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Judgments of Supreme Court of India and High Courts

Raju Uttam Trimbake And Anr vs Bhausaheb Bhimaji Shinde on 24 April, 2019

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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