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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.331 OF 2016
Shri Sanjay s/o. Shalikram Khobragade,
Aged about 45 years,
Occupation : Service
(S.T. Mahamandal, M.S.R.T.C.,
Ganeshpeth, Nagpur),
R/o. Plot No.34, Saibaba Nagar,
Behind Bamleshwari Mandir,
Kharbi Ring Road, Nagpur. : PETITIONER
…VERSUS…
1. Aditya s/o. Sanjay Khobragade,
Aged about 16 years,
Occupation : Student.
2. Utkarsh s/o. Sanjay Khobragade,
Aged about 12 years,
Occupation : Student,
Through their guardian – Mrs. Shobha
w/o. Pundlik Vanjari (Grandmother),
Both R/o. P.No.34, Saibaba Nagar,
behind Bamleshwari Mandir,
Kharbi Road, Nagpur.
Through their Guardian,
Shobha w/o. Pundlikrao Vanjari,
Aged about 62 years,
Occupation : Housewife,
R/o. P. No.424, Near Jawahar School,
New Nandanwan, Nagpur-9. : RESPONDENTS
———————————
Ms. Ashwini Kathane along with Shri P.D. Randive, Advocate for the Petitioner.
Shri R.N. Sen, Advocate for the Respondents.
———————————
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CORAM : S.B. SHUKRE, J.
th
DATE : 10
APRIL, 2017.
ORAL JUDGMENT :
1. Learned counsel for the petitioner submits that this Court has
already modified the order of maintenance and it has been reduced to
now Rs.2,000/- each for the respondent Nos.1 and 2 and the petition is
fixed for making the statement regarding payment of arrears.
2. Perusal of the record does not show that this Court has
passed any final order in the matter. The modification order was only in
the nature of providing of interim relief and nothing more. Therefore,
the statement made across the bar is incorrect. The petition, therefore,
will have to be now finally disposed of.
3. Heard.
4. Rule. Rule made returnable forthwith.
5. Heard finally by consent.
6. It is the contention of the learned counsel for the petitioner
that the petitioner has never refused to maintain his children and that if
his children that is the respondents are refusing to stay with him, then
there is very little the petitioner can do about them. She further submits
that if the respondents agree and reside with the petitioner, it would be
very easy for the petitioner to provide them education and also
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everything that they expect. According to her, these aspects of the case
have not been considered by the learned Judge of the Family Court.
7. Learned counsel for the respondents submits that some
reasons were there for the children to choose to reside away from the
petitioner, who has admittedly performed second marriage. He submits
that the respondents, after arrival of their step-mother, found home
atmosphere as not congenial.
8. I have gone through the impugned order and I find that
whatever has been submitted on behalf of the petitioner, has been given
appropriate consideration by the learned Judge of the Family Court. I do
not find any perversity in that regard.
9. Now, the question would be whether it would be open for
this Court to substitute its own view for the view taken by the Court
below and the answer would have to be given as in the negative
considering the nature of jurisdiction exercised by this Court under
Article 227 of the Constitution of India. While exercising such an
extraordinary jurisdiction, the duty of this Court is to ensure that there is
no miscarriage of justice and this Court can interfere only when there is
a patent illegality or perversity or the order has been passed against well
settled principles of law. Equally is the settled law that not in every case
of mistake, this Court can make any interference. The impugned order
not falling in the category permissible for making interference, I am not
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inclined to allow this petition.
10. At this stage, learned counsel for the petitioner has submitted
that under the provisions of the Guardians and Wards Act, 1890 no
petition can be filed by a person claiming himself to be a guardian of
minor children unless, permission in that regard is sought and granted by
the Court. He submits that in the instant case, no such permission was
sought by the guardian. Learned counsel or the respondent submits that
this issue has been answered against the petitioner and now another writ
petition challenging the order passed by the Family Court is pending.
11. The challenge made in this petition is against the interim
order passed by the Family Court, which order, I have found, to be not
against the well settled principles of law. Therefore, it would not be
appropriate for this Court, to consider the objection regarding
non-maintainability of the petition before the Family Court, especially
when the order impugned in the present petition is of interim nature and
even a separate writ petition incorporating this challenge is pending
consideration of this Court. Then, the issue of relationship also deserves
consideration. It is an admitted fact that the respondents-children are
minors and they are the sons of the petitioner. If a father has performed
second marriage and if his children find after arrival of the step-mother
atmosphere in the house to be not comfortable and congenial for their
development, I am of the view that such a father must be mindful of the
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wishes of his own children so that, their development physical,
psychological and mental is not affected adversely in any manner. If a
father raises an objection that the grand-mother cannot file a petition
seeking maintenance on behalf of her grandsons, prima facie, I am of the
view that such an objection is likely to create an adverse impact on the
mind of the children and it may affect their development into a complete
personality. In such a case, the father should be very cautious in raising
objections. By that as it may, the matter being pending for consideration
of this Court, no final observation can be made and whatever has been
recorded so far, is only from the view point of considering the legality
and correctness or otherwise of the impugned interim order and nothing
more. In this view of the matter, I find no substance in the petition.
12. The petition stands dismissed.
13. Rule is discharged.
JUDGE
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