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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

okMksns

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