Bombay High Court
Sau.Minal W/O Vivek Maloo vs Vivek S/O Subodh Maloo on 5 July, 2021
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRI. WRIT PETITION NO. 1080 OF 2019
Sau. Minal Vivek Maloo
-Vs.-
Vivek Subodh Maloo and others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr.S.S.Dhengle, counsel for the petitioner.
Mr. K.A.Nitnaware, counsel for respondent Nos.1 and 2.
Mr. A.R.Chutake, APP for respondent No.3.
CORAM : MANISH PITALE, J.
DATE : 05.07.2021
Hearing was conducted through video
conferencing and the learned counsel agreed that the
audio and visual quality was proper.
2. The petitioner herein has challenged orders
passed by the Courts below as regards temporary
custody of the minor child, during pendency of
application filed by her under section 12 of the
Protection of Women from Domestic Violence Act, 2005
(hereinafter referred to as "Act of 2005") before the
Court of the Judicial Magistrate First Class (JMFC),
Court No.2, Yavatmal.
3. The petitioner has initiated proceedings under
the provisions of the Act of 2005 making diverse
prayers, including prayer for custody of the minor son,
who is now about 8 years old. She has also prayed that
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in case the Court grants interim custody of the child, the
respondent No.1 be directed to pay a certain amount
per month to the petitioner.
4. On the question of grant of interim/temporary
custody of the child, the Court of JMFC passed an order
only granting permission to the petitioner to meet her
child on the 2nd and 4th Saturday of each month and
festival/holiday or vacation of the school with prior
intimation. The operative portion of the order reads as
follows:
"1. Application is partly allowed.
2. Permission is granted to applicant to meet her
child Arav on second and fourth Saturday of
each month and festival and in holiday or
vacation of School of child Arav prior
intimation and conveyance of child Arav
within the vicinity of Pune City. The non
applicant will pay the charges of traveling to
the applicant after her visiting to her child
Arav.
3. The non-applicant is prohibited from
committing any act of domestic violence with
applicant during said visit hours.
4. Non-applicant is directed to co-operate to the
applicant during meeting.
5. Both the parties shall decide by mutual
discussion the time and place at Pune, for
access of minor child Arav without affecting
his school time."
5. Aggrieved by the same, the petitioner filed
appeal before the Sessions Court at Yavatmal under
section 29 of the Act of 2005. By the impugned
judgment and order, the Sessions Court dismissed the
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appeal. Aggrieved by the same, the present writ petition
has been filed.
6. Mr. Dhengale, learned counsel for the
petitioner, vehemently submitted that the Courts below
have committed a grave error in refusing temporary
custody of the child to the petitioner. It was submitted
that the Sessions Court was wrongly influenced by the
fact that the respondent No.1 is working in a Bank and
earning about Rs.1,00,000/- per month. He submitted
that this approach of the Sessions Court was against the
settled position of law, according to which, the income
of the father ought not to be the deciding factor. The
respondent No.1-father could be directed to pay specific
amounts towards education and other expenses of the
child and temporary custody could certainly be granted
to the petitioner.
7. On the other hand, Mr. Nitnaware, learned
counsel for the respondent Nos.1 and 2, submitted that
no interference is warranted in the impugned order,
particularly when both the Courts had personally
interviewed the child and found that it was in the best
interest of the child that he continues in the custody of
the respondent No.1 during pendency of the
proceedings initiated by the petitioner before the Court
of JMFC. It is further submitted that the child is
undergoing education at a reputed school in Pune and
to shift him suddenly from Pune to Yavatmal, which is
at a long distance, would disturb the child
unnecessarily.
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8. Having heard the learned counsel for the rival
parties and upon perusal of the material on record, this
Court finds that the orders passed by the Courts below
appear to be reasonable, in the facts and circumstances
of the present case. This is particularly so, for the
reason that both the JMFC as well as the Sessions Judge
had interviewed the child and they found that he was
completely averse to leaving the custody of his father
even temporarily. It is submitted on behalf of the
petitioner that this was due to tutoring of the child by
the respondent No.1. This Court is of the opinion that
since the child is admittedly living with the respondent
No.1 for about four and half years and he is
undertaking education at a school in Pune, it would be
rather harsh for the child to be suddenly taken away
from his present surroundings to a distant place like
Yavatmal.
9. The tenor of the orders of the Courts below does
not indicate that the temporary custody has been
refused to the petitioner only because the respondent
No.1 is in service and he is earning a reasonable
amount of money. In fact, the Courts below have
applied the test of paramount interest of the child,
while passing the impugned orders. This is evident
from the following observations made by the Sessions
Court in the impugned order:
"11] Now, therefore, it is to be seen, what
are the facts and circumstances of the instant
matter. The applicant is the mother and the
non-applicant No.1 is the father of the child.
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The applicant is residing at Yavatmal with her
parents and the non-applicants are residing at
Pune. The date of birth of the child is
02/09/2012. Thus, the child is more than 7
years old. No doubt, in such a tender age of
life, a person needs more care, love and
affection of his mother. But at the same time,
considering the settled principle of law, it
should be kept in mind, with which parent
there is welfare of the child. No doubt, the
child has to suffer anyhow, if he is not getting
the love and affection of both the parents at
the same time. However, when the situation is
complex and the Court has to decide the
custody of the child, the wish of the child, his
welfare and other surrounding circumstances
need to be considered. Before passing impugned
order, the learned Magistrate interviewed the
child in her chamber and during that interview,
the child stated that his grand-father (Nana)
assaults him. The child was scared of the
applicant and her father. He started to cry
when the learned Magistrate suggested him to
stay with his mother. This Court also
interviewed the child and found that he was
quite intelligent and was able to understand the
questions and their consequences. During that
interview also, he stated that his grand-father
i.e. Nana beats him and he is so scared of him.
He specifically stated that he does not want to
go to reside with his mother. He had no
complaint against non-applicants. He specifically
stated that he wants to stay with non-
applicants. By seeing his grand-father i.e. Nana,
he started to cry. Thus, the child does not want
to go to the applicant and he is highly under
fear of his Nana i.e. the father of applicant.
Under such circumstances it would not be in
the interest and welfare of the child to give his
custody to the applicant."
10. Since in the present petition, this Court is
concerned with the question of temporary custody of
the child, during the pendency of the proceedings
initiated before the JMFC, it appears appropriate that a
direction is given to the JMFC to dispose of the
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proceedings at the earliest and not to interfere with the
concurrent orders passed by the two Courts below. It
would be in the interest of the child that he continues in
custody of the respondent No.1, during pendency of the
proceedings, particularly when the petitioner has been
granted visitation rights on 2nd and 4th Saturdays, as also
during festival/holiday or vacation of the minor child.
11. In view of the above, the writ petition is
dismissed. At the same time, the Judicial Magistrate
First Class, Court No.2, Yavatmal is directed to expedite
the proceedings in Misc. Criminal Case No.184 of 2018,
initiated by the petitioner. The said Court shall ensure
that the proceedings are completed and final orders are
passed in the matter within a period of four months
from today.
12. It is made clear that the observations made by
the two Courts below in the impugned orders and this
Court in the present order, shall not influence the Court
of JMFC, Court No.2, Yavatmal in deciding the question
of custody of the minor child. The observations so made
are obviously limited to the question of entitlement
towards temporary custody.
13. The writ petition stands disposed of accordingly.
JUDGE
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