High Court · 2025
Legal Reasoning
Cri.Revn.134.2023-1-IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL REVISION APPLICATION NO. 134 OF 20231.Sainath S/o. Madhavrao Buchade (Husband),Age : 37 years, Occu. : Business,2.Madhav S/o. Dhondiram Buchade (Father-in-law), Age : 70 years, Occu. : Pensioner, 3.Godavari W/o. Madhav Buchade (Mother-in-law), Age : 67 years, Occu. : Household, All R/o. Plot No.302, 3rd Floor,Gokuldham Apartment, Ekvira Chowk,Gavade Mala Escon Temple, Savedi,Ahmednagar.Now all R/o. Plot No.33, Saikrupa Niwas, Vistarit Nathnagar, Opposit MGM College,Nanded, Dist. Nanded.… Applicants (Orig. Opponents)VersusShital W/o. Sainath Buchade, Age : 32 years, Occu. : Household, R/o. Nabhangan, Deepijoti Nagar, MIDC Road, Latur.… Respondent.…..Mr.Vishwajeet R. Jain, Advocate for Applicants.Mr. Mahesh S. Bhosale, Advocate for Respondent.…..CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 29 JANUARY 2025PRONOUNCED ON : 28 FEBRUARY 2025 JUDGMENT : 1.In instant revision, husband and in-laws of respondenthave set up following prayers :-
Legal Reasoning
Cri.Revn.134.2023-2- “A.This Criminal Revision Application kindly be allowed. B.Record and proceeding be called for.C.The judgment and order dated 09.02.2023 in Criminal Appeal(PWDVA) No. 14 of 2021 passed by learned Additional Sessions Judge-4,Latur may kindly be quashed and set aside.D.The judgment and order dated 11.11.2021 below Exh.10 in CriminalM.A. (DV) No. 87 of 2021 passed by learned 6th J.M.F.C. Latur maykindly be quashed and set aside and to dismiss/reject the applicationExh.10 of original applicant in M.A. (DV) No. 87 of 2021.E.Pending hearing and final disposal of this criminal revisionapplication the execution and operation of the judgment and order dated11.11.2021 and 09.02.2023 may kindly be stayed.F.Pending hearing and final disposal of this criminal revisionapplication the proceeding of Contempt No. 221 of 2022 and ExecutionApplication in M.A. (D.V.) No. 87 of 2021 filed by respondent before 5thJ.M.F.C. Court, Latur may kindly be stayed or kept abeyance. G.Any other suitable and equitable relief to which the 3 petitioners arefound entitled in the peculiar facts and circumstances of the case maykindly be granted.”2.Learned counsel for revisionist would submit thatrevisionist no.1 and respondent are husband and wife and they havea minor son. Due to differences and clashes, they are residingseparately. That, respondent resides with her parents, whereas, since Cri.Revn.134.2023-3-beginning minor resides with his father and grandparents. That,since beginning there is good emotional bonding and as such, childwhose interest and welfare is of paramount importance, is well takencare of by revisionist. That, respondent apart from entering intoadulterous life, abandoned the small child and went to her parentsand thereafter she set up proceedings under Domestic Violence Act,tendering application under section 21 of D.V. Act seeking temporarycustody of the minor.3.Learned counsel further pointed out that, aboveapplication was resisted tooth and nail by the revisionist on theground that child is already taking education while he is put up withthem and apart from his academic interest, his welfare is alsoalready secured. He should not be allowed to fall in the company of amother, who has engaged in adulterous life. That, in spite of casebeing made out for rejection of application for custody Exh.10,learned J.M.F.C. Latur granted interim custody to her. That, conductof respondent is prejudicial to the interest and well being andupbringing of the child and therefore, order dated 11.11.2021 wastaken exception by revisionist by filing Criminal Appeal (PWDVA)bearing No.14 of 2021, thereby questioning the above order.However, according to learned counsel, without appreciating thefacts, documentary material and circumstance as well as legal Cri.Revn.134.2023-4-position, and moreover, financial stability of revisionist to protect theinterest of the child, which is of paramount in interest, learnedAdditional Sessions Judge, Latur dismissed the appeal. Hence, therevision.4.Per contra, learned counsel for respondent wife alsosubmitted as well as placed on record written notes of argumentsrefuting all allegations and contentions raised in the revision, sheblamed husband being a suspicious character. It is pointed out that,she being biological mother, has every right to claim custody andmoreover law also in favours of grant of custody to mother whenchildren are below 7 years of age. Even according to her, husbandhad bad vices and it would have also adverse effect on the upbringingof the child. She too doubted fidelity of her husband.5.Heard extensively. Here, an order granting interimcustody of minor by trial court and it being further affirmed bylearned Additional Sessions Judge, is a subject matter of revision. Ongoing through the applications, its reply/say and the assertionsraised therein, in the trial court, it seems that both sides, who arehusband and wife, are making volley of allegations against each otherin spite of having a minor son. It also emerges that, as the marriageran into rough weather out of strained relations, they have already Cri.Revn.134.2023-5-parted ways. Applicant husband seems to be residing at Nanded,whereas, respondent wife, who is said to be put up with parents, isresiding at Latur. 6.Application Exh.10 seems to be at the instance ofrespondent wife in Criminal M.A. (D.V.) No. 87 of 2021 demandingcustody of a minor, the then 5 years old. This application seems to bedecided by the learned trial court, who appreciated the contentionsraised by both sides, heard them extensively and in the fitness of thethings, which appeared to the learned trial Judge on hearing themand on going through the papers, formed an opinion that minor is 5years old and thereby interim custody was granted to the mother. Itseems that, age of the minor is what prevailed over learned trialJudge, who finally ordered temporary custody by order dated11.11.2021 to mother by permitting visitation rights to the oppositeparty.7.Papers show that, aggrieved by the above order onExh.10, present revisionist took exception to above order dated11.11.2021 before learned Additional Sessions Judge by invokingsection 29 of D.V. Act and again both parties seem to have hotlycontested Criminal Appeal No. 14 of 2021. Again first appellate court,after hearing both the parties to their satisfaction and also Cri.Revn.134.2023-6-appreciated the documentary evidence as well as citations relied byeach of them, reached to a conclusion that learned trial court hasmerely granted interim custody by protecting husband’s visitationright, dismissed the appeal. 8.On going through the judgment and order of learned trialcourt, it is emerging that, there is detailed discussion in thereasoning commencing from paragraph no.12 onwards till paragraphno.17 entertaining and appreciating assertions raised by both theparties and also taking the legal precedents about consideration ofwelfare of a minor to be paramount, awarded custody of the minor,the then 5 years and some months old and granted temporarycustody. 9.Again on visiting judgment and order of first appellatecourt, it is emerging that, since paragraph no.7 onwards, casesadvanced by both sides as well as rulings relied by both sides aretaken into account and discussed, and finally conclusion has beendrawn that order passed by trial court is just, legal and proper.10.Even this revisional court has appreciated thecontentions raised by each of the parties and in the peculiar facts andcircumstance, in which parties are currently placed and when it is Cri.Revn.134.2023-7-apparent that though child is with respondent, husband has beeninvested with visitation rights and thereby balance has been tried tobe struck by protecting not only the interest of warring parties, butalso the minor. The situation in which both litigating parties havelanded themselves, the impugned order passed by trial court andaffirmed by first appellate court, is the viable order that couldemerge. This is just a temporary situation, which is taken intoaccount by both trial court as well as appellate court and in the eventof passage of time and change in circumstances, both sides haveequal opportunities to either reconcile or to knock the doors of thecourt, if the situation so demands. No case for interference being made out, revisionapplication is dismissed. (ABHAY S. WAGHWASE, J.) Tandale