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Judgments of Supreme Court of India and High Courts

Sk. Wahid S/O. Sk Habib vs Ahetesham S/O. Sk Wahid (Minor) … on 24 August, 2018

Judgment

ao44.16 44

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR

APPEAL AGAINST ORDER NO.44 OF 2016

Sk. Wahid s/o Sk. Habib, Aged about 45
years, Occupation agriculturist and
business, R/o Dharmalpura, Chandur
Bazar, Taluka Chandur Bazar, District
Amravati. ….. Appellant.

:: VERSUS ::

1. Ahetesham s/o Sk. Wahid, Aged about
11 years.

2. Sk. Sakib s/o Sk. Wahid, Aged about
9 years.

Both are minor hence through their
custody holder (grant father) Syad
Mujjiafar Sy Emam and
Now Died- thr. R-3
Natural Guardian R-3 (Bashir Bee
Grandmother)

3. Bashir Bee w/o Syad Mujjiafar
(Grand Mother) All r/o Islampura,
Chandur Bazar, Taluka Chandur Bazar,
District Amravati. ….. Respondents.

Shri G.M. Kubde, Counsel for the Appellant.
Shri R.J. Shinde Counsel for Respondent No.3.

CORAM : V.M. DESHPANDE, J.

DATE : AUGUST 24, 2018.

…..2/-

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Judgment

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ORAL JUDGMENT

1. Heard learned counsel Shri G.M. Kubde for the appellant and

learned counsel Shri R.J. Shinde for respondent No.3.

2. By the present appeal, the appellant challenges judgment

and order dated 25.2.2016 passed by learned District Judge-3, Achalpur in

Misc. Civil Application No.39/2011.

3. By the impugned order, learned Judge of the Court below

rejected the application filed on behalf of the appellant for granting custody

of minors, respondent Nos.1 and 2, in his favour.

4. The appellant was married with Shaminabee and from their

wedlock respondent Nos.1 and 2 were born. The wife died unnaturally.

A charge was framed against the appellant in Sessions Trial No.74/2009

for offences punishable under Sections 302 and 498A of the Indian Penal

Code. On 10.8.2010, learned Additional Sessions Judge-2, Achalpur

acquitted the appellant along with others from the offences for which he

was charged.

5. Respondent Nos.1 and 2 were staying along with respondent

…..3/-

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No.3 who is maternal grandmother of respondent Nos.1 and 2.

6. Before learned Judge of the Court below in custody

proceedings it was pleaded by the appellant that he being the father, he is

legal guardian. He also submitted that he is financially sound since he

runs a hotel under the name and style as ‘Mamta Tea Stall” at Chandur

Bazar. The application was contested by respondent No.3. It was also

pointed out that she had already admitted respondent Nos.1 and 2 in the

school for taking education.

7. From the impugned judgment and order, it is clear that

learned Judge of the Court below had a meeting with both the minors in the

presence of learned counsel for both the parties in his chamber. In a very

homely atmosphere, he gathered wishes of the minors. Learned Judge of

the Court below specifically, in paragraph No.10 of the judgment and order,

found that both the minors were reluctant to go along with their father. In

my view, due weightage has to be given in respect of the said observations

of learned Judge of the Court below. It was also found that the minors are

already taking education in an Urdu School.

8. Merely because the appellant is having sound financial

…..4/-

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Judgment

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position, in my view, that cannot be a sole criterion for handing over of the

reluctant minors in favour of the father when the minors are not ready to

stay and co-habit with their father.

9. In view of the above, no exception can be taken to the

judgment and order passed by learned Judge of the Court below. The

appeal against order is rejected.

JUDGE

!! BRW !!

…../-

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