Bombay High Court
Mr. Vaibhav Subhash Sakre vs Dr. Umesh Hari Bobale And Anr on 4 May, 2023
Bench: P. K. Chavan
2023:BHC-AS:13531 676-2019-FA=.doc
Uday S. Jagtap
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 676 OF 2019
WITH
CIVIL APPLICATION NO. 636 OF 2019
IN
FIRST APPEAL NO. 676 OF 2019
1. Subhash Sakharam Sakre
2. Mr. Viabhav Subhash Sakre
3. Mrs. Prajakta Vaibhav Sakre
All adults R/at Room No.304,
Building No.6, Bipin Smriti Bldg.,
Pratiksha Nagar, Sion (East),
Mumbai - 400 022 .. Appellants
Vs.
Smt. Ujwala Hari Bobale
Aged - 67 years. Occ. Housewife
R/at Kohinoor Tower, Balgovinddas
Road, Dadar (W), Mumbai - 400 028 .. Respondent
ALONG WITH
FIRST APPEAL NO. 677 OF 2019
WITH
CIVIL APPLICATION NO. 635 OF 2019
IN
FIRST APPEAL NO. 677 OF 2019
Vaibhav Subhash Sakre
Adult, Occ. Service
R/at Room No.304,
Building No.6, Bipin Smriti Bldg.,
Pratiksha Nagar, Sion (East),
Mumbai - 400 022 .. Appellant
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676-2019-FA=.doc
Vs.
1. Dr. Umesh Hari Bobale
Aged - 36 years, Occ. Dentist
R/at Kohinoor Tower, Balgovinddas
Road, Dadar (W), Mumbai - 400 028
(Presently lodged in Arthur Road Jail)
2. Smt. Ujwala Hari Bobale
Aged - 67 years, Occ. Housewife
R/at Kohinoor Tower, Balgovinddas
Road, Dadar (W), Mumbai - 400 028 .. Respondents
.....
Mr. Niranjan Shimpi i/b Ms. Seema M. Adate for the appellants
Mr. Kunal M. Damle for the respondent/s
.....
CORAM : PRITHVIRAJ K. CHAVAN, J.
DATED : 4th MAY, 2023
P.C.
1. These two appeals are disposed of by a common order,
which are preferred under Section 47 of the Guardians and
Wards Act, 1890.
2. The appellants in both the appeals are aggrieved with the
impugned order dated 3rd May, 2018 passed by the City Civil
Court in Guardian Petition No. 6 of 2017, by which their
application came to be rejected. The learned Judge, however,
allowed Petition No.17 of 2017 filed by the respondent - Ujwala
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H. Bobale, maternal grandmother of Chirayu (for short "minor
child").
3. The appellant no.1 - Subhash S. Sakre is the maternal
grand-father of the minor child and father of deceased Tanuja
Umesh Bobale.
Appellant no.2 - Vaibhav S. Sakre is the maternal uncle of
the minor child and brother of deceased Tanuja Bobale.
Appellant no.3 - Prajakta V. Sakre is the wife of appellant
no.2.
Respondent - Ujwala Umesh Bobale is the paternal grand-
mother of the minor child.
4. Vaibhav S. Sakre has also filed a separate appeal being
Appeal No.677 of 2019 as already stated above.
5. Briefly stated the facts are - deceased Tanuja Umesh Bobale
was the mother of the minor child. Husband of Tanuja Bobale
and father of the minor child, namely Umesh Bobale, who is a
dentist by profession, committed Tanuja's murder on
11th December 2016. He is in jail and facing a trial at the City
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Civil and Sessions Court for the offence punishable under Section
302 of the Indian Penal Code.
6. The minor child is the only son of deceased Tanuja and
Umesh Bobale. He was born on 17 th May, 2012. The relations
between the deceased and her husband were very much strained,
for Umesh was suspecting her fidelity. Since he had suspected the
paternity of his son, a DNA test was also carried out. A case
under Domestic Violence Act had also been filed by the deceased
against her husband and mother-in-law. However, the matter was
subsequently settled. It is the contention of the appellants that the
minor child witnessed the murder of his mother and has already
testified in the Sessions Court to that effect.
7. Admittedly, from the date of the incident of murder, the
minor child has been in the custody of the appellant - Vaibhav S.
Sakre - his maternal uncle.
8. Appellant - Vaibhav S. Sakre as well as the paternal
grandmother - Ujwala Hari Bobale moved an application under
the Guardians and Wards Act before the City Civil Court,
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Greater, Mumbai seeking custody and their appointment as
guardians of the minor child under the said Act.
9. Learned Judge by the impugned order dismissed Petition
No.6 of 2017 preferred by appellant - Vaibhav S. Sakre and
allowed the Petition No.17 of 2017 preferred by paternal
grandmother - Ujwala H. Bobale.
10. I heard learned Counsel for the appellants at length. I have
perused the impugned order. I have interviewed the minor child
in the Chamber in order to consider as to who would be the best
person to be appointed as a guardian of the minor child, who
would be in a position to ensure his welfare.
11. Section 17 of the Guardians and Wards Act provides as to
the matters to be considered by the Court in appointing
guardians. Section 17 reads thus :-
"17. Matters to be considered by the Court in
appointing guardian - (1) In appointing or declaring the
guardian of a minor, the Court shall, subject to the
provisions of this section, be guided by what, consistently
with the law to which the minor is subject, appears in the
circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the
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minor, the Court shall have regard to the age, sex and
religion of the minor, the character and capacity of the
proposed guardian and his nearness of kin to the minor,
the wishes, if any, of a deceased parent, and any existing
or previous relations of the proposed guardian with the
minor or his property.
(3) If the minor is old enough to form an intelligent
preference, the Court may consider that preference.
(4) (Sub-S. (4) omitted by Act 3 of 1951, S.3 and Sch.)
(5) The Court shall not appoint or declare any person
to be a guardian against his will."
12. Essentially, a balance has to be struck between the
attachment and sentiments of the parties towards the minor
children as well as welfare of the minor, which is of paramount
importance.
13. Having considered the claims made by the appellants on
one hand and the maternal grandmother on the other, who is
about 67 years of age and having considered the wish of the child
by having a conversation with him in the Chamber, alone, and
also having taken into account the capacity of the minor child to
understand the entire circumstances, I find that the appellants
herein, more particularly, appellant - Vaibhav Subhash Sakre
would be best person to be appointed as a guardian of the minor
child rather than respondent - Ujwala Hari Bobale.
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14. It is pertinent to note that father of the minor child had
committed murder of his mother. The minor child being an eye-
witness, would definitely have a deep rooted impact of the said
incident on his mind. Having suffered a trauma of such a
magnitude at such a tender age by the minor child, it would not
at all be feasible to appoint his paternal grandmother as a
guardian and to allow the child to remain in the same house,
where his mother was murdered. At this stage, it would be far
fetched to anticipate the outcome of the Sessions trial, however,
in any case, considering the incident in question, no sane man
would even think of appointing the paternal grandmother as his
guardian. Even if the accused / father of the minor child gets
acquitted of the charge, considering the fact that the minor child
was an eye-witness to the incident, it would not at all be advisable
or proper to appoint respondent - Ujwala H. Bobale as a
guardian. It would be very difficult to presume that in case of his
acquittal, father of the minor child would not try to have an
access with him, more particularly in light of the fact that the
minor child has already deposed against his father before the
Sessions Court. In that case, there could be danger to his life and
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limb at the hands of his father.
15. Another important aspect is that after moving an
application seeking custody for the guardianship of the child by
the appellants, the paternal grandmother moved a separate
application. Had there been real intention on the part of the
paternal grandmother to get herself appointed as a guardian, she
would not have waited for an application to be moved by the
appellants.
16. Another important aspect is that the respondent -
grandmother was also an accused in Domestic Violence
proceedings initiated by the deceased being DV Case No. 44/DV/
2016. There were specific allegation of cruelty against the
respondent also. As such, subsequent application by the
respondent - grandmother can be said to be a counter blast to the
application moved by the appellants.
17. It reveals from the record that after filing their evidence on
affidavit by the appellant in the City Civil Court, no cross-
examination was conducted on behalf of the respondent -
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grandmother.
18. It is apparent from the impugned order that the learned
Judge has failed to appreciate all the facts and circumstances in its
correct prospective as he has ignored the basic object of the
Guardians and Wards Act. Learned Judge has also lost sight of
the fact that ever since the death of the mother of the minor
child, he has been staying with the appellants, who have been
looking after the welfare of the minor.
19. It is apparent from the record that the appellant's family
consists of the appellant, his wife, minor daughter and aged
father, who are physically, economically, mentally and morally fit
to take proper care of the minor child. On the other hand, the
respondent is an aged woman staying alone, who may not be
physically as fit as that of the appellants to take future care of the
minor child.
20. It is apparent from the impugned order that the learned
Judge has also failed to appreciate the fact that during her
lifetime, deceased Tanuja had already informed the Police about
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the threats to her life by her husband as well as ignorance on his
part to take care of the minor child. It is brought to my notice
that the appellants have admitted the minor child in a reputed
school and he has been in their custody since 11th December 2016
i.e. from the date of murder of his mother.
21. The appellants have also brought to my notice that the
minor child has been doing quite well in his academics and has
received various medals by participating in extra curricular
activities, which is possibly due to the love, care, support and
affection by the appellants.
22. So far as income is concerned, the appellants are on better
footing than that of the respondent grand-mother and are
economically sound in comparison with the respondent.
23. The learned trial Judge has also failed to appreciate the fact
that the father of the minor child had suspected paternity of his
son by compelling the deceased to undergo a DNA test. The
respondent herein had not objected the said conduct of her son.
24. Learned Judge had observed in the impugned order, more
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particularly, in para 9 that when he interrogated the child in the
Chamber in the presence of all the parties and asked the child as
to where he was intending to go or to stay, the child pointed his
finger towards his grandmother, Ujwala. This is quite shocking
and surprising, firstly, as to how the child could be interrogated.
The learned Judge ought to have interviewed the child alone in
the chamber without the presence of any of the parties in a quite
conducive manner, looking to the age and the trauma the child
had suffered after the incident. Secondly, merely because the
child has pointed his finger towards his grandmother, would not
mean that he was willing to stay with his paternal grandmother.
25. Learned Judge has also misinterpreted a judgment placed on
record on behalf of the appellants in case of Kirtikumar
Maheshankar Joshi Vs. Pradipkumar Karunashankar Joshi,
(1992) 3 SCC 573. In the said case, custody of minor children
was sought by the father as well as maternal uncle. There was an
unnatural death of mother of the children. The children were
living with their maternal uncle. The father was facing a charge
under Section 498-A of the Indian Penal Code. Before the
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Supreme Court, the children have expressed their willingness to
remain with their maternal uncle, who, according to them, was
looking after them very well. They made it clear that they do
not wish to live with their father. The Supreme Court found the
children to be intelligent enough to understand their well-being.
It is observed that though the father, being a natural guardian, has
a preferential right to the custody, but after talking to the
children and assessing their state of mind, it is held that it would
be in the interest and welfare of the children to handover their
custody to their maternal uncle instead of their father. The ratio
laid down by the Supreme Court hereinabove is squarely
applicable to the present set of facts.
26. The learned Judge could not distinguish the said judgment.
The learned Judge has, therefore, utterly failed to take into
consideration not only the wish of the child in a proper manner
but all the other circumstances discussed hereinabove.
27. Having regard to the aforesaid discussion, the appellant -
Vaibhav S. Sakre, indeed, shall have a preferential right to be
appointed as a guardian of the minor child.
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28. Consequently, the appeals are allowed.
29. The impugned orders passed in Petition Nos.6 of 2017 and
17 of 2017 are quashed and set aside.
30. It is hereby declared that the appellant - Vaibhav S. Sakre is
a guardian of the minor child. He is appointed as a guardian of
the minor child. The custody of the minor child will remain
with the appellant - Vaibhav S. Sakre. The guardian shall
perform all his duties qua the minor child as provided under the
Guardians and Wards Act.
31. Both the appeals are disposed of in the aforesaid terms with
no order as to costs.
32. In view of the disposal of the appeals, nothing survives in
the applications and the same are also disposed of.
(PRITHVIRAJ K. CHAVAN, J.)
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