7 OF 2014
Sachin s/o. Ashok Patil,
Age 36 years, Occu. Government
Service, Resident of "Anand-Vihar"
Beed Road, Osmanabad, Taluka
and District Osmanabad. ....Appellant.
Father
Versus
Tejeswini w/o. Sachin Patil,
Age 30 years, Occu. Service,
Residing at : 209, Nandanvan Colony,
Aurangabad. ....Respondent.
Mother
Mr. Hemant Surve h/f. Mr. Abhay Ostwal, Advocate for appellant.
Mr. V.D. Salunke and Mr. M.S. Taur, Advocates for respondent.
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FCA Nos. 1 & 7/14
2
CORAM : T.V. NALAWADE AND
ARUN M. DHAVALE, JJ.
DATED : October 31, 2017
JUDGMENT : [PER T.V. NALAWADE, J.]
1) Both the appeals are filed against judgment and decree
of Hindu Marriage Petition No. A-440/2012, which was pending in
Family Court, Aurangabad. The proceeding was filed by husband
under the provision of section 13 (1) (i-a) of Hindu Marriage Act,
1955 for divorce and one more relief like the custody of child was
claimed. The Trial Court has granted the relief of divorce, but the
relief claimed of the custody of minor son is refused by the Trial
Court. The wife has challenged the decision by which divorce is given
by filing present Family Court Appeal No. 1/2014 and the husband,
original petitioner has challenged the remaining part of the decision
by which relief of custody of minor son is refused. Both the sides are
heard.
2) In short, the facts leading to the institution of the appeal
can be stated as follows :-
The relevant incidents with dates in the present matter
are as under :-
(i) 19.2.2006 - date of marriage.
(ii) 23.1.2007 - son by name Aryan was born.
(iii) 30.8.2011 - the date from which the parties started living
FCA Nos. 1 & 7/14
separate
(iv) 15.11.2011 - the date of proceeding filed by wife under the
provisions of Domestic Violence Act in which interim relief like
custody of minor child was claimed.
(v) 16.11.2011 - F.I.R. given against husband.
(vi) 7.4.2012 - the date of petition filed for divorce.
3) In the Trial Court written statement was filed by wife.
But from July 2013 the wife and her advocate did not turn up before
Family Court. The husband filed evidence on affidavit. Order of no
cross was made as nobody turned up to cross examine the husband.
The husband then filed evidence on affidavit of three witnesses. The
wife did not turn up to cross examine these witnesses also. No cross
order was made in respect of these three witnesses and ultimately,
the petition came to be decided on 10.1.2014. In view of these
circumstances, the wife could have filed proceeding for setting aside
exparte decree in Trial Court itself in view of provisions of Order 17,
Rule 2 of Civil Procedure Code ('CPC' for short) read with Order 9
Rule 13 of CPC. She preferred not to file such proceeding and she
filed the appeal on 22.1.2014. Thus, the appeal was filed within
prescribed period of limitation from the date of decree. But, in view
of the aforesaid provisions of CPC, it is necessary for the wife,
appellant to make out case of 'sufficient cause'.
FCA Nos. 1 & 7/14
4) In the appeal, it is contended that after filing of evidence
of three witnesses on affidavit, on 3.10.2013, the copies of affidavits
were not supplied, not served on the advocate of wife but on
24.10.2013 order of no cross was made in respect of these
witnesses. It is the contention of wife that her counsel did not inform
her about the progress made in the proceeding and the dates fixed
by the Court. It is her contention that from July 2013, no specific
date was given to her and her advocate had promised to inform the
date, if any, fixed by the Court. It is her contention that on
19.1.2014 at about 6.15 p.m. the husband contacted her and
informed that he was going to perform second marriage. It is her
case that only due to such information given by the husband, she
learnt about the decision and she filed the appeal. It is her
contention that she is entitled to contest the matter as the relief of
divorce was claimed against her. It is her contention that the Trial
Court has not considered her contentions made in the written
statement and proper issues were not framed by the Trial Court.
5) The Trial Court has considered the pleadings and the
evidence given by husband and his witnesses as unrebutted.
6) The husband and wife are highly educated persons. The
FCA Nos. 1 & 7/14
wife has completed Post Graduate course in Medicine and the
husband has passed UPSC Exams and he has been working as IPS
Officer since 2006. He was, however, selected after marriage for the
post. The husband has given specific instances, which according to
him, involved cruel treatment given to him by the wife. The incidents
right from the period of honeymoon till the last date when the
parties started living separate from each other are given. The
husband had already appeared in UPSC Main Exam and the wife was
doing MBBS Course at the time of marriage. It was arranged
marriage. The incidents quoted are as follows :-
(i) After marriage, they went to Kerala for honeymoon. It is
the contention of husband that at Kerala, during the period of
honeymoon, his right forearm was injured and it was a fracture
injury. According to him, he was advised to take antibiotics and pain
killer. According to him, he was expected to return on the next day
from Kerala as he had sustained such injury. It is his contention that
on the previous night he woke up from sleep as he felt that the wife
was pressing injured hand by using force. It is his contention that he
somehow freed his hand from the grip of his wife and it was cruel
treatment of the wife.
The wife has admitted that the hand of the husband had
fracture injury, but she has denied that she was pressing it to cause
FCA Nos. 1 & 7/14
pain to husband. It is her case that she was only applying medicine
like Volini. It is the case of husband that wife was against taking the
sedatives and she was feeling that a man who takes sedatives is a
mad man. It is specific contention of wife that she first time realized
in Kerala during honeymoon period that the husband had sustained
fracture injury already prior to the marriage. It is her contention that
due to reaction of husband during that period, she realized that he
was not that sensitive and he did not like her. Thus, there was some
dispute over this incident and that is admitted.
ii) The husband has quoted the incident which took place in
Delhi in April 2006. The husband was to face interview as he had
cleared UPSC Main Exam and the interview was in afternoon session.
It is the case of husband that he had taken the wife with him and
also his parents to have some moral support, but the wife started
quarreling with him on the day of interview and she started passing
sarcastic comments about weak mind set of husband. In the
evidence, he has mentioned something more about the quarrel like
insistence of wife to take her for shopping on that day.
iii) It is the case of husband that after his selection, he was
expected to go for training to Masori from 29th August 2006 and at
that time, the wife insisted that he would leave her with her parents
FCA Nos. 1 & 7/14
and not with the parents of husband. It is the case of husband that
he then realized that the wife was harbouring strange antipathy
towards his parents. It is the contention of husband that on
23.1.2007 son Aryan was born, but after birth of son only he was
welcomed to the house of parents of wife and his parents were
shunned.
iv) It is the case of husband that in December 2008, after
training was over, he was posted in Buldhana district, Maharashtra
and at that time, the wife was doing some Course in Aurangabad.
According to him, he kept on visiting Aurangabad to see the wife on
Saturday and Sunday and he used to give money for the expenses.
It is his case that he was then posted in Nanded district. According
to him, in December 2009 they decided to perform 'Javal' ceremony
of son Aryan and for that they decided to go to Tirupati. It is his
contention that during this visit of Tirupati, he realized that wife was
giving humiliating treatment to his parents. According to him, as he
was to return to Nanded he arranged for separate car for his wife
and his parents and they were to catch flight at Chennai for Pune. It
is his contention that during this travel, and even in the presence of
diver, the wife kept on insulting and humiliating his parents.
On the other hand, it is the contention of wife that during
trip of Tirupati, she realized that the parents of the husband and
FCA Nos. 1 & 7/14
husband are very rude. It is her contention that during that period
she was humiliated and insulted and her brother was also insulted. It
is her case that during cohabitation she was made to wash clothes
and husband used to insist that she should not use brush for
washing clothes. It is her contention that when after one occasion,
he noticed that she was using brush, he assaulted her and gave
severe bating to her. It is her case that as habit the husband used to
give abuses to her. She has denied that she had hurt and humiliated
the parents of the husband. It is her contention that she had taken
proper care of the parents of the husband and her son.
v) It is the contention of husband that he got posting in
Mumbai in April 2010 and the wife was doing M.D. in Mumbai. Till
that time, wife was living in Aurangabad with her parents. It is the
case of husband that as he was posted in Mumbai he suggested to
wife that they should live together in Mumbai and accordingly, they
started cohabiting in Mumbai from June 2010. It is the case of
husband that when the son was admitted in school of Mumbai, he
realized that proper care of son was not taken at Aurangabad and he
was using abusive language inadvertently and casually. It is the
contention of husband that to take proper care of son he brought his
parents to Mumbai. It is the case of husband that he is the only
issue to the parents and so, it was his responsibility to take care of
FCA Nos. 1 & 7/14
his parents. It is his case that in spite of these circumstances, the
wife was avoiding his parents and she was not adjusting with his
parents. It is his case that the wife was not taking proper care of his
issue also.
vi) It is the case of husband that on 26.8.2011 he was
expected to go to Nagpur in connection with his duty and at 16.30
hours when he went to the residential place to pack his clothes, he
found that the keys of cupboard in which clothes were kept were not
available and wife had taken keys with her to Haffkine Institute
where she was working. It is his contention that he somehow went
to Nagpur and from there, he was required to go to Delhi with
Hon'ble Governor. It is his case that when he returned on 30.8.2011
he made inquiry about the keys of cupboard and told about the
inconvenience caused to him, the wife became angry, she picked up
quarrel and she all of a sudden started packing all her belongings. It
is his contention that she packed her belonging in eight bags with
intention to return to her parents. It is his contention that he
requested to keep atleast Aryan with him to which she agreed. It is
his contention that he provided a car with driver to the wife for going
to Aurangabad, but she did not go to Aurangabad and she went to
unknown location from Pune. It is his contention that he tried to
contact the wife, but she stopped receiving his calls.
FCA Nos. 1 & 7/14
On the other hand, it is the case of wife that by mistake
she had taken the keys of cupboard with her to her workplace. It is
her contention that on other occasion husband raised that issue
unnecessarily and picked up quarrel. It is her contention that by
raising that issue the husband gave her severe beating. It is her
case that then the husband forced her to pack her luggage by saying
that he was to reach her to Aurangabad. It is her case that he and
son Aryan were taken in a car by saying that he would reach them to
Aurangabad, but at Panvel, he got down from the car with Aryan and
he virtually compelled her to go alone in that car to Aurangabad. It
is her case that she was feeling helpless and so, she used that car
up to Pune where her brother was called to take her from Pune to
Aurangabad. Thus, wife admits that they started living separate due
to some dispute.
vii) It is the case of husband that after 30.8.2011 the wife
hardly contacted him or son Aryan and in September 2011, she
came to Mumbai with her uncle and other relatives who are
influential persons in politics and they met Hon'ble Governor of
Maharashtra as he was posted in the office of Hon'ble Governor at
the relevant time. It is his contention that they made complaint to
Hon'ble Governor against him to pressurize him and when he did not
succumb to the pressure, they returned back to Aurangabad. It is his
FCA Nos. 1 & 7/14
contention that his son Aryan was attending school at the relevant
time. It is his contention that on 7.11.2011 only to harass him and
to defame him, the wife again met Hon'ble Governor with her
relatives to make complaint against him. It is his contention that he
allowed her to see Aryan, but at his residential place wife created a
show and ultimately she returned to Aurangabad with his relatives.
viii) It is the case of husband that he had sent his son to
village Bahe, District Sangli, the native place with his mother for few
days as school was closed due to holidays. He has contended that on
25.11.2001 he received summons of District Court through Police
Inspector of Malbar Hill Police Station, Mumbai and there was interim
order to hand over the custody of Aryan to the wife. It is his
contention that he informed the police and respondent that the son
was at Bahe. According to him, only to malign his image, the wife
took press conference outside of the premises of Rajbhavan, Mumbai
and her interview was shown live on T.V. channels like Star Maza and
IBN Lokmat. It is his contention that it was a planned action of the
wife and he suffered lot due to the interview of wife. It is his
contention that the wife sent SMS to various news agencies only to
tarnish his image and to create sensation about the issue. It is his
contention that on the next day, the wife again aired her interview
by giving interview outside the office of Commissioner of Police of
FCA Nos. 1 & 7/14
Mumbai and that again tarnished his image. According to him, due
to this conduct of wife, he started feeling humiliated and defamed
and those incidents may also affect his career.
7) It is the case of wife that when she was asked to return
to Aurangabad, she contacted the maid servants from the house of
the husband to make inquiry about Aryan and she was informed that
Aryan was constantly crying as his mother was not with him. It is
her contention that she also learnt that husband had given beating
to Aryan. It is her contention that due to this conduct of the
husband, she took the help of her family friends like Advocate Shri.
Kakade and other close relatives and they tried to convince the
husband to behave well. It is her case that she wanted to see her
son, but the husband was not allowing her to see the son. It is her
case that due to this conduct and approach of husband, she was
required to approach Hon'ble Governor of Maharashtra State. It is
her case that she was only hoping that Hon'ble Governor will give
proper understanding to husband, but the conduct of the husband
did not improve. It is her case that she was required to see the
Hon'ble Governor again and on that occasion, due to conduct of the
husband, she gave written application to Hon'ble Governor as the
husband was working directly under the office of Hon'ble Governor.
It is her contention that only due to these attempts, meetings with
FCA Nos. 1 & 7/14
Hon'ble Governor, the husband allowed her to see Aryan, but that
was for 5-10 minutes at his residential place. It is her case that on
that occasion also husband showed violent behaviour and due to
that all of them returned to Aurangabad. It is her contention that
due to aforesaid conduct and approach of the husband, she was
required to file proceeding under Domestic Violence Act. It is her
contention that District Court gave order of interim temporary
custody of Aryan in her favour. It is her case that she was afraid that
the husband will use his position and post and will not obey the
order of District Court and so, she took the order as Hamdast order
and she went with police to Rajbhavan for serving the order on
husband. It is the case of wife that at that time husband crated
some show and he made arrangement to send Aryan on that day to
Bahe, District Sangli and that was done by him only to avoid
compliance of the order. It is her case that as she was not allowed to
see son and she could not get the custody of son, she was in tears
and when she was coming out of Rajbhavan, the reporters
approached her and put some questions to her. It is her case that
due to the aforesaid conduct of husband, she was required to tell
about the atrocities which she was facing from the husband. It is her
case that she had no intention to publish the issue, but the reporters
published her interview on T.V. channels. She admitted that on the
next day of that incident (on 26.11.2011), she approached the office
FCA Nos. 1 & 7/14
of Police Commissioner, Mumbai to give application and on that day
also, some reporters who were present outside the office of Police
Commissioner put some questions to her which she answered and
that was also published on T.V. channels. It is her case that she had
no intention to give publicity to the dispute which was there between
her and husband.
8) It is the case of husband that on inquiry he realized that
wife has filed a proceeding under Domestic Violence Act bearing No.
1725/2011 and Sessions Court had granted exparte interim relief
regarding custody of Aryan against him. It is contended that after
realizing this, he went to Aurangabad with Aryan. According to him,
after reaching Aurangabad, he realized that wife had approached
police and in Chavani Police Station also she had made complaint
against him, making allegations of harassment against him. It is
contended that this time also T.V. channels picked up story and it
was aired on T.V. channels at the instance of wife. It is his contention
that due to this conduct of wife, he handed over custody of son to
wife. It is contended that only when he handed over the custody of
issue, she withdrew the complaint which was filed in the police
station. It is his contention that he wanted to see that no harm is
caused to his son and so, he handed over the custody of son to wife.
It is his case that wife had promised to withdraw the matter filed
FCA Nos. 1 & 7/14
under Domestic Violence Act, but that matter is not withdrawn by
her. It is the contention of husband that by such conduct the wife
has also caused harassment and irreparable damage to his image
and she has harassed his parents also. It is his contention that the
aforesaid conduct of the wife amounts to cruelty and so, he is
entitled to get divorce from the wife.
9) It is the case of wife that when she failed to get the
interim custody of Aryan in spite of getting the order from District
Court and as there were instances of aforesaid nature, she filed
report against the husband in Chavani Police Station, Aurangabad. It
is her case that only after giving of such report by her, the persons
from both the sides sat together and settled the dispute. It is her
case that the husband then agreed to resume cohabitation by taking
the wife to place of his service. It is her case that under the
settlement, the husband handed over the custody of son to her and
he agreed to take her back to the matrimonial house within 15 days.
It is her case that she kept on waiting, but the husband did not take
her back to matrimonial house. It is her case that husband then
gave notice of divorce and he filed divorce proceeding. It is her case
that she is still willing to resume cohabitation and her act does not
amount to cruelty.
FCA Nos. 1 & 7/14
10) The sum and substance of the written statement filed by
the wife shows that it is her case that the husband is hot tempered,
he and his father had bad habit of taking sedatives which she did not
like. The husband was suffering from some skin disease like
epidermosalysis bullosa simplex. She has admitted that she wanted
the custody of son and she had approached Hon'ble Governor atleast
on two occasions to make complaints against the husband. She has
also admitted that atleast on two occasions, she gave interview to
press reporters and on both the occasions, the press reporters
published her interview and in the interview, she had described the
so called atrocities of the husband.
11) The aforesaid pleading shows that many of the incidents
described by the husband are admitted by the wife. The pleading
shows that she was interested in getting the custody of child and
ultimately she got the custody after filing report by her to police.
She admits that she had given interview on two occasions to
reporters and her interviews were aired on many T.V. channels. The
husband and his three witnesses have given evidence on the
incidents described by the husband in the petition. The father of the
husband has filed affidavit as evidence to describe the insulting
treatment given by the wife, the present appellant to him and to his
wife. The father of the husband was working on gazetted post, in
FCA Nos. 1 & 7/14
Income Tax Department and he retired from that department.
12) The driver, who has filed affidavit for husband, has
described two incidents in which the wife had quarreled with the
husband and when the wife had lastly left the company of husband
for returning to her parents house. One Dadasaheb Yewale, who is
working as maid servant in the house of parents of husband has filed
affidavit which is in respect of insulting treatment which wife was
giving to the husband and her parents. He has given evidence by
filing affidavit that the wife quarreled virtually with everybody from
the house as also with outsiders.
13) As the appeal is filed against the judgment and decree,
which is virtually exparte, this Court is not expected to go in to the
merits of the matter in detail. However, the aforesaid admitted
circumstances cannot be ignored even in a proceeding like present
one. For getting the relief in the present matter, which will be
setting aside the decree of divorce and remanding the matter to the
Trial Court, the wife is expected to show that there was 'sufficient
cause' for her for not remanding present in the proceeding in the
Trial Court for cross examination of the petitioner/husband and his
witnesses and also for giving evidence. It is already observed that
from July 2013, the wife and her advocate did not turn up to the
FCA Nos. 1 & 7/14
Court. The matter came to be decided in January 2014 i.e. after
about five months from the first date on which the wife remained
absent. Even when the order of no cross was made in respect of the
evidence given by husband, no steps were taken and there is no
mention about it in the present appeal memo also. The reasons
given by the wife in the appeal memo that her advocate did not
inform about the dates is not convincing and plausible. As per the
procedure, the date is conveyed not only to the counsel, but also to
the parties. In any case, when it was original proceeding, it was
necessary for the wife to remain present in the Court. She was living
in Aurangabad with her parents. The proceeding for divorce was
initially filed in Mumbai by the husband, but due to the proceeding
filed by the wife in this Court for transfer of the matter from Mumbai
to Aurangabad, the matter was transferred to Family Court,
Aurangabad. That was done for the convenience of wife. Considering
the apprehension of the husband that wife may play delaying tactics,
direction was also given by this Court to Trial Court to see that the
matter is expeditiously disposed of, as early as possible. In spite of
these circumstances, the wife did not turn up to contest the matter
for more than five months. She admits that in other two proceedings
like proceeding filed under the Domestic Violence Act and appeal
filed by her against the order of notice made by J.M.F.C. in Domestic
Violence case, she was regularly appearing before the Court. Those
FCA Nos. 1 & 7/14
were the proceedings filed by her and the submissions made show
that the counsel who was representing her in proceeding filed under
the provisions of Domestic Violence Act in the Court of J.M.F.C. and
in Sessions Court was representing her in Family Court also. Due to
these circumstances also, the contention of the wife that the
advocate did not inform her about the date fixed after July 2013
cannot be accepted and believed. Her case that she learnt about the
decision of the matter only when the husband contacted her on
phone and informed that he was intending to perform second
marriage also does not appear to be probable in nature. When the
relations are strained and when husband had got the decree, there
was no reason for him to inform the wife specifically about the
decision. Further, the present appeal came to be filed within
prescribed period of limitation. These circumstances create
probability that the wife and her counsel were keeping watch on the
proceeding and immediately after the decision of the matter, they
took steps to file the appeal in this Court. These circumstances are
sufficient to hold that there was no 'sufficient cause' for wife for not
remaining present in the Court during trial of the matter.
14) There is one more circumstance against the wife. Even
when this Court had directed the wife to see that written statement
is filed on the first date of appearance in Family Court, Aurangabad
FCA Nos. 1 & 7/14
after transfer of the matter from Mumbai to Aurangabad, she did not
file written statement and no written statement order was passed
against her. She took few months for filing written statement but the
Court gave opportunity to her to file written statement, subject to
payment of some cost. This conduct of wife also shows that she was
attempting to protract the things. She admits that she remained
present till the date of framing issues and issues were framed on
14.6.2013. She is also not disputing that the affidavit of evidence of
husband was served on her on 26.7.2013. These circumstances also
show that her contention that she could not get the next date in July
2013 cannot be accepted and believed. The roznama of the matter
of the Trial Court does not support this contention of wife.
15) The learned counsel for the husband placed reliance on
some reported cases which are mainly on powers of the Appellate
Court to set aside the exparte decree and the things which need to
be considered by the Appellant Court. The case reported as AIR
2011 SC 1150 [Parimal Vs. Veena] is on the decree of divorce
given exparte under the provisions of Hindu Marriage Act, 1955. In
this case, the Apex Court has laid down that sufficient cause needs
to be shown by the wife for getting the order of setting aside the
exparte decree. The meaning of 'sufficient cause' is given by the
Apex Court and it is observed that the discretionary relief to set
FCA Nos. 1 & 7/14
aside the exparte decree can be given by the Court only after tests
laid down in Order 9, Rule 13 of CPC are applied by the Court. This
Court is expected to ascertain as to whether the party against whom
such decree is given honestly and sincerely remained present for
hearing and the party had done his best to do so. Thus the party is
expected to show that the party cannot be blamed for his absence
for making of the case of 'sufficient cause'.
16) In the cases reported as AIR 2009 Patna 31
[Tejashwari Lal Vs. Pancham Lal] and 1993 AIR SCW 1178
[Salil Dutta Vs. T.M. & M.C. Private Limited], the High Court and
the Apex Court laid down that when from the facts and
circumstances of the matter, it can be gathered that the party
against whom exparte decree is given, intended to delay disposal of
the matter, such party cannot seek indulgence of the Court. Reliance
is placed on some more cases which are as under :-
(i) AIR 2001 Orissa 84 [Sabitanjali Pattanaik
Vs. Priyabrata Pattanaik],
(ii) (2007) 4 SCC 511 [Samar Ghosh Vs. Jaya
Ghosh],
(iii) AIR 2003 Allahabad 51 [Poonam Gupta Vs.
Ghyanshyam Gupta],
(iv) AIR 1997 SC 1180 [Adhhyaatman Bhaamini
Vs. Jagdish Ambalal Shah],
(v) AIR 2002 Rajasthan 345 [Smt. Raj Kumari
alias Chandrakala Vs. Nandlal],
FCA Nos. 1 & 7/14
(vi) (1994) 1 SCC 337 [V. Bhagat Vs. D. Bhatat],
(vii) (2013) 5 SCC 226 [K. Srinivas Rao Vs. D.A.
Deepa],
(viii) Civil Appeal No. 10710/2017 decided on
24.4.2017 by Apex Court [Raj Talreja Vs. Kavita
Talreja],
(ix) Family Court Appeal No. 71/2006 decided
on 7.2.2014 by Principal Seat of this Court at
Bombay, [Mr. M. Vs. Mrs. M.],
(x) Family Court Appeal No. 28/2009 decided
on 25.9.2017 by this Court [Sheela w/o. Vinod
Pol Vs. Vinod s/o. Ramkisan Pol].
The facts and circumstances of each and every case are
always different. This Court has mentioned the relevant facts of the
present matter and also grounds on which divorce is claimed. It
being discretionary relief, this Court holds that in view of the facts
and circumstances of the present matter, it is not possible to set
aside the decree of divorce given in favour of husband.
17) The husband has filed appeal as he did not get relief of
custody of the minor son. The relevant facts already mentioned
show that from 2013 the son is in the custody of the wife. She has
done Post Graduation in the field of medicine and she is working as
Professor. The submissions made show that her job is not
transferable. The husband is, however, required to give his full time
for discharging his duty and his job is transferable. Considering
FCA Nos. 1 & 7/14
nature of duties which are required to be discharged by the
husband, this Court has no hesitation to hold that the husband may
not be in the same position as the wife is to give proper attention to
the son. Due to these circumstances and as the financial condition of
wife is also sound, this Court holds that the custody of the son
cannot be given to the husband. Further, there is specific case of
wife that only after the settlement, the husband handed over the
custody of the child on his own and the husband has admitted that
he had given the custody to the wife. This circumstance cannot be
ignored for deciding the relief claimed by the husband for custody of
the child. Thus, there is no possibility of interference in the decision
given by the Family Court by which the custody of the child is
refused to the husband. In the result, both the appeals stand
dismissed. Civil Application stands disposed of.
[ARUN M. DHAVALE, J.] [T.V. NALAWADE, J.]
ssc/
