fa2686.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 2686 OF 2010 Shri Dhananjay s/o mahadev Shedge & others .. APPELLANTS VERSUS Sau. Vidya Dhanajay Shedge .. RESPONDENT Mr. Palwe, learned counsel for the appellants. Mr. Gawali, learned counsel for the respondent. ===== CORAM : R.M. BORDE, J. RESERVED ON : 19TH JULY, 2011 PRONOUNCED ON : 10TH AUGUST, 2011 PER COURT : 1 This is an appeal by the appellants / original opponents ( hereinafter referred to as the ‘opponents’) raising exception to the order passed by the District Judge – 3, Ahmednagar in Misc. Civil Application no. 210/2009 decided on 24-11-2009. 2 Respondent herein / original applicant before the District Court ( hereinafter referred to as the applicant ), tendered application seeking fa2686.10 2 custody of the minor child by name Yash. The marriage of the applicant with opponent no. 1 took place at Pune on 28-7-2005. The child who was named later on as Yash was born to the couple from their matrimonial relations. Initially, for few years, the couple was staying at Ahmednagar without any matrimonial disturbance. It is contended by the applicant / wife that opponent no. 1 developed extra marital relations with another woman and started ill-treating the applicant. In the meantime, the applicant gave birth to a second child in the month of October 2008. The female child who was born later on was staying with the mother at the time of presentation of the application. Applicant contends in the application that while she remained away from the matrimonial home and while she was pregnant on second occasion, opponents mis-represented her that it would be difficult for the applicant to look after the male child and he shall be comfortable in the company of grand parents at Pune. Since after delivery of the applicant for the second time i.e. on 6-10-2008, the opponents refused to restore the custody of the child i.e. Yash to the applicant. The applicant therefore issued notice to the respondents seeking custody of the child. As the opponents did not pay any heed to the request of the applicant in respect of restoration of custody of the child, she was constrained to file the application seeking custody of the minor child, Yash. fa2686.10 3 3 The application was opposed by the opponents by presenting say. It is the contention of the opponents that the applicant is mentally retarded and is not in a position to look after herself as well as the child. Opponents denied the allegations in respect of opponent no. 1’s having extra marital relations with another lady. Opponents prayed for rejection of the application. 4 Trial court, after extending an opportunity of hearing to both the sides was pleased to allow the application in view of order dated 24-11-2009. The order passed by the District Judge directing restoration of custody of minor child, Yash, to the applicant, is subject matter of challenge in this appeal. 5 I have heard arguments advanced by Mr. Palve, learned counsel for the appellants and Mr. Gawali, learned counsel for the respondent. It is the contention of the appellants that the applicant / respondent herein is mentally retarded and is not in a position to look after the welfare of the child. According to the appellants, the child was admitted to a prestigious school at Pune and he would be better looked after by the appellants. Respondent does not have capacity to take care of the child either fa2686.10 4 financially or otherwise. It is also contended that the financial position of the respondent / original applicant does not permit her to take proper care of the child. She finds it difficult to maintain herself and in such circumstances, it is a matter of speculation as to whether she would be in a position to look after the welfare of the child. 6 Respondent controverted the contentions raised by the appellants and contended that she is financially as well as in all other respects capable of taking proper care of the child. It is contended that respondent is employed and is earning for herself and is also in a position to maintain the child. The allegations in respect of respondent being mentally retarded have been denied by the respondent. It is also pointed out that the court below has recorded finding on consideration of material before it, that the respondent herein is capable of taking care of the child. It is contended that it would not be in the interest of the minor child to permit him to remain in the custody of the appellants. It is also contended that even though the applicant / respondent herein gave birth to a female child in the year 2008, the father i.e. appellant no.1 herein has not taken care to enquire as regards the welfare of the female child nor has claimed her custody. This denotes the attitude of the appellants. He is not seriously interested in securing fa2686.10 5 custody of the child but wants to secure order with a view to exclude his liability in respect of payment of maintenance allowance. Respondent / original applicant therefore prays for rejection of the application. 7 In the matters concerning custody of the child, welfare of the minor is of paramount consideration. Application in respect of custody of the child need not be decided only on interpretation of the Statute and the relevant provisions. Restitution of custody of child, being a human problem, is to be dealt with human touch. The wishes of the child have also to be taken into account. The responsibility is also cast, while adjudicating such problems, to ensure amicable solution to the problem by adopting the mode of alternate dispute resolution. Keeping in mind the parameters governing adjudication of such issues, the matter was referred for mediation to Mr. Godbole. The mediator made sincere efforts to resolve the problem. However, the parties did not agree. As such, the appeal is required to be taken up for rendering decision on merits. 8 Keeping in view the principles laid down by the Apex court, the child was directed to be produced before the court. I have interviewed the child in presence of the learned counsel for both the parties. The child by name fa2686.10 6 Yash was produced in the chamber on 28-6-2011 at 2.30 pm. The child appeared to be quite intelligent. He was asked whether he wants to remain in the company of father and wants to join the school at Pune. However, he expressed his opinion in clear terms that he does not want to go alongwith father and further stated that he is happy in the company of mother. 9 Apart from the aspect relating to ascertainment of wishes of the child, I find that the child is of very tender age i.e. below 5 years and needs the love and affection of the mother. He would be better of in the company of mother. I have also ascertained as to whether the mother would be in a position to take care of the educational and other needs of the child and I am satisfied that the mother has the source to look after the welfare of the child. For facilitating proper decision in the matter reference can be made to the principles enunciated by the Apex Court in the matter of Nil Ratan Kundu and another vs. Abhijit Kundu reported in (2008) 9 Supreme Court Cases 413. The Apex Court has observed in paragraph no. 52 of the judgment thus : 52 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 the custody of a minor, a court of law should keep in mind the relevant statutes and the fa2686.10 7 rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human 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 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. . Taking into consideration the parameters laid down by the Apex Court so also taking into account the wishes of the child, I am not persuaded by the arguments advanced by the appellants that the father needs to be handed over the custody of the minor. The trial Judge has adopted correct approach in the matter and was justified in turning down the application tendered by the appellants herein seeking custody of the child. 10 Now this takes me to consider the other issue raised before me in respect of right of the father to meet the child and to have access to the child with a view to facilitate him to remain in the company of child for a few fa2686.10 8 hours in a week. I have enquired with both the parties i.e. appellants and respondent as to what arrangements can be made so as to facilitate appellant nos. 1 to 3 to meet the child periodically. Both the parties agree that necessary arrangements can be made for permitting the appellants to meet the child at the office of Adv. Mr. K.G. Gawali at Ahmednagar. Adv. Mr. K.G. Gawali, apart from being a senior member of the Bar also takes keen interest in social issues and is a well known social worker in the region. Both the parties therefore agree that appellant nos. 1 to 3 would be permitted to meet the child at the office of Adv Mr. K.G. Gawali at Ahmednagar on every Sunday between 11.00 am to 4.00 pm. It would be permissible for the appellants to remain in the company of the child for the prescribed hours on the relevant day i.e. on every Sunday. Applicant / respondent herein undertake to reach the child at the office of Mr. Gawali at every Sunday by 11 O’ Clock. Appellants also take responsibility and undertake to return the child at the office of Mr. Gawali at Ahmednagar by 4 O’ Clock on the relevant day i.e. on every Sunday. This arrangement is made in respect of visitation of the child, with the consent of the parties. Appeal presented by the appellants being devoid of substance stands dismissed. The parties agree to abide by the understanding reached between them in respect of exercise of right of visitation of the appellants in fa2686.10 9 relation to the child. In the facts and circumstances of the case, there shall be no order as to costs. 11 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE,J.) dyb