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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
FIRST APPEAL NO. 322 OF 2017
Dr. Kshitij Yadavrao Dhumal,
age 41 years, occ. Asstt.Professor,
R/o Shahu Housing Society,
Vidyanagar, Karad, Tq. Karad,
District Satara … Appellant
VERSUS
1] Rekha Kshitij Dhumal,
age 33 years, occ. Nil,
2] Utkarsh Kshitij Dhumal,
age 10 years, occ. Nil,
Under guardianship of motor
Respondent no.1
Both R/o C/o Smt. Shantabai
Namdeo Pawar, 51, Jiwhala Banglow,
Rajendra Nagar,
Behind Toyato Showroom,
Kedgaon, Tq. and
Dist.Ahmednagar …Respondents
…..
Mr. G.V.Wani, advocate for the appellant
Mr. V.P.Latange, A.G.P for respondent no.1
…..
CORAM : K.L.WADANE, J.
Reserved on : 22.8.2017
Pronouncement on : 31.8.2017
J U D G M E N T :
The appellant presented this appeal
against the judgment and order, passed by the Ad
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hoc District Judge-2, Ahmednagar in Miscellaneous
Civil Application No. 62 of 2015.
2. The brief facts may be stated as follows.
The appellant was married to respondent
no.1 on 21.5.2003. A son namely Utkarsh
Respondent no.2 was born out of the wedlock on
2.10.2007. There arose certain differences in
matrimonial relation between the appellant and
respondent no.1, due to which respondent no.1 left
company of appellant on 13.9.2012 along with
respondent no.2.
3. The appellant had preferred petition for
divorce bearing Hindu Marriage Petition No. 244 of
2013, which is decreed in favour of present
appellant holding that respondent no.1 was
responsible for the dispute in the matrimonial
relation.
4. The relations between appellant and
respondent no.1 were strained, however,
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considering future of respondent no.2, appellant
moved an application under Section 7 of the
Guardians and Wards Act, 1980 bearing
Miscellaneous Civil Application No. 62 of 2015 for
the custody of minor respondent no.2 on the ground
that the appellant and his family members are
highly educated. The appellant himself has
completed his Ph.D. and presently is working as
Assistant Professor and is Vice Principal of the
College at Waduj, Taluka Khatav, District Satara.
So also, the father of appellant had also
completed Ph.D. and was Professor at Venutai
Chavan College, Karad. The mother of appellant
was working as a School Teacher. Respondent no.1
also passed her B.Sc. B.Ed. after marriage at
Karad and was working as Assistant Teacher at
Karad.
5. In the Trial Court, both the parties have
led their oral evidence and the learned District
Judge was pleased to reject the application,
however, has permitted the appellant to meet
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respondent no.2 on 2nd Saturday and Sunday of every
month in between 3.00 p.m. to 6.00 p.m. within one
kilometer area of the house of respondent and has
also permitted stay for four days during Diwali
holidays and for 8 days during summer vacation at
Ahmednagar city only.
6. I have heard the arguments of Mr.
G.V.Wani, learned counsel for the appellant and
Mr. V.P.Latange, learned counsel for the
respondent. Mr. Wani, learned counsel referring
to the evidence on record mentioned by the Trial
Court in its judgment has argued that the
appellant and his family members are highly
educated and having sound financial condition
appellant is intending to admit his son respondent
no.2 in english medium school and in fact he was
admitted in the english medium school, however,
respondent no.1 along with respondent no.2 left
the company of the appellant on 13.9.2012. Mr.
Wani, learned counsel further argued that the
educational facilities at Ahmednagar are not
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better than the educational facilities available
at Karad.
7. As against this, Mr. Latange, learned
counsel for the respondent has argued that since
2012 respondent nos. 1 and 2 are residing at
Ahmednagar and respondent no.2 is admitted in the
semi english medium school at Ahmednagar. Now the
education is free and from the amount of
maintenance granted to respondent no.1 she can
very well maintain and educate respondent no.2.
Since respondent no.2 is residing with respondent
no.1, respondent no.1 is taking all care for
betterment and prospects of respondent no.2.
8. From the facts and reasons recorded in the
petition, it appears that the appellant in his
evidence has stated that he remains busy in his
service and work and he has workload due to his
Ph.D. He leaves his house early in the morning
and returns at 4.00 p.m. Then the appellant has
shown ignorance in respect of school of Utkarsh at
Ahmednagar. He is not aware about the difficulties
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to get admission in the said school. He has not
gone to the said school. He is not aware about
the quality provided in the said school. He is
not aware about educational progress of his son in
that school. The above said facts have come on
record from the cross-examination of the
appellant. From the same, it appears that the
appellant, in fact, has no knowledge about the
educational facilities available at the school at
Ahmednagar. In absence of such details, it cannot
be said that educational facilities available at
Ahmednagar are not better than the educational
facilities available at Karad. Further it has
come on record that respondent no.1 is getting
amount of Rs.10,000/- per month by way of
maintenance.
9. I am of the opinion that since the total
education is free of costs, respondent no.1 can
very well maintain respondent no.2 from the amount
of maintenance. Since respondent no.1 is not
doing any job, she can concentrate on the
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educational career of respondent no.2 and his
future prospects. On the other hand, appellant
appears to be busy in his job. Further, it has
come on record that after the divorce the
appellant is intending to perform his marriage.
Therefore, if he has done so and if the custody of
respondent no.2 is given to the appellant, then
respondent no.2 has to stay with the step mother.
On the other hand, respondent no.2 is residing
with respondent no.1 since his birth and
exclusively with respondent no.1 from the year
2012.
10. From the record, it appears that on
3.6.2017 matter was referred for mediation,
however, mediation failed. On 8.8.2017 the minor
was brought in this Court and I had occasion to
have a dialogue with respondent no.2. I have
taken him in confidence initially by asking some
general questions and assessed his intelligence.
Further by asking other questions initially I
assessed the capability of respondent no.2 to
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understand the questions and observed whether he
is properly answering the questions or not. After
such assessment, by taking him into confidence I
inquired with respondent no.2 as to why he is not
ready to go with father. Also I inquired as to
why he is intending to reside with respondent
no.1. After asking these questions respondent
no.2 has answered all the questions properly and
from that it is my assessment that respondent no.2
is not at all willing to reside with the
petitioner.
11. Learned counsel Mr. Wani relied upon the
observations in the case of Mohan Kumar Rayana vs
Komal Mohan Rayana, reported in 2009 (2) Mh.L.J.
868 and has argued that the matter of custody of
child cannot be looked on the basis of emotion.
Mr. Wani, learned counsel further argued that
since respondent no.2 is residing with respondent
no.1, possibility of tutoring respondent no.2
cannot be ruled out. As already referred, I have
also assessed from respondent no.2 whether the
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answers given by respondent no.2 are based upon
the prompting by respondent no.1, but I find that
the answers given by respondent no.2 are but
natural.
12. Considering the age of respondent no.2,
the father is natural guardian, but his right to
custody of minor is neither absolute nor is
indefeasible one. Therefore, though father being
natural guardian, has preferential right to
custody of minor, but keeping in view the facts
and circumstances and wishes of the child custody
cannot be handed over to the father.
13. Looking to the liabilities of respondent
no.1 and the amount of maintenance to the tune of
Rs.10,000/-, I am of the opinion that respondent
no.1 mother can take every care for the upliftment
of respondent no.2 and she can very well provide
the education to Respondent no.2.
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14. In view of above and fact that presently
respondent no.2 is taking education in the semi
english school, it is not necessary to disturb the
custody of minor respondent no.2.
15. From the reasons recorded by learned Trial
Court, it appears that it has taken into
consideration the evidence on record properly and
has passed well reasoned order.
16. In view of above, I am of the opinion that
there is no substance in the appeal, therefore, it
is liable to be dismissed and accordingly it is
dismissed with no order as to costs.
(K.L.WADANE, J.)
dbm
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