Bombaybench High Court
Case Details
(1)903fa2121.23speakingTHIS ORDER IS CORRECTED AND UPLOADED IN VIEW OFTHE ORDER DATED 23-10-2024.IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD903 FIRST APPEAL NO. 2121 OF 2023WITH CA/6454/2023 WITH CA/5894/2024WITH CA/5895/20241.Shardul Shamprasad Dev,...AppellantsAge-40 years, Occu-Advocate,2.Meera Shamprasad Dev,Age-70 years, Occu-Housewife,3.Shamprasad Vishwanath Dev,Age-75 years, Occu-Advocate All are R/o. Vivekanand Nagar,Behind Shri Ram Mandir,Kopargaon, Tq. Kopargaon,VERSUS1.Manjiri Shardul Dev,...RespondentsAge-33 years, Occu-AdvocateR/o. Chincholi, Tq. Rahuri,Dist. Ahmednagar2.Pallavi Shailesh Kulkarni,’Age-43 years, Occu-Business,C/o. Vasanti Upadhye, 114,Umashankar Co.Op. Society,Near Dashbhuja Ganpati,First Floor, Flat NO.2Pune, Dist. Pune1 of 33 (2)903fa2121.23speaking3.Amol Manohar Achari,Age-32 yeas, Occu-Nil,R/o. Sanjivan Kamgar Vasahat,Sahajanand Nagar, Post Shingnapur,Tq. Kopargaon, Dist. Ahmednagar.Mr. Rajendra Deshmukh, Senior Advocate i/b Mr. Sanket S.Kulkarni, Advocate for the appellants Mrs. M. L. Sangit, h/f Mr. L. V. Sangit, Advocate for respondentNo.1Mr. Ajay T. Kanawade, Advocate for respondent No.2Mr. A. S. Gandhi, Advocate for respondent No.3CORAM:KISHORE C. SANT, J.RESERVED ON:16th JULY, 2024PRONOUNCED ON:16th OCTOBER, 2024JUDGMENT1.Since the matter is in respect of custody of the child,the matter is taken up for final disposal at the stage of admissionby consent of the parties.2.This court has gone through the record andproceedings.3.This appeal arises out of the judgment and order2 of 33 (3)903fa2121.23speakingpassed by the learned District Court, Kopargaon dated 19-05-2023 passed in Civil Misc. Application No.3/2020. AppellantNos. 1 to 3 are the original respondents. Respondent No.1 is theoriginal applicant. Respondent No.2 is the sister of appellantNo.1- Orig. Respondent No.3 and daughter of appellant Nos.2and 3. Respondent No.3 is the original respondent No.5 whowas working as driver with the appellants. 4.By way of application, respondent No.1-mothersought custody of the minor son Riyansh and for declarationthat she is guardian of the person of the minor andconsequential reliefs. The learned District Judge was pleased toallow the application by way of impugned judgment and orderdirecting to hand over the custody of the child to his motherdeclaring her as guardian of person of the minor. Furtherincidental directions were given for handing over all thedocuments in respect of minor. Respondent to makearrangement for studying in the school of the minor. The Driveris directed not to interfere with the person of the minor in any3 of 33
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(4)903fa2121.23speakingmanner. For the purpose of convenience parties are referred toas per their relations with the child. Relationship of the childwith the parties is as : Appellant No.1 is father of the childRiyansh. Respondent No.1 is the mother. Appellant Nos. 2 and 3are grand-parents. Respondent No.2 is Paternal Aunt.Respondent No.3 is a driver of family car.5.Facts giving rise to the proceeding, in short, are asunder:-6.The father and mother of the child are Advocates byprofession. The mother is having masters degree in Law. Grandfather is also a practicing Lawyer. All the family members arethus educated and enjoying good social status. There are twochildren namely Riyansh and Raghav born to a couple. Presentdispute is about custody of elder son Riyansh. So far as custodyof Raghav is concerned, it is with the mother, there is no disputeand there is no application filed by husband for custody of minorRaghav.4 of 33 (5)903fa2121.23speaking7.It is on record that since long relations betweenfather and mother are strained. In 2016, father and grandparents had taken away the child from the mother. She wasrequired to file an application under Section 97 of the Code ofCriminal Procedure. In the said proceeding she received custodyof minor. Thereafter there was compromise for sometimethereafter, she again went for cohabitation to her matrimonialhouse. During that period she conceived and delivered youngerson. It is the case that she was never treated well by herhusband and in-laws. Grand mother is stated to have harassedthe mother. Grand father, as per allegations, is having variousvices and is lecherous. He has extra-marital relations with otherwomen. Aunt is also staying with the family of the grandparent,s though married. It is alleged that she also instigates thegrand parents. So far as driver is concerned, it is alleged that heis a person against whom various criminal cases were filed andis employed only to keep watch on the mother. 5 of 33 (6)903fa2121.23speaking8.Because of ill-treatment and harassment mother ofchild also had lodged even police complaint as CrimeNo.368/2016 for the offences punishable under Sections 323,504, 506 of the Indian Penal Code. One more case was filedunder Sections 498-A.9.Further it is the case that since beginning because ofthe strained relations there were attempts to see that the childdoes not remain with the mother. On 12-12-2019, the motherwas driven out of the house with younger son Raghav. Sincethen the custody of the Riyansh is with the father and grandparents.10.The mother therefore, filed the proceeding on 21-01-2020. It is alleged in the application that father is not treatingthe child well. Grand father is a patient of cancer and wasrequired to be operated and is being treated for the said diseasefor quite sometime. Aunt though married, stays with herparents. As such there is no conducive atmosphere in the house.6 of 33 (7)903fa2121.23speakingIt is further stated that since the younger child is with themother, it is in the interest of the child to have his custody withthe mother.11.The matter proceeded further. For long time thehusband did not file written statement. He did not obey theinterim orders of the court in respect of the temporary custodyof the child or right of education and therefore, his right todefend was struck down. This order attained finality till theHon’ble Supreme Court. Thus, there is no written statement onrecord by the husband. Father-in-law though filed writtenstatement. He has adopted written statement of father.12.Though the proceeding is stated to be summaryproceeding, it took three and half years to decide theproceeding. There are more than 650 exhibits. There were tenwrit petitions filed in the High Court at various stageschallenging various orders. Out of those, nine were filed by thefather and only one was filed by the mother. There was7 of 33 (8)903fa2121.23speakingapplications filed praying for allowing the appellants to examinetwelve witnesses. However, said application was rejected. Thiscourt, thereafter, allowed to examine 4 witnesses out of the saidlist by giving it timeline. Thus, in said timeline, some of thewitness are examined. 13.Pending this appeael, two applications are filedbearing Nos.5894/2024 and 5895/2024 in June, 2024. Inapplication No. 5894/2024 payer is made to refer the matter formediation and counseling and to call for detailed report andrequesting this court to have interaction with the child. CivilApplication No.5895/2024 is filed praying that this court bepleased to interact with the child before passing any order. Allthese applications where prayer is made to give therepresentation to the child and to consider various guidelines inrespect of the child welfare. This court in view of civilapplications had directed the parties to have interaction witheach other. However the parties intimated to the court that nosettlement could be arrived at. This court also had interaction8 of 33 (9)903fa2121.23speakingwith the couple and then with the child on 15-07-2024.SUBMISSIONS BY THE APPELLANT:14.The matter is argued at length. First submission wason the point of jurisdiction. It is argued that the District Court,Kopargaon had no jurisdiction to decide the matter in view ofthe Family Courts Act. It is submitted that the child should havebeen given facilities of counsellor, mediator before the passingthe order. Since the application was filed in the District Courtchild is deprived of all these facilities. Other argument was thatthis court to look to the material on record in the form of CCTVfootage and DVD on record. It is argued that during theproceeding right of defense of father was struck down. The courtcommitted error in not considering even written statement ofthe grandfather as he had adopted the written statement of thefather. Many grounds thus taken in the written statement by thegrandfather were not considered and thus all the parties aredeprived of giving the evidence on all the points. The learnedtrial court has not considered the defense in view of the strikingof defense which resulted in miscarriage of justice. The report of9 of 33 (10)903fa2121.23speakingcounsellor was not shown to the parties and therefore partiesare deprived of proper opportunity to address the court on thesaid report. Mother had lodged various proceedings just toharass the father and in-laws. Interaction report was kept insealed cover. The court has not considered the academic andother progress of the child including extra curricular activities.The court did not have sufficient interaction with the child. Thecourt has unnecessarily relied upon the diary written by thegrandmother in which various things are written against thegrandfather . Evidence of many witnesses is not considered. Noproper representation was given to the child. Though the fatherhad produced on record DVR of CCTV footage the same was notconsidered. Though on some occasions the mother failed toattend the court for visitation of child still that is not considered.No proper child plan was submitted by the mother. It wasnecessary to seek assistance of child expert to assessunderstanding and mental ability of the child. Guidelinesprepared for family courts by this court are not followed. Thereis no panel of child independent lawyers and thus the child is10 of 33
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(11)903fa2121.23speakingdeprived of opportunity to get representation to him by suchlawyers. Issues were not properly framed. No opportunity wasgiven to the husband to cross-examine the witnesses. The courtdid not exhibit DVR and hard disc produced before it with Exhs.432 & 384. The court acted in unfair manner by not deciding theapplication in timely manner. There is no sufficient evidence onrecord to show that welfare of the child would be taken carebetter manner by the mother still her application is allowed.15.The learned advocate for the appellant relied uponfollowing judgments :a]Nil Ratan Kundu and Anr Vs Abhijit Kundu (2008) 11 SCR 111b]Rosy Jocob Vs Jacob A Chakramakl 1973 STPL 1188 SCc]Lahari Sakhamuri Vs Sobhan Kodali (2019)5 SCR 240d]Mausami Moitra Ganguli Vs Jayant Ganguli 2008 STPL 12182 SCe]Nanda Dulal Pradhan and Anr Vs Dibakar Pradhan and Anr (2022) 7 SCR 483f]Hemant Gupta Vas Ramsubramanian 2000 LivLaw (SC) 533g]Smt. Mamoni Pal (Biswas) Vs Sri Samir Pal FMAT 107 of 2022 with CAN 1 of 2022 (Calcutta HC)h]Selvaraj Vs Revathi 2023 INSC 1054 (SC)i]DSG Vs AKG (2019) 15 SCR 144j]Mamta Alias Anju Vs Ashok Jagannath Bharuka (2005) 12 SCC 45211 of 33 (12)903fa2121.23speakingk]Archana W/o. Satyajit Jadhav Vs Satyajiut S/o. SuryabhanJadhav 2022 (4) ALL MR 349SUBMISSIONS BY RESPONDENT NO.116.As against this, learned advocate for the respondentvehemently argued that the appellants have not brought basicfacts to the notice of this court. So far as jurisdiction isconcerned, he submits that there is no notification issued underSection 3 of the Family Courts Act extending jurisdiction toKopargaon. He submits that now taking ground of jurisdiction isexactly opposite to the stand taken by the appellant before theDistrict Court in transfer application filed by the mother bearingNo.85/2020 for transfer of the matter from Kopargaon toAhmednagar Court in which the father and grandfatherspecifically opposed the application stating that Kopargaon courtalone has jurisdiction. That application was rejected with costsof Rs.3000/-. Thus, argument so far as jurisdiction is concerned,he submits that the same cannot be considered in view ofabsence of notification and secondly, that the father himself hadstated that it is only Kopargaon Court which has jurisdiction.12 of 33 (13)903fa2121.23speakingThe jurisdiction is with the District Judge in view of section 9 ofthe Act. So far as interaction with the child is concerned, hesubmits that the court had interacted with the child and it isonly thereafter, the court has passed an order. So far as the rightof defense is concerned, the defense was struck down because ofdisobedience by the father of various orders passed by the courtand for his objectionable behavior in the Court. There are eleveninstances recorded of such disobedience and it is only thereafteran order was passed on Exh.236, 242, 246. The applicationfiled for restoration of defense was also rejected and thatrejection order was maintained till the Hon’ble Supreme Court.Even the application raising the ground of jurisdiction was filedat Exh.575 after two years. This shows that there are lack ofbonafides on the part of the father. The defense is tried to betaken through father-in-law and driver who are in a way notconnected directly with the custody of the child. The applicationwas also resisted by the driver who is totally unconnected withthe issue. When mother was staying at the matrimonial house allcare was taken only by her. The medical expenses of child etc.13 of 33 (14)903fa2121.23speakingare also born by the mother. There is evidence in the form ofwhatsapp messages on record showing father had sent themessages to the brother of mother demanding school fee for theminor. In spite of other opportunities, the husband could notavail this opportunity in the court, now he can not makecomplaint about fair trial and therefore, grounds of fair trial iswithout substance.17.It is only because of filing of various applications,and after the order was passed challenging the order in thiscourt in writ petition proceeding was delayed. He submits thatwish of the child is not the sole criteria while deciding thematter of the custody of child. He submits that mediation wasdone on several occasions. There is also an order referring theparties to Sukun Committee. Settlement talks were held evenbefore the Sukun Committee. In writ petition No.14587/2002between the parties mediation was done even in this court. Thecourt has discussed about the child interaction in the judgment.He lastly submits that though father and grandfather have filed14 of 33 (15)903fa2121.23speakingon record voluminous record containing eight volumesdeliberately order passed below Exh.236, 242 and 246 are notincorporated. In common order on these applications the courthas clearly observed the conduct of the parties in its order dated21-09-2022, in which husband was required to be strictlydirected to comply with the interim orders below Exh.29 and 49.He has deliberately not produced an order passed belowExh.258 that was filed for restoration of defense. He thus,submits that the appellants have not come with clean hands tothis court. He prays for dismissal of the appeal.18.The learned advocate for the respondent No.1 hasrelied upon the judgment reported in AIR 2009 SC 557 in thecase of Gaurav Nagpal Vs Sumedha Nagpal.19.No arguments are advanced on behalf of respondentNos. 2 and 3.DISCUSSION 20.So far as the judgment in the case of Nil Ratan15 of 33 (16)903fa2121.23speakingKundu and Anr (supra) is concerned, it was a case wherein thefather of the child was seeking the custody of minor who waswith the grand parent i.e. parents of mother who died. In thatcase the court held that custody always should be with fatherbeing natural guardian. In that case father was facing criminaltrial for section 498A and 304 of the IPC facts are thus notapplicable to the present case.21.In the case of Rosy Jacob (supra) the court held thatmain consideration in the matter of custody is welfare of thechild and not right of the parents. The court held that hypertechnicalities should not be allowed to deprive the guardian ofnecessary assistance from the court in effectively discharging hisduties and obligations towards his ward. In the case of LahariSakhamuri (Supra) the Hon’ble Apex Court has considered theexpression ‘best interest of child’ which is always considered tobe of paramount consideration. Para 49 reads as follows:49. The crucial factors which have to be kept in mind by thecourts for gauging the welfare of the children equally for theparent’s can be inter alia, delineated, such as (1) maturity16 of 33 (17)903fa2121.23speakingand judgmental; (2) mental stability; (3) ability to provideaccess to schools; (4) moral character; (5) ability to providecontinuing involvement in the community; (6) financialsufficency and last but not the least the factors involvingrelationship with the child, as opposed to characteristics ofthe parent as in individual.In para No.50 it is held that child has a right to be takenseriously and to be treated with tenderness and respect. 22.In the case of Mausami Moitra Ganguli (supra) inthat case the child was living with the father when mother lefthome leaving him at the age of 3 years. When court interactedwith the child he showed reluctance to go with mother. Fatherhad good financial resources and time for child. Consideringthat stability and security of the child in that case custody wasnot disturbed. There court considered dislocation of the child atthat stage where he had grown up in sufficiently goodsurroundings, holding that it would not only impede hisschooling, but may also cause emotional strain and depression.In the present case, it is not the case that the mother is not in a17 of 33 (18)903fa2121.23speakingposition to take care of the child & distance between house isnot more than 25 km and thus there is no case that shifting ofchild would cause impediment in his education or over allprogress.23.In the case of Nanda Dulal Pradhan (supra) andSmt. Momani Pal (Biswas) (supra) the conduct of the wifebefore the learned court held to be far from being satisfactoryand judgment was passed. In case of Selvaraj (Supra) in ParaNo. 7 the court refused to give the custody to the mother. It wasobserved that child not only refused to go with the mother, butrefused even to talk with her. In this case, there is no case thatthe child is not even ready to come with the mother. On thecontrary when he visits he told that she behaved well. In thecase of DSG (supra) on that this court finds that this judgment isnot applicable. So far as Mamta @ Anju (supra) the courtconsidered that in the matter of the custody the court shouldtake into count wishes of the children concerned and assess thepsychological impact, if any, on the change in custody after18 of 33 (19)903fa2121.23speakingobtaining the opinion of a child psychiatrist or a child welfareworker. In this case, distance between house of husband andwife is not mentioned. In the present case there is no likely to bechange of atmosphere drastically. In the judgment of ArchanaJadhav (supra) the court had refused to give custody to themother. So far as the judgment in the case of Anjali Kappor VsRajiv Baijal the Hon’ble Apex Court in the facts of that case heldthat ordinarily under the Act, natural guardian of the child havethe right to the custody of the child.CONSIDERATION OF JUDGMENT RELIED UPON BY THELEARNED ADVOCATE FOR THE RESPONDENT NO.124.The Hon’ble Apex court in the case of Gaurav Nagpal(supra) observed that all the negative facts have been fed intothe the child’s mind against the respondents. It was observedthat if sufficient time is given child would overcome any tutoredprejudice. The court in the said case observed the conduct of theappellant which was noted by the local Commissioner of Policein the report wherein it is revealed that the child could meet the19 of 33 (20)903fa2121.23speakingmother only with the help of duty Magistrate. On recording allthe material facts the court held that the moral and ethicalwelfare of the child must also weigh with the court as well as itis physical well being. It is held that provisions of specialstatutes will not stand in the way of the court exercising hisparens patriae jurisdiction arising in such cases. In that casefather of the child had flouted many orders and managed tokeep the custody of the child. In that view it was held that suchperson cannot be a beneficiary of his own wrongs. So far asexpenses is concerned it is held that father can be asked to payeducation expenses of the child in addition to the maintenance.The court was taken care of the visitation of the father in thesaid judgment. This court finds that this judgment is squarelyapplicable to the present case. Considering the orders passed bythe learned trial court in common order below Exh.236, 242,246 and further orders below Exh.258.25.The parameters of consideration are now well settledand that is welfare of the child. Thus now in this case court need20 of 33 (21)903fa2121.23speakingto see as to whose custody can be said to be proper custody. Thiscourt has gone through the record and also interacted with thechild on 15-07-2024. So far as interaction is concerned, it isobvious that child is in the custody of the father since December,2019. Very naturally child expressed a desire to stay with thefather. During the interaction this court asked him questions toassess the ability to answer the questions. The child is found tobe very brilliant and involved in various activities in the school.Asking about his mother, he shown disinclination to go with themother. What surprised this court is the manner in which heanswered the questions and words used by him towards hismother, it is clear that such expressions cannot come from childof nine years of age. He mentioned that his mother failed to takeproper care of the child. She does not act as responsible mother.Mother avoids to do work in the house. This court asked as towhether he can tell any single good thing about his mother.There is not a single good quality in the mother, is his reply. Allthese clearly show that he is tutored. So far as the mother isconcerned, he further told that mother ill-treated him. This is on21 of 33 (22)903fa2121.23speakingthe background that when mother left, he was hardly of fiveyears of age. On asking about Raghav his younger brother, hetold that he loves him.26.Child does not know his own welfare. The minorsare prone to tutorship. By now it is well settled that whether anyparents have any criminal antecedents, whether there aredispute in the family to shoulder the responsibility of the child.Whether the child would get the proper atmosphere necessary togrow-up. Whether the child would get love and affection fromthe members of the family and whether he would get properopportunity to take education and pursue better carrier.27.Further this court noticed that it is the case of thefather that handing over the custody is not in the interest of thechild as mother is not in a position to take care of the child andat the same time, he has not taken any pains to seek custody ofthe younger son. If at all he was concerned about welfare of thechild, he would have certainly asked for custody of other child.22 of 33 (23)903fa2121.23speakingWhile considering the welfare of the child he needs care, loveand affection of mother & father, as well company of sibling forhis emotional development. On this aspect also this court findsthat it is in the interest of child to have company of his youngersibling.28.So far as mediation is concerned, the mediation wasdone during the proceeding before the learned Civil JudgeSenior Division, Kopargaon. Looking to the various orders andurgencies, the trial court even took up the matter even invacation. All things shows that an order passed on 19-05-2023,submission of not giving opportunities is against the record. Thesubmission that wife did not avail the visitation right is alsoagainst record. In the order passed by the court, it is specificallyobserved that whenever there was a visit of child to his mother,father did not allow her to meet the child with peace. He alwaysaccompanied the child and did not let him go with the mothereven for a minute. In one of the orders the court observed thatwhen mother had taken the child in the court premises, he23 of 33 (24)903fa2121.23speakingdeputed one photographer with a camera who was continuouslyshooting the mother and the child. Thus, this court is persuadedto believe that the husband even for a minute is not allowing thechild to see mother freely. About this behavior the learned trialcourt has recorded observations. However, no submissions aremade on such observation by the appellant. 29.In a writ petition filed challenging the order ofstriking out of the defense a rejection of an application forrestoration of the striking out of the defense, the said writpetition was dismissed. As submitted said order was confirmedeven in the Supreme Court. It is still argued that the father didnot get proper opportunity. Though other grounds are raisedthat the complaints filed by the mother were frivolous, this courtdoes not find it material to consider it while considering thisappeal. Though there are various other allegations made by theparties against each other, this court has to only see welfare ofthe child.24 of 33 (25)903fa2121.23speaking30.So far as the submission about not give properrepresentation to the child is concerned, on asking what exactassistance be given. It is stated that some independent lawyersshould have been appointed to represent the child by the court.This submissions was made on the basis of some guidelinesprepared. This court finds that no prejudice is pointed out by theappellants that caused to any of the parties thereby. 31.In the matter of custody wish of the child is only oneof the considerations. Here decision of handing over the custodyappears to be hard decision however, it cannot be avoided onthat count as held by the Hon’ble Apex court. Further conduct ofthe appellants is pointed out that though a caveat was filedagainst the impugned judgment still ex-parte interim order wasobtained by suppressing the fact of filing of the caveat. It is alsoclear that father has not obeyed the order directing the visitationright. This is more apparent looking to the fact that he happensto be a practicing lawyer. In spite of participating in theproceeding and in spite of justifying jurisdiction with the25 of 33 (26)903fa2121.23speakingKopargaon Court, he has still taken ground in this appeal ofjurisdiction. This also needs to be taken into seriouslyconsideration.32.Now coming to the question of welfare of the child,it is already noted that both the parents of the child are welleducated and are practicing advocates. Though it is the case ofthe husband that he is having a bungalow at Kopargaon spreadon a plot of 5000 sq. fts, Kopargaon taluka place wherepresently the child is taking education in this school. However,that itself is not ground. Financial position is not only groundwhile considering the welfare of the child. In the present casemother is also having some good life. She stays with her parent.There is CBSC school which is in the radiation of 5 km of herhouse where the child can be admitted. Younger son is also withthe mother and there is no allegations that he is ill-treated or hisproper care is not taken. Giving custody to mother would not bein any case against interest of welfare of the child. Both theparents of the father are disabled because of various ailments.26 of 33 (27)903fa2121.23speakingGrand father is suffering from permanent disease of cancer andwas required to be operated and treated for long time. Grandmother is also suffer from various ailments.33.Considering all above facts and judgments this courtsfinds that the submissions made on behalf of the appellant so faras jurisdiction is concerned have already been dealt with. Thesubmission does not merit any consideration. From the record itis clear that the appellant though was given many chances, didnot produce his witnesses for examination. It is only thereafter,the order was passed, which was challenged before this court. Inwrit petition this court allowed the prayers of the appellant onlyto the certain extent and directed to examine 4 witnesses fromthe said list within stipulated period. All the witnesses were notexamined within stipulated period. The appellant now cannotsay that the appellant could not get proper opportunity to leadthe evidence.34.After the argument is over, the father-appellant has27 of 33 (28)903fa2121.23speakinggiven an affidavit to this court stating that he will take care ofthe child and he should be given an opportunity. This needs tobe considered in the background of his earlier conduct. Thelearned trial court has clearly observed that on more than oneoccasions said appellant already had given the undertaking tothe court. This court also had an occasion to see the conduct ofthe appellant. This court in the proceeding observed that theappellant does not act as per the undertaking and his tendencyto flout the undertaking. Giving such undertaking again mayonly be an eye wash. The previous conduct of the appellant doesnot inspire confidence. It clearly appears to be an attempt tofurther prolong the litigation. This court thus is not in a positionto persuade itself to believe on such an undertaking once again.35.So far as interaction with the child is concerned, thiscourt interacted with the child. This court has seen DVDcontaining some photos and videos of the child, where he is seenperforming in the school activities. Photographs show that hehas received many certificates and awards at the school level in28 of 33 (29)903fa2121.23speakingvarious competitions. In some of the videos he is seen chantingMantras, Strotras and shlokas. It is already observed that child isbrilliant child and there is no doubt about. It needs to be seenthat for first 1 to 5 years the child was in the company of themother which are yeras of formation of various abilities,learning skills etc.36.Coming to the aspect of the welfare of the child, thiscourt finds that the mother is also equally settled in the life ifnot more than the husband. She is also having source of income.She resides with her parents. She can devote her time to thechild. The younger child is staying with the mother that wouldbe again to the advantage of the child. So far as taking care ofthe education etc is concerned, it has already come on recordthat father of the child had demanded the amount for school feeetc by sending messages to the brother of the mother. Underthese circumstances this court hardly believes that father is theperson who is taking care of education. It is seen that husband ismaking desperate attempts to keep custody of the child with29 of 33 (30)903fa2121.23speakinghim. About behavior observed by the learned trial court nocomments are offered or submissions are made by the appellant.The observations of the court shows that he did not allow thechild to meet his mother freely. On some occasions he hascreated scene in the court as observed by the trial court. 37.It is rightly pointed by the learned advocate for therespondents that though the appellant has prepared paper bookand compilation in 12 volumes. He has not annexed two orderswhich are passed by the learned District Judge observing hisconduct before the learned trial court. 38.It is observed by the learned trial court that thematter was prolonged unnecessarily. Right of defense of fatherwas struck of. Though there is written statements of grandfatheron record, it needs to be noted that the custody of the child ismatter between the mother and the father and it is not for otherrelatives.30 of 33 (31)903fa2121.23speaking39.While considering the appeal this court has alsoconsidered the applications. The pending applications are thusrequired to be disposed off in view of the disposal of the appeal.40.Considering overall material and record this courtfinds that it is in the interest of child to hand over his custody tothe mother. Arrangement can be made to see that child wouldget opportunity to see his father as well. Hence, the followingorder:ORDERA]The appeal stands dismissed with cost of Rs.1lakh. B]The custody of the child be handed over to themother after end of his first session of the schoolbefore Diwali, 2024. C]In Diwali vacation the child may stay with thefather for one week, after Diwali. 31 of 33
Decision
(32)903fa2121.23speakingD]Father would be entitled to custody of the childin every Diwali, Christmas and Summer vacation toan extent of 50% of such vacation. E]Presently the child is taking education atKopargaon. So the mother would make anarrangement to reach the child to the school andtake back. After end of academic year 2024-2025 thechild can be admitted to another school near thehouse of mother. F]Every alternate Saturday and Sunday the childwill stay with the father. The child would go tofather’s home after school is over on alternateSaturday and on Sunday evening the father willhandover the child to the mother at her residence.G]With this, appeal stands disposed off. 32 of 33 (33)903fa2121.23speakingH]Pending applications stand disposed off. [KISHORE C. SANT, J.]LATER ON:1.At this stage the learned advocate for the appellantsprays for continuation of interim relief. The said request isheavily opposed by the learned advocate for the respondents.2.This court has found that since there is interim relief,the same be continued for six weeks from today with a conditionthat in the Diwali Vacation the child would stay with the mother.3.The cost to be deposited or be paid to the wife as sheis taking the care of the child within two weeks from today.[KISHORE C. SANT, J.]VishalK/903fa2121.23speaking33 of 33