1 fa1362.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1362 OF 2017
1] Baliram s/o Maroti Wawdhane,
age 49 years, occ. Agril.,
2] Renuka w/o Baliram Wawdhane,
age major, occ. Household,
Both R/o Sawargaon,
Taluka Kinwat,
Dist. Nanded …Appellants
[Original Respondents]
VERSUS
Vithal s/o Devrao Dhole,
age 30 years, occ. Service,
R/o police colony, Kinwat,
Dist. Nanded …Respondent
[Orig. Applicant]
…..
Mr. S.S.Gangakhedkar, Advocate for the appellants
Mr. S.N.Janakwade, Advocate for sole respondent
—-
CORAM : SUNIL K.KOTWAL, J.
DATE OF RESERVING
THE JUDGMENT : 30.8.2018
DATE OF PRONOUNCEMENT
OF JUDGMENT : 05.9.2018
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J U D G M E N T (Per Sunil K. Kotwal, J.)
This appeal is directed against the
order, passed by the District Judge-6, Nanded in
RJE No. 151 of 2012 directing the appellants to
hand over the custody of minor child Vighnesh
Vithal Dhole to applicant Vithal s/o Devrao Dhole
(respondent).
2. Facts leading to the institution of this
appeal are that, the appellants are in-laws of
respondent. The daughter of the appellants namely
Archana married the respondent on 16.5.2008.
Respondent and Archana were blessed with male baby
named Vighnesh, who had born on 5.7.2009. Archana
died on 29.11.2011 due to burn injuries. On the
basis of the first information report lodged by
appellant no.1, Crime No. 115 of 2018 was
registered against respondent and his family
members at Kinwat police station under Sections
302, 498A r/w 34 of the Indian Penal Code. Regular
Criminal Case No. 66 of 2011 is pending against the
respondent. Respondent was in the jail. During
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investigation of the Crime, minor child Vighnesh
came in the custody of appellants. After getting
the bail, the respondent filed Criminal
Miscellaneous No. 47 of 2012 under Section 97 of
the Criminal Procedure Code for search warrant to
get custody of his son Vighnesh, however, that
application was rejected on 8.5.2012. On
3.12.2012, respondent executed agreement in favour
of the appellants and agreed to invest Rs. Two Lac
in fixed deposit and to pay maintenance of Rs.
2,000/- per month for child Vighnesh. He also
agreed to transfer certain agricultural land, out
of his share, in the name of Vighnesh. However,
respondent did not honour the terms of agreement.
Respondent filed RJE No. 151 of 2012 in the
District Court, Nanded, for custody of his minor
son Vighnesh. That application was allowed on
25.11.2016. Therefore, this appeal.
3. Heard strenuous arguments submitted by Mr.
S.S.Gangakhedkar, learned counsel for the
appellants and Mr. S.N.Janakwade, learned counsel
for respondent.
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4. Learned counsel for the appellants
submitted that as appellants are maternal grand
parents of minor child Vighnesh and as respondent
is prosecuted for committing murder of mother of
this minor child, it is not in the interest of
welfare of the minor child to hand over him in the
custody of the respondent, who has criminal
antecedents.
5. His next limb of argument is that,
respondent did not honour the agreement executed in
favour of appellant no.1 to pay monthly maintenance
to Vighnesh and to transfer 3 to 4 acres of
agricultural land in the name of Vighnesh. The
respondent did not also invest amount of Rs. Two
Lac in fixed deposit in the name of child Vighnesh.
Sum and substance of the arguments submitted by the
learned counsel for the appellants is that minor
child Vighnesh is safe in the custody of
appellants, who are the maternal grand parents of
the child.
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6. Learned counsel for the respondent submits
that the learned District Judge properly considered
the sound financial condition of respondent as
police constable. He submits that appellants reside
in a small village in tribal area. Therefore, they
will not be able to provide proper education to the
minor child. He submits that while deciding
proceeding regarding custody of minor, the Court
has to consider only welfare of the child and not
the right of the person to claim custody. He
placed reliance on the judgment in the case of
“Mausami Moitra Ganguli vs Jayant Ganguli” [2008
(5) All MR 948], wherein the Apex Court observed
that :
” The principles of law in relation
to the custody of a minor child are
well settled. It is trite that while
determining the question as to which
parent the care and control of a child
should be committed, the first and the
paramount consideration is the welfare
and interest of the child and not the
rights of the parents under a
statute.”
7. Similar view was expressed by this Court in
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the case of “Raju @ Yunus s/o Ahmed Punjajni vs
Mohd. Imran Isani s/o Noor mohd. Isani” in First
Appeal No. 5 of 2015, decided on 27.7.2016 and in
the case of “Wahidunnissa Begum w/o Abdul Wahid and
another vs Shaikh Abdul Lal s/o Sk. Maheboob” [2000
(1) Mh.L.J. 136].
8. Thus, in view of this trite, I have to
consider welfare of the child after considering
financial status of appellants and respondent, to
ascertain where the child can get proper atmosphere
for his social and emotional development.
9. In the case at hand, the mother of the
child undisputedly died under unnatural
circumstances due to burn injuries, however, only
on the basis of this unnatural death of the mother,
at this stage, inference cannot be drawn that the
respondent is killer of the mother of the child.
Thus, pendency of murder case against the
respondent does not carry any importance so far as
welfare of the child is concerned, because the
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respondent is father of the child, and therefore,
naturally he carries love and affection with his
own child. Till today, respondent has not
performed second marriage. Therefore, with the
respondent there will be no inconvenience to the
child on account of step mother treatment.
10. So also, it cannot be ignored that the
appellants are aged parents-in-law of the child
Vighnesh. On the other hand, respondent is 30
years old young person in police service as
constable. Being Government servant, the
respondent is financially sound as well as socially
well settled. At present the respondent resides at
police colony, Kinwat, District Nanded. On the
other hand, the appellants reside at village
Sawargaon, Taluka Kinwat, District Nanded.
Sawargaon village being located in undeveloped
tribal area, definitely in the said village the
appellants would not be in a position to provide
quality education to the child Vighnesh than at
taluka place like Kinwat where the respondent
resides.
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11. Second aspect, which must be noted, is that
the respondent, who is natural guardian of
Vighnesh, immediately moved the Court of
Magistrate for making first attempt of obtaining
custody of child Vighnesh. No doubt, this attempt
failed, as his application was rejected by the
learned Magistrate. However, subsequently, he
moved the proper forum i.e. the District Court by
filing application under the Guardian and Wards Act
for custody of the child and obtained judicial
order from the District Court for custody of child
Vighnesh.
12. The aforesaid series of events certainly
indicate natural anxiety of the father to obtain
the custody of his beloved child. Considering the
near relation in between the respondent and child
Vighnesh as father and son, definitely in absence
of mother, educational and emotional development of
this child will be more better with the respondent
than aged grand parents who are not financially
sound like the respondent. Considering the date
of birth of the child, at present the child must be
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around nine years. This age is proper age for his
educational and emotional development with his own
father. I cannot doubt the love and affection of
maternal grand parents towards their grand son.
However, it cannot be ignored that despite their
love and affection with the child, in their family
the status of the minor child will be as guest
member.
13. Therefore, considering the welfare of the
child for his best educational, social and
emotional development with his natural father, who
is financially and socially well settled, I hold
that no error has been committed by the learned
District Judge while awarding custody of the child
to the respondent father. It follows that this
appeal being devoid of merits deserves to be
dismissed. Accordingly, the appeal is dismissed.
Considering the nature of litigation, I hold that
the parties shall bear their respective costs of
the appeal.
[SUNIL K.KOTWAL, J.]
dbm
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