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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.
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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
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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
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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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