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2012 DIGILAW 1344 (BOM)

Deepak Satyanarayan Sharma v. Kanchan

2012-07-23

A.B.CHAUDHARI, VASANTI A.NAIK

body2012
Judgment : (Per SMT. VASANTI A. NAIK, J) 1] Admit. The appeal is heard finally with the consent of the learned counsel for the parties. 2] By this appeal, the appellant challenges the judgment of the Family Court No.4, Nagpur dated 11th April, 2011 dismissing the petition filed by the appellant under Section 25 of the Guardian and Wards Act, 1890 seeking custody of his two minor sons from the respondent. 3] Few facts giving rise to the appeal are stated thus:- The marriage of the appellant and the respondent was solemnized on 9th May, 2004 at Mangwadi, Tahsil Risod, District Washim, as per Hindu rites and customs. The parties stayed together till 31st August,2009. It is the case of the appellant that the respondent had started quarrelling with the appellant just after 15 days from the date of marriage. It is pleaded that the respondent and her parents went to Imamwada Police Station and lodged a false report against the appellant and his family members. The police had called the appellant along with his two sons to the police station. The respondent insisted for custody of both her sons. Though the appellant refused to give custody, on being threatened by the police, the appellant did not have any option but to handover both his minor sons to the respondent. 4] It is pleaded by the appellant that his elder son Alok is about five years of age and was taking education in the Nursary Classes in a convent school near Medical Square, Nagpur. It is pleaded by the appellant that the appellant was required to spend Rs.2000/-towards admission fees of Alok, his elder son, and Rs. 2400/-for the tuition fees. According to the appellant, though the books and uniform of his son Alok were purchased, the respondent carried Alok and the other son Mohit, who was just about 2½ years of age and suffering from paralysis of his left leg to Mangwadi, which is a remote village. According to the appellant, the future of both his children was spoiled as they were removed from the advanced city like Nagpur to a remote and interior village like Mangwadi. It is stated in the petition that Mohit was suffering from paralysis of his left leg and was under medical treatment in the Government Medical College, Nagpur for more than six months. It is stated in the petition that Mohit was suffering from paralysis of his left leg and was under medical treatment in the Government Medical College, Nagpur for more than six months. It was also pleaded that the appellant was residing with his father who owns 12 acres of land. The appellant was also serving in a Service Centre for the repairs of two wheelers and had sufficient income to provide good and proper education to both his children and medical treatment to his younger son Mohit. It was pleaded that the respondent had no independent source of income and hence both children were likely to suffer, if they remained in the custody of mother at Mangwadi. 5] The appellant tendered his evidence on affidavit. The appellant was not cross-examined as the respondent and her counsel were absent. The respondent had not filed the written statement. The Family Court, however, by the judgment dated 11th April 2011 dismissed the petition filed by the appellant on the ground that the appellant had not stated as to who would look after the children when he would be out for work and as to who would care for them in his absence. The judgment dated 11th April 2011 is challenged in the present appeal. 6] Shri Gulhane, the learned counsel for the appellant, submitted that the Family Court was not justified in dismissing the petition filed by the appellant for the custody of his children. It is submitted that the appellant resides in the advanced city of Nagpur whereas the respondent stayed at Mangwadi which is a remote and interior village in Taluka Risod. It is canvassed that the appellant has sufficient income and he would be in a position to give better educational facilities to both his children in the city like Nagpur and his younger son Mohit would also be benefited, if the appellant is granted his custody as the younger son suffers from paralysis of one of his legs and would receive good medical treatment from the Government Medical College where he was taking treatment for more than six months. It is submitted that the appellant helps his father in cultivating agricultural land and also serves in a service centre, with the result, the appellant has sufficient income to educate both his children. It is submitted that the appellant helps his father in cultivating agricultural land and also serves in a service centre, with the result, the appellant has sufficient income to educate both his children. According to the counsel for the appellant, the Family Court was not justified in holding that the appellant had not stated as to who would look after his children when he was out for work as he had clearly stated in his petition as well as in his evidence that he resided at Nagpur along with his father, younger sister and two daughters of his elder sister who could ably look after both his children. The counsel for the appellant submitted that the Family Court lost sight of the fact that a father can also take care of his children and have love and affection for them. 7] None appears for the respondent in spite of service to the respondent on a couple of occasions. 8] On hearing the counsel for the appellant, it appears that the following points arise for determination in this First Appeal:- Points. (i) Whether the appellant would be entitled to the custody of his children and/or whether the Family Court had rightly dismissed his petition? (ii)What order? 9] On a perusal of the original record and proceedings, it appears that the evidence of the appellant in regard to his claim for custody of his children remained unchallenged. The appellant had filed an affidavit in support of his claim. The respondent had not filed a written statement or reply to the petition. The respondent also failed to cross-examine the appellant. The appellant had clearly stated in his evidence that he was residing at Nagpur along with his father, younger sister and two daughters of his elder sister. The Family Court, however, erroneously held that if the custody is granted to the appellant, there would be nobody to look after the children in the house. It is apparent from the record that the custody of both children was handed over to the mother in the police station on 31st August 2009. It further appears that the elder son of the appellant by name Alok was studying in a convent near Medical College and the appellant had spent considerable amount towards his admission fees, his uniform and for the purchase of books. It further appears that the elder son of the appellant by name Alok was studying in a convent near Medical College and the appellant had spent considerable amount towards his admission fees, his uniform and for the purchase of books. The Family Court lost sight of the fact that the educational facilities at Nagpur would be better than the educational facility at Mangwadi. The Family court also lost sight of the fact that the appellant was earning enough to provide food, shelter and clothing for his children. The evidence of the appellant on affidavit was not considered by the Family Court as the Family Court erroneously held that the appellant had not stated, who would take care of the children while he was out for duty. It was clearly stated by the appellant in his affidavit that there were several persons in his family to take care of his sons. The Family court observed in the judgment that the mother would take more care and have more love and affection for the children. This finding is, however, not supported by any evidence whatsoever. The respondent has neither filed a reply to the petition nor has tendered any evidence to show that it would not be in the interest of the minors to grant their custody to their father. 10] It would be necessary to consider that the parties have two sons. The elder son is about six years of age and is hale and hearty. The younger son Mohit is about 3½ years of age and one of his legs has been paralysed. In the facts and circumstances of the case, it would not be in the interest of justice to grant custody of both the minor children to the father as the mother and father should equally have the company of their children. Since there are two sons born to the parties, in the interest of justice, it would be necessary to grant the custody of the elder son, Alok to the appellant and permit the respondent to have the custody of the younger son Mohit. It would be necessary to give the elder son in the custody of the appellant as the elder son can be looked after by the other members of the family when the appellant is at work. It would be necessary to give the elder son in the custody of the appellant as the elder son can be looked after by the other members of the family when the appellant is at work. The elder son could be better educated in the progressive city like Nagpur as he is not suffering from any ailment like the younger son Mohit. Since one of the legs of Mohit is paralysed, he would throughout require the attention of one of his parents. It would be better if the custody of the younger son Mohit is retained by the mother so that she can look after the son in a better way and also educate him in a village since he suffers from paralysis. That is so, because Mohit may not be in a position to cope up with the other normal students studying in the city like Nagpur. We find that the Judge of the Family Court was not justified in dismissing the petition and holding that the appellant was not entitled to custody of both his sons. In the facts and circumstances of the case, at least the custody of one of the sons was liable to be granted in favour of the appellant. 11] Hence, for the reasons aforesaid, the appeal is partly allowed. The judgment dated 11th April, 2011 is modified. The petition filed by the appellant for custody of the children is partly allowed. The appellant would be entitled to the custody of his elder son Alok and the respondent is directed to handover the custody of Alok to the appellant. The petition filed by the appellant for grant of custody of Mohit however is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.