Sunil Suresh Kambale vs Sahebrao Shankar Jagtap And ...
2022 Latest Caselaw 13236 Bom

                                                                            FCA 06-22

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                       FAMILY COURT APPEAL NO. 06 OF 2022

             Sunil s/o Suresh Kambale                        ...    Appellant
             Age 36 years, Occu: Service
             R/o Behind Ambika Hotel, Kedgaon,
             Ahmednagar, Dist. Ahmednagar

             VERSUS

 1.          Sahebrao Shankar Jagtap,
             Age 60 years, Occu: Retired

 2.          Nirmala Sahebrao Jagtap,
             Age 56 years, Occu: Household work

             Both R/o Jayhind Nagar, Bhushannagar,
             Ahmednagar.
 3.          Shubham Sunil Kamble                            ...    Respondents
             Age 5 years, Occu: Education

 4.          Samrudhi Sunil Kamble,
             Age 11 months, Occu: Nil

Mr. R. N. Dhorde, Senior Advocate i/by Mr. V. R. Dhorde, Advocate for
the appellant,
Ms. S. G. Sonawane, Advocate for respondent Nos. 1 and 2.

                  CORAM                  : MANGESH S. PATIL &
                                           Y. G. KHOBRAGADE, JJ.
                  RESERVED ON            : 08.12.2022
                  PRONOUNCED ON : 20.12.2022

JUDGMENT ( Per Y. G. Khobragade, J.):

1. Admit. The appeal is heard finally with the consent of the

learned counsel appearing for both sides.

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2. By the present appeal, the appellant takes exception to the

judgment and order dated 25.10.2021 passed by the Family Court,

Ahmednagar dismissing the petition (D1/2021), filed by the appellant

under section 25 of the Guardians and Wads Act, 1890 for custody of

his two minor children i.e. present respondent Nos. 3 and 4. The

respondent Nos. 1 and 2 are his in-laws i.e. parents of his deceased wife

Priyanka.

3. It is the case of the appellant that, on 20.02.2014, his

marriage was solemnized with Priyanka, as per custom and rites

prevailing in their community and out of marital tie, on 19.01.2015

they were blessed with a male child Shubham (Respondent No.3) and

on 05.03.2019, a female child, Samrudhi (Respondent No.4). Priyanka

was having some health issues. Her maternal house is situated in the

same city, hence, since 10.09.2019 she started residing at her maternal

house. However, on 03.12.2019, around 8.30 to 9.00 p.m. Priyanka

committed suicide while residing at her maternal house and the fact

was informed to him through phone but after hearing the sad news, he

was became unconscious. Therefore, he was hospitalized for entire

night and on the second day, he visited the house of his in-laws for

funeral of Priyanka. However, in the meanwhile, respondents 1 & 2 and

their relatives started making allegations against the appellant and his

family members which led to filing of complaint against him, which

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resulted in registration of Crime No. 1766/2019 with Kotwali Police

station, Dist. Ahmednagar for the offences punishable under sections

306, 498-A, 323, 504, 506 and 507 of the Indian Penal Code.

Subsequently, said crime led to registration of Regular Criminal Case

No.418 of 2020 which is pending on the file of learned Judicial

Magistrate First Class, Ahmednagar.

4. According to the appellant, since the day of marriage, the

matrimonial relations between him and his wife Priyanka were cordial.

He has been serving with the Central Railway being permanent

employee and Priyanka was working as the State Government

employee with Irrigation Department and both of them were drawing

good salary. In the month of September 2019, Priyanka went to her

maternal house along-with son Shubham and daughter Samrudhi

(Respondent Nos. 3 and 4) due to her sickness. On the eve of Diwali

festival, he presented golden necklace to his wife. But unfortunately, his

wife committed suicide on 03.12.2019 and respondent No.1 filed a false

complaint against him and his family members and since then, the

respondent Nos. 1 and 2 kept custody of his minor children Shubham

and Samrudhi. So also, the respondent Nos. 1 and 2 did not allow him

to meet his minor children. He filed a petition under section 25 of the

Guardians and Wards Act and prayed for custody of his minor children-

Respondent Nos. 3 and 4 from the respondent Nos. 1 and 2.

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5. According to the appellant, respondent No.1 is his father-in-

law and respondent No.2 is his mother-in-law. The respondent Nos. 1

and 2 are having two unmarried children and no one is in a position to

take care of his both the minor children. The children are studying in

Jainacharya Shri Shivmuniji Gurukul School (JSS Gurukul) and he is

capable of taking every care of his children. His son Shubham is having

good affection with his mother Alkabai and he is natural guardian of

both children having every love and affection towards them. Therefore,

he requested respondent Nos.1 and 2 to be given in his custody.

6. Respondent Nos. 1 and 2 filed their written statement at Exh.

30 and denied all adverse allegations made against them. According

to respondent Nos. 1 and 2 marriage of their daughter Priyanka was

solemnized on 02.02.2014 with the appellant at Yesh Grand Hotel,

Ahmednagar and they borne huge expenses of Rs.10 lakhs towards

marriage of their daughter and also provided dowry of Rs. 3 lakhs cash

and 3 tolas gold ornaments. After the marriage, their daughter Priyanka

cohabited with the appellant at her matrimonial house. Though

Priyanka was serving with Irrigation Department, Ahmednagar from the

year 2012, the appellant and his family members meted out physical

and mental harassment to her by suspecting about her character and

due to unbearable torture, she committed suicide. According to

respondent Nos. 1 and 2, on 03.02.2019 at around 5.00 p.m the

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appellant had contacted Priyanka through mobile phone and

threatened to kill her and her family members because of which she

committed suicide. Thereafter, the respondent No.1 lodged a report

with Kotwali Police Station on the basis of which Crime No. 1766/2019

registered against the appellant for the offences punishable under

sections 306, 498-A, 323, 504, 506 and 507 of the Indian Penal Code.

7. The respondent Nos. 1 and 2 further contended that since the

day of death of their daughter, respondent Nos. 3 and 4 minor children

are in their custody and they are taking every care of both the minor

children. The respondent No.1 is retired teacher and drawing pension

and respondent No.2 is home maker, hence, they are able to take care

and maintain both the minor children. Since the appellant had

threatened Priyanka by suspecting her character. They are receiving

threats from the appellant. Life of both the minors would be at peril. It

is not safe to handover their custody to the appellant. Hence, they

prayed for dismissal of the appeal. Hence, they prayed or dismissal of

the appeal.

8. On the basis of rival pleadings of both sides, the learned

Judge of the Family Court framed issues at Exh.90. The appellant/

petitioner filed his evidence affidavit and also examined his mother

Smt. Alka Suresh Kambale by filing evidence affidavit at Exh. 62. The

appellant examined PW-3 Anand Dilip Kataria, Headmaster of the GSS

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Gurukul at Exh. 68. The appellant filed purshis Exh. 91 and closed his

evidence. Apart from stepping into witness box, the respondent Nos. 1

and 2 filed purshis Exh 92 by stating that, the appellant ill-treated their

daughter and in consequence thereof, their daughter committed suicide.

Therefore, the report was lodged against the appellant with Kotwali

Police Station, on the basis of which Crime No. 1766/2019 registered

against the appellant for the offences punishable under sections 306,

498-A, 323, 504, 506 and 507 of the Indian Penal Code.

9. The appellant and the respondents filed their written notes of

arguments and after due hearing, on 25.10.2021, the learned Judge of

the Family Court, Ahmednagar passed the impugned judgment and

dismissed the petition on ground that the appellant is facing criminal

trial for the offences punishable under sections 306, 498-A, 323, 504,

506 and 507 of the Indian Penal Code and it would not be in the

welfare of both the minors to disturb their custody from their

grandparents i.e. respondent Nos. 1 and 2 and both the minors would

be entitled to meet the appellant on every 1 st and 3rd working Saturday

in children complex of the Court.

10. Mr. R. N. Dhorde, the learned Senior Advocate appearing for

the appellant submitted that financial status of the of the appellant is

much better than the financial status of respondent Nos. 1 and 2 and

the appellant is a natural guardian of both the minors i.e. respondent

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Nos. 3 and 4, so also, mother of the appellant is well educated having

good health drawing pension and is capable to nurture both the

minors. Registration of a crime for domestic assault like offence under

section 498-A and 306 IPC cannot be good and sound reason to deny

custody of minor children to the appellant who is their natural father.

The respondent No.1 lodged a false report against the appellant because

the respondent No. 1 and 2 lost their married daughter. The respondent

Nos. 1 and 2 never raised any such grievance of cruelty against their

daughter at the hands of the appellant prior to said untoward incident

of suicide.

11. The learned senior advocate further canvassed that respondent

Nos. 1 and 2 ,who are maternal grandparents of respondent Nos. 3 and

4, are not physically and financially sound to take proper care and

provide better education to respondent Nos. 3 and 4. The appellant is

a permanent employee. The wife of appellant committed suicide at the

house of respondent No.1 when he was on duty, therefore, denial of

custody of respondent Nos. 3 and 4 on the ground that the appellant is

wholly unfit guardian is illegal and bad in law.

12. Per contra, Ms. S.G. Sonawane, the learned advocate for the

respondent Nos. 1 and 2 supported the findings of the learned family

Court. She submitted that the appellant has never taken care of his

wife during her first pregnancy, hence, she came back to the

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respondents' house for her delivery but the appellant did not visit her

after delivery. Shubham is in custody of the respondent Nos. 1 and 2,

since he was three years old. Samrudhi is in custody of respondent Nos.

1 and 2 since her birth. Therefore, the respondent Nos. 1 and 2 are

having much love and affection towards both the minors and both the

respondents are capable to take care of their welfare.

13. The learned counsel appearing for the respondents submitted

that the PW3 Anand Kataria, headmaster of JSS Gurukul, admitted in

his cross examination that minor Shubham was not regular in school

when he was residing with the appellant due to domestic dispute and

he is still taking education in the same school even when he is in

custody of respondent Nos.1 and 2. Minors are residing with their

grandparents since December, 2019 and respondent Nos. 1 and 2 are

having much love and affection towards them. Since the trial for the

offences punishable under sections 306, 498-A, 323, 504, 506 and 507

of the Indian Penal Code is pending against the appellant, hence, it

would not be just and proper to give custody of both the minors to the

appellant and said fact is considered by the family court and has rightly

dismissed the petition.

14. In support of the submissions, the learned counsel appearing

for the respondent Nos. 1 and 2 placed reliance on the decision of the

Supreme Court in the case of Nil Ratan Kundu Vs. Abhijit Kundu- in

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Civil Appeal No. 4960 of 2008 decided on 8th August, 2008, wherein

as father was facing charge under section 498-A IPC, hence, custody of

minor was not granted to the father and he was allowed to remain with

his maternal uncle. She further relied on the case of Smriti Kansagara

Vs. Pery Kansagara (2020 SCC Online SC 887) and Ritika Sharan Vs.

Sujay Ghosh (2020 SCc Online SC 878) wherein the Hon'ble Supreme

Court held that wishes of minor should be considered while deciding

their custody application.

15. Having regard to the submissions canvassed on behalf of both

the sides, we have gone through the record. It is an admitted fact that

on 20.02.2019, marriage of appellant with Priyanka was solemnized at

Ahmednagar and prior to marriage, she was in government employment.

Out of wedlock on 19.01.2015 Shubham was born and on 05.03.2019

Samrudhi was born. Therefore, the appellant is natural guardian of both

the minors.

16. The appellant filed evidence affidavit and stated that in the

month of September 2019, his wife Priyanka visited her maternal

house due to her health problem but he was in contact with her. So also,

on the eve of Diwali festival, he purchased golden ornaments i.e.

Necklace and Mangalsutra and presented to her, however, on

03.12.2019, at about 8.30 to 9.00 p.m., she committed suicide while

staying at her maternal house. At that time he was on duty and after

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hearing the news, his blood pressure increased due to which he fell

down and was hospitalized for entire night. Therefore, on next day,

with his family members visited the house of respondent Nos. 1 and 2

to attend funeral. But in the meanwhile, the respondent No.1 lodged a

false complaint against him and his family members about cruelty

which resulted in registration of Crime No. 1766/2019 with Kotwali

Police station, Dist. Ahmednagar for the offences punishable under

sections 306, 498-A, 323, 504, 506 and 507 of the Indian Penal Code.

During the course of evidence, the appellant produced receipts Exh. 46

in respect of purchase of golden ornaments to the tune of Rs.58,204/-,

Exh.47- extract of landed property, Exh. 48 receipt of purchase of gold

ornament in the year 2018, bonafide certificate in respect of Shubham

Exh. 40. In the cross examination of the appellant, it has been brought

on record that form the month of August 2018 to June 2019, Priyanka

was residing at her maternal house and during that period, minor

Shubham was residing with his mother- Priyanka, so also, after birth

Samrudhi was staying with her mother Priyanka.

17. It is not in dispute that, in the year 2018, Shubham was 3

years old, therefore, naturally, he was staying with his mother Priyanka

at the house of respondent Nos. 1 and 2 because at the relevant time,

Priyanka had gone to her maternal house for second delivery and on

05.03.2019 Samrudhi born. It is not in dispute that on 03.12.2019,

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Priyanka, the wife of the appellant committed suicide by hanging at her

maternal house and on the next day i.e. on 04.12.2019, respondent

No.1 lodged a FIR with Kotwali Police Station, Ahmednagar alleging

that on 10.09.2019, the appellant and his relatives drove away her

from his house and from 28.11.2019 the appellant was continuously

making phone calls on mobile and was threatening Priyanka.

Consequently, she committed suicide. Though the respondents filed

their written statement at Exh. 13 and alleged that due to ill-treatment

and for non fulfillment of demand of dowry, Priyanka committed

suicide, but the respondents failed to lead evidence. Therefore, the

defence set out by respondent Nos 1 and 2 remained uncorroborated.

18. It is well settled principles of law that the father is natural

guardian of the minor children. Only due to unnatural death of minors'

mother and registration of FIR, their custody remained with respondent

Nos. 1 and 2-grandparents.

19. Section 25 of the Guardians and Wards Act 1890 provides as

under:

"(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order, may cause the ward to be arrested and to be delivered into the custody of the guardian.

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(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of Code of Criminal Procedure, 1882.

(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not itself terminate the guardianship."

20. It is settled principle of law that in custody matters,

paramount consideration is welfare of the minor children including

ethical upbringing, economic well-being of the guardian, overall

comfort of the child, contentment, health education, physical, mental

and intellectual development of the child and favourable surroundings

required to be considered and father who is a natural guardian of his

children is certainly entitled for custody of his minor children. In the

case in hand, the appellant, is the natural father of minor children

respondent Nos. 3 and 4 and he is serving with railway department. The

mother of the appellant i.e. PW-2 is also educated and she is receiving

family pension. The financial condition of the appellant and his family

members is sound. As against this, the brother and sister of Priyanka

are educated and having landed property but certainly they would

marry in future. The respondent No.1 and 2 running more than 60

and 56 years of age.

21. As per evidence of PW-3 Anand Dilip Kataria, respondent

No.3 Shubham is studying in JSS Gurukul School and the appellant is

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paying his school fees. During the course of hearing, we also interacted

with the minors in chamber and during interaction Shubham stated

that he is studying in second standard and Samrudhi stated that she is

studying in senior KG in GSS Gurukul and nothing was attributed

against the appellant. It is needless to mention here that as on today,

the trial against present appellant for the offence punishable under

sections 306, 498-A, 323, 504, 506 and 507 of the Indian Penal Code is

pending on the file of learned Judicial Magistrate First Class and the

custody of the minors- respondent Nos. 3 and 4 remained with

respondent Nos. 1 and 2 form the date of unnatural death of Priyanka.

Though, the appellant who is natural guardian of both minor children

and having the legal right of nurture and up-bring them, but the

respondent Nos. 1 and 2 denied custody of minors to the appellant.

22. It is submitted that in the case of Nil Ratan Kundu (supra)

wherein, the Hon'ble Supreme Court considered the case of Kirtikumar

Maheshankar Joshi Vs. Pradip Kumar Karunashanker Joshi (1992) 3

SCC 573 wherein custody of two minor children was sought by the

father from maternal uncle of the minors on the ground that minors'

mother had died due to unnatural death and the father was facing

charges under section 498-A of the Indian Penal Code. In the cited case,

the respondent Pradipkumar K. Joshi was married to Kumudlata and

out of wedlock, son Vishal was born in July 20, 1979 and a daughter

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Rachna @ Ritika on August 12, 1981 but Smt.Kumudlata unfortunately

died due to cardio-respiratory arrest due some chemical poisoning

and the respondent was facing criminal charges. The Police recorded

statements of the minors and on the day of said untoward incident,

both minors were 12 and 10 years old. When both minors were

interacted in Chamber, at that time they both expressed their desire to

stay with maternal uncle and not with father. Therefore, considering

the facts and circumstance of said case and after assessing the state of

mind of the children, the Hon'ble Apex Court held that it would not be

in the interest and welfare of the children to handover their custody to

their father.

However, in the case in hand, it prima facie appears that in

the month of August 2018, Priyanka visited her maternal house and

since August 2018 till 2019 she was staying there with Shubham. On

05.03.2019, she gave birth to Samrudhi and after delivery, she (wife)

cohabited with the appellant at his house. But subsequently, in the

month of September 2019, she went back to her maternal house with

both minors due to her health problem and ultimately, on 03.12.2019

she committed suicide at her maternal house and on the day of said

incident Shubham was 4 years old and Samrudhi was 9 months old.

Under these facts and circumstances, observation made by the Supreme

Court in the cited case law is not helpful to the respondents.

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23. It is significant to note that under section 6 of the Hindu

Minority and Guardianship Act, 1956, father is the natural guardian of

minor children followed by the mother and if the custody of both

minors remains with respondent Nos 1 and 2, in that circumstance,

there is every possibility of their detachment from their father/

appellant. No doubt, while considering and deciding the custody

matters, the court is not bound by the mere legal rights of the parents

or guardian but welfare of a minor child requires paramount

consideration. As per section 6 of the Hindu Minority and Guardianship

Act, father being the natural guardian of the minor child, has a

preferential right to claim custody of his children. However, in the case

in hand, the Family Court, Ahmednagar passed the impugned order

and dismissed the petition only on ground that criminal trial for the

offences under section 498-A, 306 of IPC is pending against him.

24. It is to be mentioned here that we interacted with t Shubham

in Chamber, but he simply stated that he is studying in second standard

in JSS Gurukul and he wants to stay with his grandparents i.e.

respondent Nos. 1 and 2 and except this no reason was assigned by

him. When we interacted with Samrudhi, she simply stated that she has

been studying in Senior KG. Both the minors did not attribute anything

to their father/appellant. Therefore, considering paramount welfare of

the children and taking into consideration ethical upbringing, economic

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well-being of the guardian, the overall comfort, contentment, health

education, physical, mental and intellectual development of the minors,

the appellant is entitled to the custody of the minors- respondent Nos. 3

and 4.

25. In view of the above discussion, we proceed to pass the

following order:

ORDER

(i) The appeal is allowed.

(ii) The impugned judgment and order dated 25.10.2014 passed by the Family Court, Ahmednagar in Petition No.D1/2021 is hereby quashed and set aside.

(iii) The respondent Nos. 1 and 2 are directed to forthwith handover custody of the minor Respondent No.3 Shubham and Respondent No.4 Samrudhi to the appellant.

(iv) The respondent Nos.1 and 2 shall have right to take the custody of the minors- respondent Nos. 3 and 4 on 1st and 3rd Sunday of every month till they attain majority or until further order of this Court, whichever is earlier.

(v)      No order as to costs.




(Y. G. KHOBRAGADE, J.)                       (MANGESH S. PATIL, J. )



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