1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.3099 OF 2006 Dattajirao S. Bhosale ..Appellant Age : 72 yrs R/o.C/o.Prakash V. Budhale “Pratibha” 546/7 Rajendra Co-operative Housing Society, Rajendra Nagar, Kolhapur V/s. Shashishekhar Sahebraon Dhumal ..Respondent Age : 37 yrs, Occu : business R/o.41, Saiprasad, Camp, Sadar Bazar, Satara Mr.M.L.Patil, advocate, for appellant Mr.Uday P. Warunjikar, advocate, for the respondent CORAM : A.S.OKA, J DATE : 27TH MARCH, 2008 JUDGMENT . The submissions of the learned advocates appearing for the parties were heard on the last date. This is an unfortunate dispute for custody of minor girls. The respondent is the father of the girls and the appellant is the maternal grandfather. The marriage between the respondent and the daughter of the appellant was solemnized on 2 2nd June, 1991. The elder daughter Samira is born on 27th June, 1992 and the younger daughter is born on 8th March, 1995. Thus, the present age of the elder daughter is more than 15 years and ½ years. The younger daughter is 13 years old. The mother of the unfortunate girl committed suicide in the year 1997. From the date of her death i.e.16th June, 1997 the custody of the minor girls is with the appellant. An application made by the respondent for custody was contested by the appellant. By the impugned Judgment and Order, the learned Judge has directed the appellant to handover the custody of the minors to the respondent. 2. On 12th December, 2007 when the appeal was kept in chamber, I had an occasion to interview both the girls. By Order dated 18th December, 2007, an interim arrangement was worked out regarding grant of access to the respondent. 3. Submission of the learned advocate appearing for the appellant is that the custody is sought to 3 be disturbed by the Trial Court only on the ground of the legal right of the father as a natural guardian. He submitted that at this stage it will not be in the interests of the minors who are grown up girls to disturb the custody. He invited my attention to the evidence of the witnesses recorded by the Trial Court. 4. The learned advocate for the respondent pointed out that now both the girls have grown up. He pointed out that the age of the present appellant is more than 70 years. He invited my attention to the evidence on record. He submitted that the appellant has no regular source of income and he has to depend on others for financial help. He pointed out the evidence of the son of the appellant which discloses that the daughter of the appellant is paying monthly amount to him for household expenses. He submitted that there is no financial security to the minor girls, if they continue to be in custody of the appellant. As against this, he pointed out that the respondent is having a large income. He invited my attention to 4 the evidence of the respondent. He pointed out that in the said evidence he has specifically deposed that the appellant has no permanent source of income after he retired as a Clerk working with the Maharashtra State Road Transport Corporation. He invited my attention to the cross examination of the appellant. He pointed out that even the appellant admitted that the financial condition of the respondent was very good and the respondent was residing in his own house along with his brother and mother. He pointed out that the appellant admitted that he was not getting any pension. He pointed out that though the appellant stated that his son was earning income, in fact, the son admitted that he was receiving certain amount per month from his sisters. He submitted that apart from the fact the respondent is the only natural guardian even if all the relevant factors are balanced, the balance must tilt in favour of the respondent. He submitted that the minors may have expressed their desire to stay with their grandfather, however, that alone is not a deciding factor. He placed reliance on the decision in the 5 case of Mahadeorao son of Zabuji Ugale v. Kisanrao son of Mahadeorao Lawange, reported in AIR 1996 BOMBAY 221. He also placed a reliance on a decision of the Apex Court in the case of SHEILA B. DAS Versus P.R.SUGARSREE, reported in (2006) 3 Supreme Court Cases 62. He submitted that the Court should not be influenced by the facts disclosed and the wishes expressed by the minor daughters during the course of interview by the Court. 5. I have carefully considered the submissions. It will be necessary to refer the impugned Judgment of the learned Trial Court. In paragraph 17 the learned Judge has referred to the financial condition of the parties and observed thus :- “The opponent himself is depending upon others i.e.his son and two married daughters. It is true that at present both the minors are taking education in die school and minor Samira stated in her evidence that she is not having wishes to live with the Applicant. Considering the evidence of opponent and his witnesses on record as well as the age and financial condition of the opponent, it is clear that the opponent is not in a position to maintain the minors properly in future, as he himself is depending upon his two married daughters. It is true that if minor is capable of 6 forming in independent opinion and express his views the Court is bound to take them into consideration. Though the Court may ascertain the wishes of minor such wishes are not controlling on the court and me Court has to assess the entire facts and circumstances of the case and in appropriate cases can even disregard the wishes and preferences expressed by me and minors especially when the Court gathers an impression that the minors have not given answers on the question of their wishes voluntarily but under influence and tutoring. In the present case it is admitted that since 13.6.1997 both the minors are residing with the Opponent and considering the above aspects it can be easily inferred that the minor Samira due to influence of the opponent is expressing her view that she is not willing to live with applicant and, therefore, I do not find any substance in me submissions of the learned counsel for the opponent.” 6. After making the aforesaid observations the learned Judge proceeded to held that “It is well settled principle that father is not only the natural guardian but has inalienable right to the custody of his minor son, unless there area overwhelming circumstances to the contrary, and a very strong case has to be made out to overrule the right of the father and mere allegations that the father illtreated the child mother before her death and had married a second wife, and that the child was brought up from its birth by its maternal grandmother, it would be cruel to remove it from them is not sufficient ground to deprive the father of the custody of his child.” 7. It is not in dispute that from June, 1997 onwards the minors are in the custody of the appellant maternal grandfather. It is pertinent to 7 note that the application for custody was made by the respondent in the year 2004. It is true that the wishes of the minors is not a conclusive factor. It must be noted here that I found both the daughters to be very matured. They were fuly aware of the pending dispute between the appellant and the respondent. Both of them explained that they have been very comfortable residing in the company of their grandfather and other members of the family. As stated earlier the present age of the elder daughter is 15 and ½ years and younger daughter has completed 13 years. Both of them appeared to be intelligent from their conversation. It is not possible to accept that they were tutored. On the contrary, the elder daugher displayed a good maturity. 8. It must be stated here that there is nothing on record to show that the minor girls are either not properly looked after or that their education is neglected. Such allegation has not been made or substantiated in the evidence of the respondent. The case made out by the respondent is that he has 8 a better right for custody and he is in a better financial condition to lookafter the needs of the minors. 9. The elder daughter is at a crucial age of her educational carrier. The age of the younger daughter is also more than 13 years. When there is no material on record to show that the appellant is not performing his duty as a de-facto guardian of the minors it is very difficult to disturb the custody of the minor girls of such sensitive age. They have been with their grandfather for last more than ten years and if at this stage their custody is disturbed, it will adversely affect minors in many ways. They will be subjected to emotional stress. It may have adverse impact on their studies. All these realities of a life cannot be ignored by the Court while deciding the sensitive issue of custody of minor girls. Only on the basis of legal right of the respondent or his better financial condition, custody of the appellant cannot be disturbed after lapse of ten years. The appellant or his son may not have regular income. 9 But the daughers of the appellant are regularly extending financial support to them. There is nothing on record to show that the minors are affected by alleged poor financial condition of their grandfather. 10. Considering the evidence on record and after considering the wishes disclosed by the minor daughers in their personal interview, it is impossible to disturb the custody at this stage. The welfare of the minors is the only paramount consideration. Any attempt to disturb the custody will have drastic consequences. I find that the order of disturbing the custody is not at all in the interests of the minor girls. Hence, the order has to be set aside. The advocate for the appellant has no objection if the arrangement for grant of access which was made during pendency of the appeal is continued. The interim order makes a provision for grant of access to the appellant to meet the minor girls in the house/office of Shri Ganpatwar Pawar, advocate at Kolhapur. The advocate for the appellant stated that the said 10 advocate has shown willingness to continue his co- operation. Before parting with this Judgment, the gesture of Shri Ganpatrao Pawar, advocate has to be appreciated. 11. Hence, I pass the following order. (i) The impugned Judgment and Order dated 5th October, 2006 is quashed and set aside and G.W.Application No.168 of 2004 is dismissed. (ii) Interim arrangement made by an order dated 8th December, 2007 in terms of Clause 4 thereof will continue to operate till further orders. (iii) In case of any difficulty or in case the parties desire to get the order regarding grant of access modified, the parties are at liberty to apply to the Trial Court. The Trial Court will pass appropriate order after hearing both the parties. (iv) Civil Application does not survive and same is disposed of accordingly. (A.S.OKA,J.)