Namdeo S/O Sadashiv Borkar vs Smt. Vaishali Namdeo Borkar
2017 Latest Caselaw 7501 Bom

                                               1

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                           NAGPUR BENCH :  NAGPUR



Appeal against Order No. 9 of 2017

Appellant                  :        Namdeo son of Sadashiv Borkar, aged 

                                    about 50 years Occ: Teacher, resident of

                                    Karjat, District Raigad

                                    versus

Respondent                 :        Smt Vaishali Namdeo Borkar, aged about

39 years, Occ: Household, resident of c/o

U. T. Gajbhiye, Professors Colony, Nagina-

bag, Pradnya Chowk, Chandrapur

Appellant in person

Ms Kirti Satpute, Advocate for respondent

Coram : S. B. Shukre, J

Dated : 25th September 2017

Oral Judgment

1. Heard the appellant in person and Ms Kirti Satpute, learned

counsel for the respondent at length. Perused the impugned judgment

and order as also record of the case.

2. Now, the only point that arises for my determination is:

Whether the appellant proves that welfare of the child

Vaibhav is ensured only upon granting his custody to

the appellant ?

3. The appellant in person submits that the judgment and

order impugned here are per se illegal and arbitrary and that they record

perverse findings. He submits that the learned District Judge has not at

all considered the welfare of the child and also the fact that the

appellant being the father of the child, has a first right to the custody of

his son, which would prevail upon the right of the respondent, if any.

According to learned counsel for the respondent, ultimately the Court

has to see as to where welfare of the child would lie and in the present

case, upon weighing the facts and circumstances available on record,

found that it would lie in the company of respondent and rightly so. She

submits that there is no need to make any interference in the impugned

judgment.

4. On going through the findings recorded by the learned

District Judge in the present case, I am of the opinion that there is great

substance in the argument of learned counsel for the respondent and no

merit in the argument of appellant in person. These findings, although

disagreed to by the appellant, are based upon the evidence brought on

record and, therefore, could not be called as perverse or arbitrary.

5. It is seen from record of the case that the appellant, instead

of tendering relevant evidence, has only tried to bring on record some

facts which were not germane to the issue involved in this case which

pertained to the welfare of the child. On the contrary, the record of the

trial Court shows that this appellant did not behave properly before the

District Court and by indulging into a conduct which was no less than

violent laid before his son an example unworthy of a good father. It is

particularly noticed that when a question was put to this appellant

during the course of his cross-examination that on 29.1.2010 the

appellant had tried to drive the respondent away, the appellant lost his

temper and counter questioned the counsel cross-examining him. The

retort of the appellant to learned counsel for the respondent was to the

effect, as to how the learned counsel dared ask that kind of question to

him and after questioning the propriety of the question asked of him by

the learned counsel, the appellant in a fit of anger, left the Court hall

adding that he did not want to say anything more.

6. It appears that the matter has been remanded to the District

Court by this Court earlier in order to give an opportunity to the

appellant to tender further evidence. But, it was not availed of by him.

There is an observation in that regard made in paragraph 12 of the

impugned judgment, which is supported by the record of the case.

7. Apart from the conduct of the appellant, there is also

absence of any evidence produced on record by the appellant which

would show that if he is granted custody of the child Vaibhav, he would

make most of it for ensuring welfare of his minor son Vaibhav.

8. A perusal of the evidence of the appellant (exhibit 22)

shows that major part of his evidence relates to the allegations made by

him against the respondent, the mother of the child and the grievances

of the appellant against the respondent. About the welfare of the child,

he has only stated that he is a teacher who desires to impart good

education to his child, that he is competent to impart education, that

the mental condition of the respondent is not proper and that she is

being administered some medicines in that connection. These are all, I

must say, generalised statements and would not be sufficient to hold

that by granting custody of minor child to the appellant, welfare of the

child would be ensured. On the contrary, the evidence adduced by the

respondent gives an assurance that welfare of the child is well secured

in the custody of the respondent. The child is being given proper

education by the respondent, the result of which is that the child has

crossed 10th standard of his school education.

9. With such evidence being available on record and added to

it is the unworthy conduct of the appellant, I do not think that welfare of

the minor child would lay in granting his custody to the appellant. The

appellant has failed to prove that if custody is granted to him, it would

serve very well to secure the welfare of the minor child. Rather, the

evidence shows that if the custody is given, it is quite likely that it would

create adverse impact on the state of mind of Vaibhav given the conduct

of the appellant and his habit to throw tantrums..

10. This Court on 15th September 2017 had interviewed the

minor child. The memorandum of this interview has been recorded by

this Court on the same day. Whatever has been found by this Court after

considering the evidence on record more or less had also emerged

during the course of interview of the minor child. He had then said that

he was happy with his mother at Chandrapur and that he would not go

to the place of residence of his father. He stated that he was afraid of his

father, because he was short tempered who behaved violently with his

mother. So, the wish of the minor child who is having sufficient maturity

to understand as to where he would remain happy and where he would

not, also needs to be respected.

11. Considering the over all facts and circumstances of the case,

I find that the impugned judgment is legal and proper. The appellant

has failed to prove that he is entitled to receive custody of the minor.

The point is answered accordingly.

12. In the result, appeal is dismissed. Parties to bear their own

costs.

S. B. SHUKRE, J

joshi