The High Court dismissed the first appeal challenging the District Judge's order awarding custody of a minor girl to her natural father. The Court upheld the order, noting the father's fitness and the appellant's potential ulterior motives.
Execution of the custody order in favor of the respondent was suspended for eight weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
FIRST APPEAL NO. 90 OF 2015 WITH CA/306/2015 IN FA/90/2015
BHALCHANDRA DASHRATH SARWADE VERSUS
BHIMA LAHU SHITOLE
Advocate for Appellants : Mr. S.J. Salunke Advocate for Respondent : Mr. N.K. Chaudhari
CORAM : V. K. JADHAV, J. DATED : 5th APRIL, 2017
PER COURT :-
a) The present respondent/original applicant is the natural father
of minor child Deepali. He had filed an application bearing Misc. civil application No. 374 of 2011 seeking custody of his minor daughter from the appellant-grand father. The mother of minor Deepali had
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committed suicide at her matrimonial home and on the basis of the complaint filed by the appellant herein, crime No. 60 of 2011 came to be registered against the respondent herein for the offences punishable under Sections 498-A, 306, 323 r.w. 34 of I.P.C. However, the respondent herein came to be acquitted by the court in the said crime. However, during the period, when the respondent/ father was behind the bars, minor Deepali remained with the appellant. It has been alleged that the present appellant has taken forcible custody of minor Deepali from respondent-father.
b) The appellant has strongly resisted the said application by filing written statement at Exh.13. It has been contended that the marriage of his daughter with the respondent/original applicant had taken place in the year 2009. His daughter was treated well for few days and thereafter subjected to cruelty on account of non fulfillment of demand of Rs.1,00,000/- for construction of house. The appellant could not fulfill the said demand. Even his daughter deceased Savita was subjected to cruelty on account of non fulfillment of said demand and on 11.9.2011, deceased Savita consumed poison in her matrimonial home and died on the same day. Since then the female child remained in the custody of appellant. The appellant is looking after minor Deepali with love and affection and he is also giving good treatment as well as education to her.
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c) The respondent/father has adduced his oral and documentary evidence in support of his contentions and the appellant/original respondent has also examined himself. The respondent/father has also produced copy of the judgment of acquittal passed by the criminal court.
d) The learned District Judge-2, Beed, by its impugned judgment and order dated 30.10.2014 allowed the application and thereby directed the appellant to hand over the custody of minor Deepali to the respondent. Hence, this appeal.
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time of deciding application by the learned District Judge, the respondent/father was not re-married. Thus, the learned District Judge has given weightage to the same. However, at present, admittedly, the respondent/father got re-married and he has wife with two children. The step mother would not take care of minor Deepali. The respondent/father would not be able to look after the child continuously and the child would be remained in the custody and under supervision of her step mother.
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the respondent/father is sound and he has got near about 4 hectares of land. The appellant is not behind the welfare of the minor child
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Deepali. The appellant had instituted civil suit claiming share in the property of the respondent/father in the name of minor Deepali. The respondent/father would take care of his child in future and the learned District Judge has rightly considered the same and accordingly allowed the application. No interference is required.
the appellant has instituted a suit in the name of minor Deepali, claiming share in the property of respondent. In the backdrop of
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financial condition of the appellant, the action of institution of suit in the name of minor Deepali indicates some different intention. Learned District Judge has rightly given weightage to the said aspect.
relied upon by learned counsel for the appellant, the Supreme Court by referring the decision in the case of Muthuswami Moopanar reported in AIR 1935 Madras 195, has observed that if a minor has for many years from a tender age lived with grand parents or near relatives and has been well cared for and during that time the minor's father has shown a lack of interest in the minor, these are circumstances of very great importance, having bearing upon the question of the interest and welfare of the minor and on the bona fide of the petition by the father for their custody. Bearing these facts in mind, the Supreme Court in para 20 of the judgment has further observed the conduct of the respondent father. The Supreme Court has observed that the respondent/father has borrowed money from several persons and since he has meager income he may not be in a position to give conformable living for the child. In spite of notice issued to him, he has not appeared before the court personally or through his counsel, which shows his lack of concern in the matter. The Supreme Court has further observed that the respondent/father
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got married for the second time and has a child too, and the minor child might have to be in the care of step mother, specially the father being a businessman, he has to be out of the house frequently on account of his business. In the facts of the said case, the Supreme Court thought it fit that the custody of the minor child be given to grand parents.
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respondent/father. Minor Deepali, due to her tender age, is not in a position to give her consent and she is not likely to face any mental strain or depression.
O R D E R
The first appeal is hereby dismissed. In the circumstances there shall be no order as to costs.
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disposed of.
shall be suspended for a period of of 8 weeks from today.
rlj/
3 issues framed by the court
Whether the father or the grandparent is entitled to the custody of a minor child.
Whether the appellants conducting a civil suit in the name of the minor while opposing custody is adverse to the child's welfare.
Whether the High Court should interfere when the District Judge recorded satisfaction regarding the child's welfare.
Colour shows how this judgement treated each authority
Smt. Anjali Kapoor v. Rajiv BaijalExplained¶42
Smt. Anjali Kapoor vs. Rajiv Baijal, AIR 2009 SC 2821 · Who else cites this
Muthuswami Chettiar & Anr. v. K.M. Chinna Muthuswami MoopanarReferred¶42
Muthuswami Chettiar and Anr vs. K.M. Chinna Muthuswami Moopanar, A.I.R. 1935 Madras 195 · Who else cites this
1 provisions across 1 enactments
Bhalchandra Dasrath Sarwade
Bhima Lahu Shitole
V. K. Jadav
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
