1 A.O. 121 of 2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 121 OF 2008 WITH CIVIL APPLICATION No. 18 OF 2008 Mr. Anil S/o Zumbarlal Abbad, Age 30 years, Occu. Business, R/o Majalgaon, Dist. Beed. Appellant V E R S U S Prakash Bansilal Kankriya, through it’s L.R.s Mrs. Kanchanbai W/o Prakashchand Kankaria, Age Major, Occu. Nil, R/o Ganesh Apartent, Sukhsagar Nagar, Pune 411046. Dist. Pune. Respondent Mr. G.K. Naik-Thigle, Advocate for the appellant Mr. S.S. Thombre, Advocate for respondent CORAM : A.V. NIRGUDE, J. DATED : 8th February, 2011 ORAL JUDGMENT 1. This appeal is filed against the order passed by the learned District Judge-I, Majalgaon, in M.C.A. No. 1 of 2008, refusing to hand over the custody of children of the appellant to him. The facts leading to the litigation are as under : 2. Minors aged 4 & 5 years, are admittedly the children of the appellant. Their mother Vaishali died on 21th August, 2007, due to burn injuries. After her death, Vaishali’s father (the original respondent) lodged a complaint against the appellant and his family 2 A.O. 121 of 2008 members alleging that Vaishali died dowry death at the hands of appellant and his family members. A crime was registered against the appellant and his family members. The appellant was arrested in the case, but was enlarged on bail subsequently. While Vaishali was admitted in the hospital and the appellant was in jail, the original respondent (since deceased), who was the father of Vaishali, took away the minor children to his house. 3. After the appellant was released on bail, he requested the respondent for custody of his children, but in vain. It is the case of the appellant that his children are not happy and are not maintained properly by the respondent. He, therefore, made this application. The original respondent opposed the application saying that the appellant is not a person of good character and keeping illicit relations with a woman. He asserted that handing over custody thus would not be in the interest of minors. In view of these rival contentions, the learned District Judge framed issues and recorded evidence of the parties, and on appreciating the same, he held that the appellant cannot be believed when he stated that children are not happy at the house of respondent. On the contrary, the learned District Judge found that the original respondent a better person in whose custody the children's welfare is protected. 4. The question before this Court is, in whose custody, the welfare of the minors is better protected? 5. Let it be noted that both the parties are related to the children. The appellant is admittedly the father. He has been acquitted from the case of dowry death. The alleged dowry death occurred on 21th August, 2007. He was arrested on 8th September, 2007. On 26th September, 2007 he secured bail. He was acquitted on 30th March, 2010. He has joint family house at Majalgaon. His family consists of 3 A.O. 121 of 2008 his old mother, his elder brother, brother’s wife and their three minor children aged eleven, nine and seven. The appellant’s family own agricultural land near Majalgaon and also run a grocery shop at Majalgaon. Appellant’s sister-in-law filed an affidavit in this Court, in support of the applicant’s case. In which she stated that she would take good care of the minor children along with her own children. In addition to this the appellant filed on record photographs showing his house, which appears large enough to accommodate the entire joint family. In short, the appellant is trying to prove that being the natural guardian of the children, he would love them and would take their care. 6. On the other hand, the original respondent Prakash died untimely, during the pendency of this litigation on 3rd August, 2009. In his evidence, he had stated that he was staying at Pune, in a flat along with his family members. He said his family consisted of his wife Kanchanbai, his son Pramod and his daughter-in-law. He said that his son had established a shop in the name of minor children. This is stated probably to show that the minor children are financially protected. He said that the minor children are provided all necessary facilities including food, education and medical care. 7. In addition to this, as per the directions of this Court, the respondent has also filed an additional affidavit. This is of Kanchanbai, the grand mother of the children, who stated that her age now is 52 years, and she has been staying with her son Pramod who has his own business having income of Rs. 62,000/- (Rs. Sixty two thousand) per month as well as a well furnished flat at Pune, having all modern house gazettes like T.V., Freeze etc. She said the income of the business is sufficient to fetch the entire family including the minor children. She said she has been giving love and affection as a 4 A.O. 121 of 2008 grand mother to the minor children. She also added that her son recently blessed with a daughter, who is now one and half month old. She reiterated the complaint against the appellant that he had illicit relations with a woman. 8. The learned District Judge who heard and decided the case, did not have an opportunity to interact with the children. He rejected the appellant’s plea, mainly on the ground that the appellant and his family members would blame deceased-Vaishali, the mother of the minor children for their arrest and ordeal of undergoing a Criminal trial and so they and the appellant would not welcome the minor children in their house. The learned Judge further held that the appellant’s joint family would not be suitable for the welfare of the children. He further held that the ladies of the appellant’s family would not be able to take care of the minor children. He observed that the mother of the appellant is old, whereas the sister-in-law of the appellant is already taking care of three minor children. 9. A similar situation arose before the Supreme Court in the case of “ Nil Ratan Kundu and Anr V. Abhijit Kundu, reported in 2008 AIR SCW 5769”. The Supreme Court took overall view of the law, on the subject and reiterated that paramount consideration while deciding the custody of the minor children is their welfare. It also held that the rights of the parties under the statute are not important. The Supreme Court observed that the question of custody of minor children is a human problem and should be solved with a human touch. The Supreme Court in para No. 56, observed as under :- “ In our Judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind relevant statues and the rights flowing 5 A.O. 121 of 2008 thereform. But such cases cannot be decided solely by interpreting legal provisions. It is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above, physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.” Though I had no occasion to interview the minor children, but record shows that my learned predecessor had taken interview of the elder child by name Jay, and he was told that the child would not go with the appellant. Taking overall view of the case, I would still hold that the welfare of the minor children in this case would be better protected, if they will be given in custody of the appellant. My reasons are as under :- REASONS : 10. The appellant has sufficient resources to bring-up the children. He has his joint family house at Majalgaon. Majalgaon is a Taluka place, where the children would get good quality education. The appellant has two sources of income; one from the agriculture and other from his grocery shop. The appellant’s sister-in-law at the 6 A.O. 121 of 2008 moment and for next few years, would be able to take care of the minor children along with her own children. The minor children in this case, at the moment are seven and four and half years old. The appellant’s niece and nephews are eleven, nine and seven years old. The youngest of the children of the appellant’s brother is old enough not to compete with the younger of the minor children for love and affection of his family members. There is of course possibility that appellant would get re-married in the near future, and the women he would marry would certainly be aware that she would take care of these minor children also. Besides, the appellant has stated on oath that he has at least two household helps to take care of his households, including the minor children. 11. On the other hand, the establishment of the original respondent and now of his widow Kanchanbai is not as sound as that of the appellant. As said above, the respondent is dead and gone. Kanchanbai is fifty two year old grand mother who is now having three grand children including the new born daughter of her son. It is admitted fact that the minor children of this case were staying together at Pune. Recently one of them has been shifted to Shirur, a Taluka place to stay with her maternal aunt - his mother’s sister who does not have issue of her own (this child was brought to the Court from Shirur for interview and was found happy in his situation.) The other child stays at Pune with his grand mother and maternal uncle. I think separating the children would not benefit the children in longer run. They have already lost their mother, the father at present is estranged. They had each other as immediate family. So separating them would have detrimental effect on their upbringing. These circumstances in my view, would weigh against the case of the respondent. 7 A.O. 121 of 2008 12. I am aware that after the death of their mother the minor children had suffered emotional shock, and that they came out of the shock due to comforting presence of their maternal grandparents and the maternal uncle. I am also aware that after they endured the shock, they continued to receive the love and affection of their maternal grand parents and the maternal uncle. For the sake of argument, I am assuming that they are not separated and are staying together with their maternal grand mother and maternal uncle. Still whether this arrangement would last longer? I think it would not. Sooner than later the people who are taking their care would start feeling pinch of their onerous duty of bringing-up child of other people. At such event, the minor children would not have an option to go back to their father and then they would suffer. This situation in future would not be conducive for their welfare. On the other hand, if the minor children are sent to their father, gradually they would get used to stay in their own house with their own father. The joint family status of the appellant’s family, I think, would prove beneficial for the welfare of the children in the longer run. The minor children would soon get accustomed into their father’s house. They would get befriended with their cousins. No doubt, there are still two difficulties for them. Firstly, their father would not be able to give them company all through out the day, because he has his business to look after. Second difficulty they are likely to face, is their father’s remarriage. However, having regard to the presence of the other family members in the house would certainly dampen the detrimental effects on above two circumstances. I am sure that even the stepmother would be aware of the situation in the house. In other words, it is quite possible that the new comer to the family would be able to handle the responsibilities of the minor children. The fear expressed by learned Judge of the lower Court, that the family 8 A.O. 121 of 2008 members of the appellant’s would hate the children because their mother brought them agony is mis-placed. Family members of the appellant would always consider that the minor children as their own flesh and blood. So, their attitude towards the children would be different and would not affect their natural love and affection towards them. Let me now examine the issue relating to moral and ethical of up-bringing of the children. Unfortunately, during their young age, their mother died in a unnatural circumstance. This event could certainly affect their moral as well as ethical values. If they are allowed to stay with maternal grand parents' family, they would hear ill about their father's ethical as well as moral standard. They would thus, grow up hearing that their father was a bad man, a murderer etc. However, if minor children are brought up at their father’s house then they would not be exposed to such environment. No doubt in this family the topic of their mother’s death would be a taboo and would be avoided in conversation, Yet in future, the environment in this family would most probably allow them to forget the painful past events. So, having regard to the conditions that prevailed in the two rival families, I think the family of the appellant should be better choice and the minor children should be sent there. ORDER A. The appeal is allowed. B. The impugned order is set aside. The appellant is given custody of the minor children. The education of the minor children shall not be disturbed till April, 2011. After final examinations of the children are over they should be brought to the appellant’s house in the company of the respondent / Kanchanbai. The appellant shall arrange a car to bring the children and Smt. Kanchanbai to his house. 9 A.O. 121 of 2008 Smt. Kanchanbai shall stay with the children for at least two weeks, and if required for more time. In this period, the appellant as well as Kanchanbai and other members of the family shall create conducive atmosphere in the house. The minor children would not feel uncomfortable due to change of their house. The appellant shall also arrange a car to send back Kanchanbai. The appellant shall take the children to meet their maternal relatives every six months and shall allow their maternal relatives to come to his house, and to meet the minor children, as and when they desire. The appellant shall pay costs quantified the tune of Rs. 5,000/- (Rs. Five thousand) to the respondent's widow Smt. Kanchanbai. C. In case, Smt. Kanchanbai is unable to undertake the journey from her house along with minor children after their annual examinations, she has liberty to nominate any one from her family to go with the children. The person accompanying with the children in such a manner is at liberty to stay in the house of the appellant for at least two weeks or until the children are comfortable. D. Until the final examination of the children are over the appellant is permitted to visit the children on weekends. Initially, the appellant shall see them for couple of hours and may increase the time gradually. E. The application for stay of the effect of this order is rejected because this order take effect only after April 2011. F. Civil Application No. 18 of 2008 stands allowed. ( A.V. NIRGUDE, J. ) SDM*AO 121.08/80211/ok 10 A.O. 121 of 2008