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Baliram Maroti Wawdhane And Anr vs Vithal Devrao Dhole on 5 September, 2018

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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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