Dattatraya Venkat Madane vs Komal Dattatraya Madane
2023 Latest Caselaw 1902 Bom

                                                                            1039.FCA.2.2020.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                          FAMILY COURT APPEAL NO.2 OF 2020
                            WITH CA/88/2020 IN FCA/2/2020

Dattatraya s/o Venkat Madane,
Age : 36 years, Occ: Business
R/o. Khadak Hanuman Chowk
Latur.                                                   ...     APPELLANT

                 VERSUS

Sau. Komal w/o Dattatraya Madane,
Age : 28 years, Occu: Household,
R/o. Dhanora (B) Mandal Indravelli,
Dist. Adilabad (Telangana),                              ...       RESPONDENT

                                     ...
Mr. Satish S. Manale, advocate for appellant
Mr. Sunil S. Bhagore advocate for respondent
                                     ...

                                    CORAM           : MANGESH S. PATIL AND
                                                      S.G. CHAPALGAONKAR, JJ.

                                    Reserved on     : 27.01.2023
                                    Pronounced on   : 27.02.2023
JUDGMENT :

Admit.

2. At the request of both the sides the appeal is heard finally at the

stage of admission.

3. This is an appeal under Section 19 of the Family Courts Act by

the father of Sakshi, a girl aged about 11 years being aggrieved by the

rejection of his petition filed under Section 25 of the Guardians and Wards

Act read with Section 6 of the Hind Minority and Guardianship Act, seeking

permanent custody.

1039.FCA.2.2020.odt

4. The learned advocate for the appellant would submit that the

respondent is quarrelsome and adamant and at time she becomes violent.

Even she was required to be treated by a psychiatrist. The appellant being

the father and natural guardian has preferential right to have her custody.

The appellant has been residing at Latur which is a district place and is

known for having good facilities of education. As against which, the

respondent has been residing at her parental house in a village from

Adilabad District of Telangana State. Welfare of the child being of

paramount importance, Sakshi can be brought up very well while being in

the custody of the appellant in his house at Latur rather than with her

mother in a remote village.

5. Mr. Manale for the appellant would further submit that ignoring

the betterment of the child the respondent has been unnecessarily refusing

custody. When the couple was together she was admitted to a well known

school at Latur. No evidence was led before the Family Court by the

respondent as to what kind of education Sakshi has been taking at Village

Dhanora, District Adilabad. The learned Judge of the family court has taken

emotional decision rather than an intelligent one. There was nothing before

the family court to demonstrate as to how the petitioner will not be able to

provide better life and education to Sakshi so that some exception could

have been thought of to the normal rule of a right of the father to claim

custody of a child which is no longer an infant.

6. The learned advocate for the respondent submitted that both

1039.FCA.2.2020.odt

the sides had led evidence before the family court which has appreciated all

facts and circumstances and evidence while reaching a plausible conclusion.

Considering the then age of Sakshi of around 9 to 10 years the respondent

mother was rightly found to be a person with whom Sakshi would be

brought up well. She has all the love and affection being a natural mother.

As against this, the petitioner in spite of having fathered the child had barely

cared for her betterment. He never bothered to go to Dhanora to meet

Sakshi and if this is his behavior and attitude, the inference drawn by the

family court that he would not be in a better position to look after Sakshi

cannot be questioned.

7. Learned advocate for the respondent would further submit that

the petitioner is a businessman. He has been residing with his aged parents

who are infirm. Even his father during testimony stated that Sakshi can be

brought up with the help of his another daughter-in-law cohabiting with

him. But she has her own child to look after. Since the petitioner would be

out of home for several hours in connection with his business, it was

doubtful if there would be somebody to look after Sakshi's welfare. The

family court has borne in mind all the aforementioned aspects and has

reached a reasonable conclusion.

8. We have carefully considered the rival submissions and perused

the impugned judgment as well as the record. There cannot be any doubt

about the fact that the petitioner being the father of Sakshi, in view of the

provision of Section 6 of the Hindu Minority and Guardianship Act, he will

1039.FCA.2.2020.odt

have a preferential right. However, simultaneously, in view of Section 13 of

that Act, welfare of the minor has to be of paramount consideration. It is

therefore conspicuous that the provision of Section 6(a) is regulated by

Section 13(2). It is therefore trite that welfare of the child essentially is

important and to be looked into and it would override any statutory

provision. The learned Judge of the family court has expressly referring to

the aforementioned provisions has kept this principle in mind.

9. As can be appreciated, except the allegations and counter

allegations in respect of the behavior of the appellant and the respondent,

there is not much of a dispute on facts. The appellant is a permanent

resident of Latur and is a businessman residing with his parents, his brother,

sister-in-law and their issue and that he is a graduate. There is also no

dispute about the fact that he has been staying in Latur which is well known

for its educational facilities. There is also no quarrel that he is financially

sound as compared to the respondent and her parents. Similarly, there is no

dispute that the respondent is matriculate and has been residing at village

Dhanorae in Adilabad District, Telangana and in all probability the place

may not be having all the education facilities that are available at Latur.

10. It is in view of such a state of affairs coupled with the fact that

Sakshi is about to reach 13 years we had called the petitioner and the

respondent to the chamber and tried to convince them that at least looking

to the future of Sakshi they should come out with some mutual arrangement

regarding her custody. Since we feel that rather than the Court foisting

1039.FCA.2.2020.odt

some decision it was always better that they would take a conscious decision

intelligently rather than emotionally. However, the attempt has failed as

they could not reach any agreement.

11. Having been left with no alternative we have heard the

arguments finally and even had free discussion with Sakshi in our chamber.

We found that though she was found to be of the age of enough

understanding she was also in a dilemma. She could not express it in so

many words but from her demeanor we could gather that she was not able

to comprehend the situation when we asked her if she would want to stay

with her mother or would like to be with her father albeit she repeatedly

said in a low tone that she would be happy to be with the mother. In our

considered view, our interaction with the girl has made us to believe and

reach a conclusion that it would be emotionally challenging to her to now

part ways with her mother at this age. Therefore, according to us she was

inclined to stay with her mother albeit at the back of mind she could have

even a second thought of going to Latur and to stay with the father.

12. It is necessary to note that the couple has separated since prior

to 2015. Sakshi was born in 2010. Meaning thereby that she has been

residing with the respondent mother at Dhanora since she was barely 5

years old that is for last 8 years. She will be completing 13 years of age this

May. During this long tenure of last 8 years she had hardly come down to

Latur or the appellant had hardly met her by going to Dhanora. Obviously,

over a period of time at this age, she would be emotionally attached to the

1039.FCA.2.2020.odt

respondent mother and there will not be such a bond between her and the

appellant father. Needless to state that Sakshi being a girl child reaching

puberty in a near future, it would be in her best interest that she continues

to be in the custody of her mother with whom she has been leaving for last

almost 13 years most part of which is even in the absence of appellant

father. Shifting her place at this age when company of the mother would be

most essential to convince and reassure the girl, we are of the firm view that

changing the custody at this age to the appellant would certainly be

traumatic and contrary to the welfare of Sakshi.

13. True it is that the appellant is financially sound as compared to

the respondent's parents. It is also true that Sakshi has to lead her life with

her mother in a small village like Dhanora and would be deprived of the

education facilities available at Latur and the comfort of appellant - father's

wealth and the comfort of his house. But then in our considered view these

materialistic things cannot over take the requirement of the company of a

natural mother at the age of puberty.

14. If at all, all these materialistic things are to be taken into

consideration, and if really the appellant is interested in the well being of

Sakshi, he can make necessary arrangement so that she leads a comfortable

life and gets better education even while staying with the respondent

mother at Dhanora. He cannot be permitted to lure Sakshi to claim custody

on the basis of his being affluent. He can provide sufficient money for her

upbringing even while she is residing with the respondent rather than

1039.FCA.2.2020.odt

showing his assets and expecting those to weigh with the courts in allowing

him to have her custody. To repeat, precisely for this reason, we had

expressly told the appellant and the respondent that they could think for the

betterment of Sakshi and had extended an opportunity to them to reach to

some amicable arrangement keeping in mind her welfare and well being.

15. The learned Judge has scanned the evidence carefully and has

reached a plausible conclusion while refusing to hand over the custody of

Sakshi to the appellant. He has also pointed out as to how, the respondent

would be available to Sakshi round the clock which may not happen if she is

in appellant's custody. His parents are old. Even his father in his testimony

was of the view that they would look after Sakshi with the help of his

another daughter-in-law who herself has a son. The learned Judge has

rightly reached a conclusion that in all probability Sakshi may not be looked

after well at appellant's home.

16. True it is that there are certain allegations about mental illness

of respondent but no evidence was led before the family court about it much

less to prove that because of it she would be unable to carefully look after

Sakshi. In our view, no error is committed by the learned Judge in

appreciating the evidence and reaching the conclusion. The decision is

sound and cannot be reversed.

17. However, even if custody is being refused to the appellant, some

kind of arrangement for visitation rights should have been prescribed by the

family court which it has failed to do. There is no dispute about the fact

1039.FCA.2.2020.odt

that the appellant is a businessman stationed at Latur and the respondent is

residing in Village Dhanora of Adilabad District and the two places are more

than 300 km apart. Even both the learned advocates are unanimous that

there is no direct connectivity between these two places. Keeping in mind

these state of affairs, we feel that the following arrangement would meet the

ends of justice in the peculiar facts and circumstances:

i. The Appeal is dismissed. However, the appellant is permitted to

meet Sakshi at any time at the parental home of the respondent

in Village Dhanora Tq. Adilabad, Telangana State.

ii. He is entitled to interact with Sakshi through video and audio

call on ever Saturday and Sunday as per Sakshi's convenience.

iii. Sakshi shall remain in appellants custody for one week during

Diwali Vacations and two weeks in Summer Vacations as per the

convenience of all the three individuals i.e. the appellant, the

respondent and Sakshi. It would be the responsibility of the

appellant to fetch her from Dhanora and drop her back.

18. The appeal is dismissed with above arrangements. Pending civil

application is disposed of.

   (S.G. CHAPALGAONKAR, J.)                             (MANGESH S. PATIL, J.)




habeeb