Bombay High Court
Swapnil Dinesh Adhyapak And Anr vs Mansi Swapnil Adhyapak on 17 July, 2021
Bench: Mangesh S. Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 60 OF 2021
1. Swapnil s/o Dinesh Adhyapak,
Age : 30 years, Occu. Service
2. Hemlata w/o Dinesh Adhyapak,
Age : 60 years, Occu. Pensioner
Both r/o Shakhambari Niwas,
Near Rukhmini Mangal Karyalaya,
Vishal Nagar, Barshi Road, Latur PETITIONERS
VERSUS
Mansi w/o Swapnil Adhyapak,
Age : 28 years,
At present R/o c/o Dipak Keshavrao Bharne,
Sundarwadi, Aurangabad RESPONDENT
----
Mr. Sachin S. Deshmukh, Advocate for the petitioners
Mrs. Minakshi L. Sangeet, Advocate for the respondent
----
CORAM : MANGESH S. PATIL, J.
DATE : 17.07.2021
ORDER :
Heard both the sides.
2. The husband is before this Court impugning the judgment and
order passed by the Appellate Court reversing the order passed by the
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learned Magistrate on the application (Exh-4) filed by respondent/wife,
seeking custody of a minor child as contemplated under Section 21 of the
Protection of Women from Domestic Violence Act, 2005 ("DV Act", for short)
in a substantive proceeding initiated by her under Section 12 of that Act
against petitioner No.1/husband for various reliefs under the Act.
3. The learned Advocate for the petitioners would vehemently point
out that though the welfare of the child is of a paramount consideration, he
should be allowed to make an intelligible choice, which procedure has not
been adopted by the Appellate Court while setting aside the order passed by
the Magistrate refusing to handover the custody of the child to the
respondent/wife. Without resorting to such a procedure mandated by law,
the order ought not to have been reversed.
4. The learned Advocate would further point out that there was
enough material before the Appellate Court to demonstrate that even the
respondent/wife is suffering from Spastic Diplegia C.P. and the extent of her
disability is to the tune of 40%. If this be so, one could easily comprehend
that she is physically and may be mentally incapable of maintaining the child,
who is barely three years of age. He would further submit that the revision
petitioner No.1 is the biological father and obviously natural guardian of the
child. His mother is also staying with him and both of them can conveniently
look after the welfare of the child. Since the respondent/wife has deserted
matrimonial home on her own, she cannot be now allowed to take advantage
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of the situation.
5. Lastly, the learned Advocate for the petitioners would point out
that the very fact that the respondent/wife has been claiming ad-interim
maintenance for maintaining herself, it would be difficult for her even to
maintain the minor child, when she herself is hand to mouth. All these
aspects have been ignored by the Appellate Court while passing the
impugned order, which is grossly erroneous and illegal and may be quashed
and set aside.
6. The learned Advocate for the respondent/wife supports the
impugned judgment and order. She submits that though the respondent/wife
has been suffering from some ailment, the learned Judge of the Appellate
Court has taken into consideration various aspects while pointing out as to
how such disability would not constitute impediment in maintaining the
child. She would point out that the plea of her such disability is now being
conveniently put forth to face the situation. Admittedly, the couple had put
in atleast two years of marital life and has begotten a child and at no point of
time had the petitioner/husband faced any difficulty on account of her
disability.
7. The learned Advocate would further point out that though the
petitioner/husband is now pretending to be capable of maintaining the child,
in fact, he is jobless and is fully dependent on the pension earned by his
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widowed mother. Therefore, even practically it is difficult for him to
maintain the child.
8. Lastly, the learned Advocate for the respondent/wife would rely
upon various judgments of the Supreme Court and the judgment of this Court
referring to the decisions of the Supreme Court while deciding First Appeal
No. 393 of 2021 Ratnamala w/o Pandurang Zate Vs. Pandurang Udhav Zate,
dated 03.07.2021.
9. I have considered the rival submissions and the papers as also
the case law. Suffice for the purpose to remind ourselves at the inception
that it has been consistently held that the welfare of the child is a paramount
consideration while deciding such requests and disputes pertaining to its
custody. Obviously, while considering such welfare, even the inclination of
the child is to be taken into consideration. It is also trie, as laid down in
catena of cases namely Roxann Sharma Vs. Arun Sharma (2015) 8 SCC 318 ,
Yashita Sahu Vs. State of Rajasthan and others (2020)3 SCC 67, etc. that as
far as a child below five years of age is concerned, in the ordinary course, it
should be in the custody of its mother.
10. Bearing in mind these principles, if one examines the matter in
hand, admittedly the child is less than five years of age. It is, therefore, in
the ordinary course that the child should be in the custody of the respondent/
wife. Obviously, the petitioner/husband is entitled to demonstrate as to how
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the fact situation in the matter in hand is exceptional and demands a
deviation from the well settled principles. The foremost circumstance relied
upon is the fact of the disability from which the respondent/wife has been
suffering. It is being demonstrated that she is suffering from Spastic Diplegia
C.P., having disability to the extent of 40%, measured by adopting McBride
scale. However, as has been rightly borne in mind and pointed out by the
learned Judge of the Appellate Court, though the respondent/wife has been
suffering from such a disability, she is quite capable of and has been handling
the child properly till the couple was together. It is pertinent to note that the
learned Judge also had an opportunity to personally see the respondent/wife
in the Court and has formed a subjective opinion about how inspite of her
such disability, she is capable to look after the child. Apart from his such
subjective satisfaction, he has also demonstrated as to how there could not
have been any dispute as regards her ability to maintain the child so long as
the couple was together. He has also pointed out that inspite of her such a
condition, the petitioner/husband could cohabit with her for couple of years
during which the child was born. If such is the state-of-affair, no exception
can be taken to the observations made and conclusions drawn by the learned
Judge that the plea being raised by the husband/petitioner is a convenient
one and the respondent/wife is capable of looking after the child inspite of
her such disability.
11. As far as the financial condition of the respondent/wife is
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concerned, in my considered view, even if the respondent/wife is incapable of
earning anything on her own, that cannot be a legal and logical parameter
for refusing custody of minor child. If at all the petitioner/husband is really
interested in the welfare of the child, he can conveniently provide her with
sufficient amount monthly so as to enable her to maintain even the child and
not only herself. Therefore, financial condition of the respondent/wife, in my
considered view, cannot be a right reason to refuse her the custody of the
minor child.
12. Having considered all the above mentioned facts and
circumstances and bearing in mind the consistent view of the Supreme Court
in the cases of Roxann Sharma (supra) and Yashita Sahu (supra), the child
being less than five years of age, no fault can be found with the judgment
and order passed by the learned Judge of the Appellate Court allowing the
respondent/wife's application (Exh-4) under Section 21 of the DV Act and
directing to handover the custody of the child to her.
13. The Revision Application is dismissed.
14. The petitioner/husband shall handover the custody of the child,
as directed by the Appellate Court in the impugned judgment and order, on
19.07.2021.
15. It is clarified that the observations made hereinabove are
confined to the decision of the present Revision Application and the learned
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Judge of the lower Court shall not get swayed away by those.
[MANGESH S. PATIL]
JUDGE
npj/CRIREVN60-2021
