Bombay High Court
Shri Bhalchandra Dattaram ... vs Stm. Chitra V. Shirsat on 8 April, 2021
Bench: R.D. Dhanuka, Virendrasingh Gyansingh Bisht
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 1911 OF 2019
IN
FAMILY COURT APPEAL NO. 77 OF 2018
Bhalchandra D. Korgaonkar ...Applicant
Versus
Chitra V. Shirsat ...Respondent
IN THE MATTER BETWEEN
Chitra V. Shirsat ...Appellant
Vesrus
Bhalchandra D.Korgaonkar ...Respondent
......
Mr.Bhalchandra D. Korgaonkar- Applicant / original Respondent
present.
Mr.Amrut M. Vernekar a/w. Mr. Suraj S. Ghogare for the
Respondent/ Original Appellant.
......
CORAM : R.D. DHANUKA &
V.G.BISHT, JJ.
DATE : 8th April, 2021
P.C.:
1. By this interim application, the applicant (original respondent)
in the Family Court Appeal prays for an order against the respondent
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-wife to hand over interim custody of minor son Balkrishna, pending
Appeal against the judgment dated 30th November, 2017 passed by
the Family Court.
2. The applicant, who appears in person, has invited our attention
to the decree dated 30th November, 2017 passed by the Family Court
thereby dissolving the marriage of applicant with respondent and
holding that the applicant is entitled for permanent custody of minor
son Balkrishna after appeal period is over. He strongly placed
reliance on the observations made by the Family Court in the said
order dated 30th November, 2017 and, more particularly, paragraph
No. 55 observing that the Family Court had interviewed the son in
chamber and found that he was quite intelligent and was able to
understand the facts and circumstances in which he was placed. He
could apprehend matters and visualize his own well-being. He
seemed to have no complaint against his father. He explicitly stated
before the Family Court that he was inclined to go with his father
and did not want to continue with the mother and would like to stay
with his father as father had helped him in his studies and solved his
problems whereas mother used to ignore his difficulties.
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3. It is clear that inspite of the said order passed by the Family
Court, the respondent wife has not handed over the custody of child
to the applicant.
4. The applicant invited our attention to the various averments
made in support of the interim application and would submit that
the said child has become 13 years old now and is a teenager. As per
his interaction with his child, child was not comfortable with
respondent-wife. The respondent and her mother tormented the
child by calling him "son of snake" and asked him to get out of the
house for carrying his expensive smartphone -watch during his
access.
5. Mr. Vernekar, learned Counsel for the respondent, on the other
hand, would submit that the said decree passed by the Family Court
has been stayed by this Court in Civil Application No. 122 of 2018
filed by respondent -wife in Family Court Appeal No. 77 of 2018.
While granting stay to the impugned decree passed by the Family
Court, this Court, after interviewing the child, in paragraph No.2 of
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the order dated 14th June, 2018 recorded that the child has been
staying with his mother since birth and has not been separated from
his mother since that time. He is currently staying with his mother
and studying in a school near his resident. He has been in this
school since nursery. He also has friends in that school. The child
has been staying with his mother as well as grand-parents from his
mother's side. After interviewing the child, this Court do not think
that it would be in the interest of the child to uproot him from his
present environment and hand over permanent custody to the
applicant-husband. This Court has accordingly stayed the decree
passed by the Family Court vide order dated 14th June, 2018.
6. A perusal of the said order further indicates that this Court has
already provided the right of access to the minor child on every 1 st
and 3rd weekend making it clear that the applicant will be entitled to
take the child from the child's house at 9.00 a.m. on Saturday
morning and return him back by 1.00 p.m.on Sunday. In paragraph
6 of the said order dated 14 th June, 2018, it is recorded that the
applicant-husband shall be entitled to take the child every first 1/3rd
of each of the vacations of the child, provided he handover his
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passport to the respondent -wife which shall be returned to him
simultaneously on the applicant handing over the child to the
respondent -wife.
7. The learned Counsel for the respondent also invited our
attention to the order dated 2nd May, 2019 passed by a Division
Bench of this Court in Civil Application No. 122 of 2019 filed by the
applicant-husband inter alia praying for holding of custody of
minor child during the pendency of this appeal. This Court recorded
the detailed reasons and took cognizance of the said order dated 14 th
June, 2018 passed by earlier Bench.
8. This Court held that after detailed exercise and a conscious
decision, this Court maintained the custody of the mother over the
child on various grounds. Nothing has happened since passing of the
said order as to permit this Court to reconsider the entire issue.
This Court also took cognizance of the fact that the said Civil
Application did not disclose any ground for reviewing the situation.
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9. A perusal of the record indicates that the applicant is in habit
of filing application against the respondent -wife one after another.
10. At this stage, the applicant invited our attention to the order
dated 14th June, 2018 passed by a Division Bench of this Court in
Civil Application No. 122 of 2018 and would submit that visiting
rights provided by this Court in the said order during vacation of the
child has also not been complied with by respondent -wife. He
submits that school vacation of the child will start from 10 th April,
2021.
11. Mr.Vernekar, learned Counsel for the respondent, has invited
our attention to paragraph No.4 of the said order dated 10 th
December, 2020 and would submit that because of of COVID-19
situation, it was not possible for the respondent -wife to provide
access of the child to the applicant. This Court has recorded the
statement made by respondent -wife that she has no objection if the
applicant comes at the respondent's place and have access inside the
building compound on every Saturday and Sunday for 2-3 hours
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without taking the child outside. The applicant submitted that he
was ready to go and meet his son with prior appointment with the
respondent's wife on Saturday and Sunday. This Court permitted the
said interim arrangement.
12. We make it clear that the applicant is entitled to take the child
in terms of paragraph No.6 of the order dated 14 th June, 2018
passed by this Court on the conditions set out therein during the
school vacation of the said child. The respondent -wife is directed to
comply with that part of the order without fail.
13. We do not find change in circumstances for warranting any
modification of the earlier order passed by this Court.
14. For the reasons recorded aforesaid, we are not inclined to
grant any relief as prayed in interim application.
15. Interim Application is accordingly dismissed with aforesaid
direction. There shall be no order as to costs.
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16. Place the Contempt Petition No. 288 of 2019, Family Court
Appeal No. 101 of 2018 and Interim Application (St.) No. 8387 of
2021 on board on 28th April, 2021.
(V.G.BISHT, J.) (R.D.DHANUKA, J.)
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