High Court
Facts
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 1398 OF 2024WITH CIVIL APPLICATION NO. 1590 OF 2024WITH CIVIL APPLICATION NO. 1997 OF 2024 WITH CIVIL APPLICATION NO. 2357 OF 2024WITH CIVIL APPLICATION NO. 3398 OF 2024Satish Sadashiv KulkarniVERSUSAshwini Satish KulkarniMr. R. G. Joshi, Advocate for PetitionerMr. P. S. Shendurnikar, Advocate for RespondentCORAM: R. M. JOSHI, J.DATE: 18th February, 2025PER COURT :-1.Petitioner-husband is seeking reversal of the order passed bythe Family Court directing custody of the child aged below 2 years to behanded over to the respondent-mother and seeks custody of the child.2.Facts are not in dispute such as petitioner and respondentare legally weeded husband and wife. A male child is begotten from thesaid wedlock on 12.06.2023.3.It is the case of the petitioner that the respondent leftmatrimonial home. Proceedings came to be filed before the Family Courtbeing petition D-3/2024 at the instance of the respondent-mother underthe provisions of Guardians and Wards Act, 1890 (for short “the Act”).In the said proceedings, final relief is sought of the permanent custody of942-WP-1398-2024.odt1 of 9 the child. An application came to be moved for interim relief wherein histemporary custody is asked. Learned Family Court after hearing bothsides passed impugned order dated 30.01.2024 directing handing of thecustody to the mother on 02.02.2024. The father was permitted to meetchild on first and third Saturday of every month in the Children Complex,Family Court, Pune between 1 PM to 2 PM. Father was also directed todeposit cost of Rs. 5,000/- with District Legal Service Authority,Aurangabad for using inappropriate language in the reply.4.Learned counsel for petitioner submits that having regard tothe medical evidence on record, it is clear that the respondent is unableto take care of the child. To support his submission, he has placedreliance on the certificate issued by the medical practitioner who hasdiagnosed her to be the patient of depression post delivery. The medicalpapers of Civil Hospital are also referred in order to contend that there ispsychiatric illness to the respondent. Thus, it is his contention that onthe basis of medical evidence on record, Family Court ought not to haveorder passed granting custody of child to respondent. It is also arguedthat the Family Court has granted final relief at the interim stage which iswholly impermissible in law. To support his submission, he placedreliance on the judgment of Hon’ble Supreme Court in case of State ofU.P. Vs. Ram Sukhi Devi (2005) 9 Supreme Court Cases 733 and942-WP-1398-2024.odt2 of 9
Legal Reasoning
10.According to respondent, the petitioner herselfleft the matrimonial house, and according to thepetitioner, the respondent drove her out of house whenthe baby was only 2 months old. At this stage, it isdifficult to comment upon this. And this is not the stageto decide who was at fault. The important thing iswhether a child of barely 6-7 months old can be keptaway from the mother. The respondent has producedone certificate of the son issued by a Civil Surgeon,Aurangabad that the child is physically and mentally fitand his health is normal. However, the certificate cannot take away the right of the child to be in thecompany of the mother. Mother's milk is mostimportant for a child's physical and mentaldevelopment. Breastfeeding is an inalienable right of alactating mother protected under Article 21 of theConstitution of India. Similarly, it is the right of thesuckling infant for being breastfed too. It is assimilatedwith mother's right. It is necessary for the child'sprotection from certain illness and diseases.8.If these observations are considered in the backdrop of themedical certificate placed on record by both sides, it can be saidapparently that the respondent is not incapacitated in any manner totake care of the child. The certificate placed before this Court even bythe petitioner also does not indicate so. This Court (Coram :- Arun R.Pednekar, J) on 06.02.2024 interacted with the respondent and herfamily members. He recorded his prima facie satisfaction that the motherwould be of no harm to the child. It is also recorded that he has not seenany symptom of anxiety in the mother. Though, the Court has further942-WP-1398-2024.odt5 of 9 observed that the Court intends to seek evaluation of mother bycompetent board on the next day, no further order came to be passed inthis regard. Pertinently, this order is passed on 06.02.2024 and,therefore, respondent is examined by expert Doctor and the certificatedated 03.02.2024 relied upon by the respondent, which is filed alongwith the reply to Civil Application No. 1590/2024. There is no rejoinder inorder to challenge the expertise of the Doctor who has issued the saidcertificate. This Court, therefore, finds no reason not to accept theobservations recorded by this Court though prima facie, so also findingsrecorded by the Family Court. The petitioner-father of the child wasunable to substantiate before this Court that the respondent-mother isincapacitated from taking care of the child. Thus, it can be said thatpetitioner has failed to make out any case to seek interference in theorder impugned.9.There is no dispute about the fact that for last about 8months, child is with mother. Nothing absolutely is brought on record toindicate that child’s custody with the mother is not in his interest. It issought to be argued on behalf of the petitioner that the respondent isnot personally taking care of the child and that she has appointed themaid servant for the said purpose and she claims maintenance from thepetitioner on this ground. Even if it is accepted that a maid servant is942-WP-1398-2024.odt6 of 9 engaged by respondent, it is not uncommon for a maid servant to beengaged where there is small child in the house. In such circumstances,the said fact even if it is accepted to be true will not become a ground tocause interference in the impugned order.10.On the point of contention of petitioner that final relief beinggranted by the Family Court, it is necessary to take note of the prayerclause in main application. Prayer clause in the main application readsthus :-v½ vtZnkj ;kapk izLrqrpk vtZ eatwj d:u] uotkrckGkpk rkck@dLVMh dk;eLo:ih vtZnkjkl ns.;kr ;sowuR;kaps laiq.kZ ikydRo ns.;kpk vkns’k dj.;kr ;kok ovtZnkjkl ckGkP;k Hkfo”;krhy loZ fu.kZ; ?ks.;kpk gDd ovf/kdkj ns.;kr ;kok-Ck½vtZ nq:Lrhl ijokuxh n;koh-d½brj ;ksX; rs U;k;kps gqdwe Ogkosra-As against this, an interim application was filed with followingprayers :-v½ vtZnkj ;kapk baVfje vtZ eatwj dj.;kr ;kok-c½ uotkr ckGkph izd`rh [kjkc gksow ‘kdrs- R;keqGs ckGkP;kizd`rhpk fopkj d:u] ckGkpk rkck vkbZ Eg.ktspvtZnkj ;kauk nsowu tkcns.kkj ;kaps fo:/n Rojhr dkjokbZdj.;kps vkns’k n;kosr-d½ EkqG vtkZpk fudky ykxsi;Zar eqykpk rkck gkvtZnkj ;kapsdMs Bso.;kps vkns;k Ogkosr-942-WP-1398-2024.odt7 of 9 In the light of these prayers, when Family Court directs thecustody of child to be handed over to the respondent herein, the samecannot be treated as a permanent custody being handed over.Pertinently, there is no order of granting permanent custody of the childto the respondent herein. In such circumstances, this court findsabsolutely no reason of justification to cause any interference in theimpugned order. 11.As regards, direction issued to the petitioner to deposit costof Rs. 5,000/-. Learned Family Court judge has recorded cogent reasonsfor imposing such cost to relevant portion of the order reproduced itselfin paragraph 13 and 14 as under :-13.It is necessary to mention that, the reply/pleading of the respondent is much lengthy and atmany places unwarranted. Even the language used bythe respondent is derogatory to the womanhood. Therespondent has pleaded that (1) आपल्यामातृत्वालाया जन्मदात्रीनेचबळजबरीम्हणतशि(cid:27)वीदेण्यासारखाहाप्रकारआहे. (2) ज्या बाईलालेकरुसिसझरीनप्रक्रि’येद्वारेजन्मासघालतायेते, तितलाअंगावरचेदूध येण्यासाठीऔषधंदेण्याचीगरजभासावी, हीचवास्तवतेची(cid:27)ोकांतितकाआहे.(3) दोनमक्रिहन्याचेबाळसोडूनपुढीलपाचमक्रिहनेअट्ठासानेआपल्यामाहेरीजाणा- याआईलाबाळासाठीदूधयेतनाही. (4) ज्याआईनेममत्वाचाडिंडडोरा क्रिपटण्याशि(cid:27)वाय, कोट=कचेरीशि(cid:27)वायकाहीचकेलेनाही, तीलाआताबाळाच्या दुधाचीकाळजीवाटूनये. (5) त्यांनीयामा. न्यायालयातूनचनांदण्यासाठी आपल्यासासरीपरतावे. बाळतेथेचआहे. कायहंडाभरदूधपाजायचेअसेल, तेपाजावे.14.Use of such language is improper. Recently theHonourable Supreme Court has published a Handbook942-WP-1398-2024.odt8 of 9
Arguments
Bukharee Aezazalee Makhadumalee Vs. State of GujaratLAWS(GJH)-2013-2-22 .5.On the other hand, learned counsel for the respondentsupported the impugned order. It is his contention that there isabsolutely no evidence in order to hold that the respondent is unable totake care of the child. He drew attention of the Court to the MedicalCertificate which according to him does not indicate such incapacitationon her part. He placed reliance on the Medical Certificate filed along withCivil Application No 1590/2024 to indicate that she is capable of takingcare of herself and her baby. It is his submission that relief granted bythe Family Court is not final in nature though the custody is directed tobe handed over. It is his submission that the burden is on the father toshow that mother is unable to take care of the child below age of 5 yearsand in absence of any material to that effect, there is no reason to causeany interference in the impugned order. To support his submission heplaced reliance on the judgment of Hon’ble Supreme Court in case ofRoxann Sharma Vs. Arun Sharma (2015) 8 Supreme Court Cases318 , Pushpa Singh Vs. Inderjit Singh 1990 Supreme Court Cases(Cri) 609 and the order passed by this Court in case of Swapnil s/oDinesh Adhyapak and ors Vs. Mansi w/o Swapnil Adhyapak inCriminal Revision Application No. 60/2021.942-WP-1398-2024.odt3 of 9 6.There cannot be any dispute with regard to the propositionthat the interest of the child and his welfare is of paramount importance.The Court, therefore, will have to see as to whether the interest of thechild is taken into consideration by the Family Court while passing orderimpugned.7.The Hon’ble Supreme Court in case of Pushpa Singh (supra)has held that there is burden on the father to show that the mother isincapable of taking care of child below age of 5 years to deny custody toher. In this regard, learned Family Court in the order impugnedconsidering material placed before the Court has made following primafacie observations which are reproduced thus :-9.From the documents on record, it seems that thepetitioner is suffering from anxiety/depression. It isadvised that the baby shall be under supervised care ofthe family members. However, it does not mean thatthe baby is unsafe with his own mother. Anxiety/depression 4 is not a very serious issue. Feelingnervous now and then is not so much abnormal. It isnormal response to the stressful situation. No instanceis quoted by the respondent that the petitionercaused/tried to cause harm to the child and that thechild is not safe in her custody Admittedly thepetitioner is a well-educated lady. During the course ofarguments, she was present in Court. She has a 4-wheeler driving license and she drives a car owned byher brother in a city like Pune. All these things showthat though she is having some kind of anxiety issue,she is leading her life as a normal human being.942-WP-1398-2024.odt4 of 9
Decision
Combating Gender Stereotypes. It is mentioned in thesaid Handbook that Language is critical to the life oflaw. Words are the vehicle through which the values ofthe law are communicated. The words transmit theultimate intention of the lawmaker to the nation.However, the language a judge uses reflects not onlytheir interpretation of law, but their perception tosociety as well. The said advisory is to assist not only tothe judges, but also to the legal community inidentifying understanding and combating stereotypes.The use of inappropriate and derogatory phrases/wordsin legal pleadings undermines the dignity of individuals,based on their gender, and falls beyond the permissiblebounds of language expected in such pleadings. Assuch, for using such inappropriate language, someamount of costs needs to be imposed on therespondent. Considering this, I answer point no. 1accordingly, and in the result, I pass following order :-12.In the light of facts recorded by the learned Family CourtJudge, this Court finds that learned Judge of Family Court was lenient inin imposing cost of Rs. 5,000/- only. In absence of challenge to the saidportion of the order by respondent, this Court does not wish to enhancethe said cost. Suffice it to say that there would be absolutely no reasonor justification to cause interference in the impugned order. Hence,petition stands dismissed. Pending civil application, if any, standsdisposed of.(R. M. JOSHI, J.)bsj942-WP-1398-2024.odt9 of 9