Bombay High Court
Ravindra S/O Prakash Kharat vs Kalpana W/O Ravindra Kharat on 5 July, 2022
Bench: S. G. Dige
1
1272.22FA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.1272 OF 2022
(WITH CIVIL APPLICATION NO.8564 OF 2022)
Ravindra S/o Prakash Kharat
Age : 29 years, Occ : Nil,
R/o Karanjkhed, Tq. Kannad,
Dist. Aurangabad.
. .. APPELLANT
(Orig. non-applicant)
VERSUS
Kalpana W/o Ravindra Kharat
Age : 25 years, Occ : Household,
R/o Near New High School, Harsul,
Tq. & Dist. Aurangabad.
. ..RESPONDENT
(Ori. Applicant)
...
Mr.Y.K. Bobade, Advocate for the appellant.
Mr.P.P. Uttarwar & Mr.P.S. Mundhe, Advocates for
respondent.
...
CORAM : S.G.DIGE, J.
RESERVED ON : 24.06.2022
PRONOUNCED ON : 05.07.2022
JUDGMENT :
1. This appeal is directed against the order passed
by the learned District Judge-6, Aurangabad in Civil M.A.
No.40/2022 directing that the permanent custody of the
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minor child Kartik shall be given to his mother
(respondent).
2. The mother (respondent) had filed the
application under section 25 of the Guardians and Wards
Act, 1890 claiming permanent custody of her minor son
Kartik, who was in custody of appellant.
3. The respondent and the appellant got married
in February, 2019. Out of their wedlock, two sons namely
Kartik and Atharv are born. Kartik is 2 and 1/2 years old.
The marital relations between the appellant and the
respondent are strained. There were litigations between
them. After that, they resided together to solve the disputes,
but in vain. The respondent is residing with her parents.
Minor Kartik is in custody of the appellant, whereas the
younger son Atharv is in custody of the respondent. In
application it was alleged that the appellant is a teacher. So
he remain out side the house for whole day. He cannot take
care of the minor Kartik. There is no one in the house of
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the appellant to look after son Kartik. Kartik is 2 and 1/2
years old. Hence, his custody was sought permanently by
the respondent.
4. The husband (appellant) filed say to the said
application. He denied all the allegations made against him.
In the say, it is stated that the respondent is harassing the
appellant. The respondent herself has left the minor Kartik
with the appellant. The respondent has not inquired about
minor Kartik for one year. The appellant has tried to stay
with the respondent, but the respondent is not giving
response to the efforts of the appellant. It is further stated
that the appellant is taking proper care of a minor Kartik.
The minor Kartik is taking education in Anganwadi. The
respondent is not able to take proper care of minor Kartik.
The respondent is pressurizing the appellant to live
separately from his parents. The respondent's behaviour
with the minor son Kartik is not proper. The appellant is
trying to save the future of minor Kartik. The place where
the respondent is at presently residing is not suitable for
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stay of minor Kartik. The appellant is father of Kartik.
Therefore, it is in the interest of the child the father should
have custody of minor child.
5. The learned District Judge considering the
evidence on record came to the conclusion that the welfare
of the child is paramount consideration and for a child of 2
and 1/2 years, undoubtedly, the mother would be the
proper person to have the custody of the child. The
appellant is teacher, when he goes for duty Kartik would
remain with the old parents of the appellant. Thus they may
not be in a good position to take overall care of Kartik. As
against this, the respondent is residing with parents and
married brothers. Respondent has no job, for whole day she
can look after Kartik. Moreover, there are other two family
members in the family, who are also available with the
respondent to look after the minor. The younger brother of
Kartik is already in custody of the respondent. Thus, Kartik
may get company and love and affection of younger
brother. Hence, the learned District Judge directed to give
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permanent custody of Kartik to the respondent. The visiting
rights are given to the appellant on every Saturday of each
month between 11.00 a.m. to 2.00 p.m. The appellant is
given liberty to have talk with Kartik on mobile phone on
every Sunday in between 10.00 a.m. to 11.00 a.m.
6. Heard Mr.Y.K. Bobade, the learned counsel for
the appellant and Mr.P.P. Uttarwar, the learned counsel for
respondent.
7. The learned counsel for the appellant in
assailing the impugned judgment of the learned District
Judge raised following contentions :-
(a) The application filed by the respondent was
required to be filed under section 12 of the Guardians and
Wards Act, 1890.
(b) The learned District Judge ought to have
considered that the love and affection of the father is
equally important for overall development of the minor.
(c) The learned District Judge has failed to consider
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that the appellant can very well maintain minor Kartik and
there are other family members of the appellant to take care
of Kartik.
(d) The minor son Atharv is already in custody of
the respondent. The appellant is taking proper care in
respect of education of Kartik.
(e) The learned counsel for the appellant relies
upon the judgments reported in the case of Arun Sharma
Vs. Roxann Sharma reported in 2015(1)Mh.L.J. 326, Sau
Anasuyabai V/s Trymbak Balwant Rakshe reported in
MANU/MH/0679/1985 and Ratnamala Vs. Pandurang
Udhav Zate reported in MANU/MH/1611/2021.
8. It is the contention of the learned counsel for
the respondent that the respondent is the mother of Kartik.
Kartik is 2 and 1/2 years old. Hence he requires love of the
respondent. The appellant is a teacher. He required to
attend the duty daily, there is no one in the family of the
appellant to look after Kartik. Having the custody of the
younger son Atharv is no bar to claim custody of Kartik.
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9. I have heard both the learned counsel. Perused
the order passed by the learned District Judge. Before I
proceed to examine the rival contentions, it is necessary to
see settled law.
10. It is settled principle of law that any matter
concerning a minor, has to be considered and decided only
from the point of view of the welfare and interest of the
minor. In dealing with a matter concerning a minor, the
Court has a special responsibility and it is the duty of the
Court to consider the welfare of the minor and to protect
the minor's interest. What would be in the welfare of the
minor is to be judged in all attending circumstances.
11. In the present case, the minor Kartik is 2 and
1/2 years old. Hence he requires love and affection and
proper care, which is normally expected from the mother. It
is settled law that in respect of child of tender age, the
mother is more suitable to have the custody. The appellant
is working as a teacher. So he may not remain with Kartik
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for whole day. Though it is pointed out that the appellant's
parents and other family members are there to look after
Kartik, but other family members cannot take a place of
mother or father. The respondent is staying with her
parents. She has no job. She does housework, she can look
after the welfare of Kartik. Moreover, there are other family
members in their family to look after Kartik. Younger
brother of Kartik is in custody of the respondent, Kartik can
get company of his younger brother Atharv.
12. Application was filed under Section 25 of the
Guardians and Wards Act. It reads as under :-
"Section 25:-Title of guardian to custody of ward.-
(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
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arrested and to be delivered into the custody of the
guardian.
(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 the
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 of itself terminate the guardianship."
13. This section does not state about giving
permanent custody, the learned District Judge has granted
permanent custody to the respondent, which is illegal. The
appellant is father of the minor Kartik. The permanent custody
cannot be given to the respondent. Section 6 (a) of the Hindu
Minority and Guardianship Act, 1956 reads as under :-
"Section 6(a)- in the case of a boy or an
unmarried girl-the father, and after him, the
mother; provided that the custody of a minor
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who has not completed the age of five years shall
ordinarily be with the mother;"
14. This section provides that the mother is supposed
to have the custody of the child who has not completed the
age of 5 years. Therefore, in my view, the custody of minor
Kartik shall be with respondent till he attains five years of age.
15. The learned counsel for the appellant has
contended that the application ought to have been filed under
section 12 of the Guardians and Wards Act instead under
section 25. It appears from record that such contention was
not raised before the learned District Judge nor even in the
memorandum of appeal filed before this Court. In this view, it
is futile to urge on this point now.
16. I have gone through the case laws cited by the
learned counsel for the appellant. The facts in the cited cases
and the case at hand are different, hence not applicable to this
case.
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17. In view of the above, the appeal is partly allowed.
The custody of Kartik shall be given to the respondent till he
attains five years of age. The appellant is entitled to file
appropriate proceedings after completing five years age of
Kartik.
18. The First Appeal is disposed of accordingly.
19. In view of the disposal of Appeal itself, nothing
survives in Civil Application No. 8564/2022 and hence the
same stands disposed of.
(S.G.DIGE, J.)
SGA
