IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.815 OF 2018
WITH
CIVIL APPLICATION NO.2625 OF 2018
IN
FIRST APPEAL (STAMP) NO.3197 OF 2018
1. Raju Uttam Trimbake,
Age : 49 years, Occu.
Agri. and Business
2. Sau. Meerabai w/o Raju Trimbake,
Age : 42 years, Occu. Household
Both r/o Near Mahadeo Temple, APPELLANTS/
Nepti, Taluka and District APPLICANTS
Ahmednagar (Orig.Opponents)
VERSUS
Bhausaheb Bhimaji Shinde,
Age : 32 years, Occu. Agri.,
R/o Pimpalgaon Malvi, RESPONDENT
Tal. Nagar, District Ahmednagar (Orig. Applicant)
—-
Mr. D.D. Chaudhari, Advocate for the
appellants/applicants
Mr. J.R. Patil, Advocate for the respondent
—-
CORAM : SUNIL K. KOTWAL, J.
JUDGMENT RESERVED ON : 15th APRIL, 2019
JUDGMENT PRONOUNCED ON : 24th APRIL, 2019
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JUDGMENT :
This appeal is directed by original opponent
Nos.1 and 2 in Civil Misc. Application No.305 of 2015,
against the judgment and order passed by District Judge-
4, Ahmednagar, directing the opponents to handover the
custody of children Master Rudraksh Bhausaheb Shinde and
Miss Aachal Bhausaheb Shinde to the then applicant
Bhausaheb Bhimaji Shinde. In this appeal, the
appellants are original opponent Nos.1 and 2,
respectively. Respondent is the original applicant.
Hereinafter, the parties are referred in accordance with
their status in the original proceeding as applicant and
opponent Nos.1 and 2.
2. The facts leading to institution of this appeal
are that applicant, who is the son-in-law of the
opponents, filed application under Section 25 of the
Guardian and Wards Act, 1890 for custody of minor
children Master Rudraksh and Miss Aachal. In that
proceeding, the undisputed facts in between parties are
that applicant is biological father of Master Rudraksh
and Miss Aachal. On 26th February, 2008, applicant
married the daughter of opponent Nos.1 and 2 namely
Sonali. Applicant and Sonali were blessed with children
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namely Rudraksh and Aachal. Applicant and Sonali
cohabited at village Pimpalgaon Malvi, Taluka Nagar,
District Ahmednagar along with their both children. On
26th October, 2015, Sonali committed suicide.
Thereafter, on report lodged by opponents to Police
Station, MIDC, offence was registered against the
applicant and his relatives under Sections 498, 306 read
with Section 34 of the Indian Penal Code. The applicant
was arrested by police in the said crime alongwith his
relatives. When applicant was in jail, that time,
opponents took the minor children of applicant and late
Sonali, in their custody and since thereafter, the minor
children are in the custody of opponent Nos.1 and 2.
3. After release from the jail, applicant filed
application before District Court, Ahmednagar under
Section 25 of the Guardian and Wards Act, 1890 for
custody of his minor children contending that being
father of the children and for proper care and
development of the minor children, the applicant is
entitled to custody of his own minor son and daughter.
4. By filing written statement (Exh-14), opponent
Nos.1 and 2 opposed the application, contending that due
to illtreatment given by the applicant to their daughter
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Sonali, she committed suicide on 26 th October, 2015.
Applicant is lazy person and he would not be in a
position to maintain his children properly. On the
other hand, opponents are taking due care regarding
development and education of his minor children who are
also grandchildren of the opponents. At present, Aachal
has taken admission in reputed school at Pune and for
welfare and future of the children, they should be
retained in the custody of opponents.
5. After considering the evidence placed on record
by both the parties, the learned Trial court allowed the
application for custody of children and directed the
opponents to handover their custody to the applicant.
The access of children was given to the opponents and
their relatives, whenever they desire.
6. Heard Shri D.D. Chaudhari, learned counsel for
the appellants/opponents and Shri J.R. Patil, learned
counsel for the respondent/applicant.
7. Learned counsel for the opponents submits that
the opponents being maternal grandparents of children,
for better education and future development of the
children, their custody with the opponents is justified.
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He submits that opponents are even financially sound
than the applicant. He has drawn my attention towards
cross-examination of the applicant wherein the applicant
admits the sound financial condition of the opponents.
8. Learned counsel for the applicant submits that
being biological father of minor children, only the
applicant can take proper care regarding development and
education of the children. He submits that even the
applicant is owner of landed property and he is
financially sound to look after welfare of his own
children. He submits that being natural guardian of
children, the applicant has a right claim custody of the
children.
9. It is to be noted that at the time of death of
the wife of applicant, his son Rudraksh was about 7
years old and daughter Aachal was 4 years old. Thus, at
that relevant time, they were not of the age of
understanding. At the time of recording evidence in the
proceeding for custody of children, the Trial Court has
personally interviewed the children and found that the
children have no grievance even against their father
(applicant). However, children expressed their
willingness to continue their residence with the
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opponents.
10. It is to be noted that considering the minor
age of both children and their capacity to understand,
the situation and their future prospect, over much
importance cannot be given to the willingness of
children to continue their residence with their maternal
grandparents. While considering the dispute regarding
custody of minor children, the Court is expected to give
paramount consideration to the welfare of the children.
It cannot be ignored that the applicant being father of
the children, he is also natural guardian of the minor
children under Section 6 of the Hindu Minority and
Guardianship Act, 1956. So also, considering the close
relation of applicant with his own son and daughter, for
the psychological and sociological development of his
minor children, their residence with their own father is
more appropriate than their residence at maternal grand-
parental home. So also considering the advance age of
opponents and building contractorship occupation of
opponent No.1, it appears that they would not be in a
position to take proper care of their minor
grandchildren. On the other hand, applicant being well
educated young agriculturist, can definitely spare more
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time to look after the proper development of his minor
son and daughter. Record shows that even applicant is
holder of substantial agricultural land at village
Pimpalgaon Malvi. Therefore, it cannot be said that the
applicant would not be in financial position to maintain
his own children. Despite passage of number of years
from the date of death of late Sonali, the applicant has
not performed his second marriage, which indicates his
bonafide intention to devote for development of his own
children. The Trial Court has also considered all these
circumstances as well as educational qualification of
the applicant while holding that custody of the minor
children with the applicant would be more justifiable
than the custody with the opponents. Thus considering
the welfare and future psychological and sociological
development of minor children, I hold that the learned
Trial Court rightly allowed the application of the
applicant while directing the opponents to handover the
custody of Master Rudraksh and Miss Aachal to the
applicant.
11. In the result, I hold that this appeal being
devoid of merit deserves to be dismissed. Accordingly
First Appeal No.815 of 2018 is dismissed. In view of
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dismissal of First Appeal, Civil Application
No.2625/2018 does not survive and hence, stands disposed
of. The parties to bear their respective costs of the
appeal.
[SUNIL K. KOTWAL]
JUDGE
npj/fa815-2018
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