Dr. Kshitij Yadavrao Dhumal vs Rekha Kshitij Dhumal And Anr on 31 August, 2017

1 fa322.17

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

::: Uploaded on – 04/09/2017 05/09/2017 01:30:56 :::
2 fa322.17

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,

::: Uploaded on – 04/09/2017 05/09/2017 01:30:56 :::
3 fa322.17

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

::: Uploaded on – 04/09/2017 ::: Downloaded on – 05/09/2017 01:30:56 :::
4 fa322.17

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

::: Uploaded on – 04/09/201705/09/2017 01:30:56 :::
5 fa322.17

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

::: Uploaded on – 04/09/2017 05/09/2017 01:30:56 :::
6 fa322.17

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

::: Uploaded on – 04/09/2017 05/09/2017 01:30:56 :::
7 fa322.17

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

::: Uploaded on – 04/09/2017 05/09/2017 01:30:56 :::
8 fa322.17

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

::: Uploaded on – 04/09/2017 05/09/2017 01:30:56 :::
9 fa322.17

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.

::: Uploaded on – 04/09/2017 05/09/2017 01:30:56 :::

10 fa322.17

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

::: Uploaded on – 04/09/2017 05/09/2017 01:30:56 :::

Leave a Comment

Your email address will not be published. Required fields are marked *