1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 12 OF 2008 WITH CIVIL APPLICATIONS Uday Harilal Joshi ...Appellant Versus Yogesh Bhagwandas Mehta ...Respondent Ms. Pradnya Chavan h/for Mrs. Manjula Rao for the Appellant Mr. Hemant Ingale for the Respondent. CORAM: B ILAL NAZKI and S.A. BOBDE, JJ. DATE: NOVEMBER 11, 2009 P.C.:- This is an appeal against the order of the Family Court. The respondent has been granted custody of the child Drishti on the ground that he is the natural father. The custody of the child has been with the appellant, who is the maternal uncle after the death of the child’s mother. 2 2. The Family Court has given the custody of the child to the father. The child is aged 10 years. We examined her yesterday in our chamber. We talked to her in the absence of her father or uncle. Then, we talked to her in their presence as well. 3. The child is a special child, with difficulty in talking and also in hearing. She uses a hearing-aid, but is not able to communicate freely. Her mother has died. After having spent considerable time with her, we were of an opinion that the child continues to be in some kind of trauma. 4. It was also revealed to us that the relations between her father and her maternal uncle and others on mother’s side are not cordial. Her maternal side has a feeling that the child’s mother did not die a natural death, whereas the feeling of the father of the child is that after the death of his wife, the maternal uncle of the child is out to grab all the properties of his deceased wife. These apprehensions and beliefs may be right, may be wrong, but the fact of the matter is that the hostility between the father of the child 3 and her maternal uncle is playing havoc with the growth of the child, who is otherwise having some disability. 5. Whenever we talked to her about her going to the father, she was almost uncontrollable, and would weep and sob, and would plead that she does not know anybody, and her father is dead, and she stated that she is happy in the company of her maternal uncle. Though the father is the natural guardian, yet, in these circumstances, this Court would not be in a position to take the risk of handing over such a child to her father. 6. In our meeting, we suggested to both her father and uncle to get the child counselled by a psychiatrist, and also get themselves counselled by a psychiatrist. The cordiality of relations between these two persons is very important for the future, normal growth of the child. 7. Therefore, we have requested both these persons to forget their past, because they appeared to be very interested in the welfare of the child, and for her welfare, we advised them to 4 have counsel of a psychiatrist, so that they can close the chapter of hostility, and start relations afresh for the better and normal development of the child concerned. 8. We are conscious of the fact that in this case, we are not dealing with merely the rights and liabilities of the respective parties, but we are dealing with the future of a child. We find from the order in appeal that the trial Court has granted custody to the respondent-father, primarily because the respondent is the father. While doing so, the trial Court has not accepted the Home Study Report of the marriage counsellor at Exhibit 52, apparently because the marriage counsellor appeared to be biased in favour of the respondent. We do not see sufficient ground for inferring bias in the present case, and it appears that the trial Court was offended because the marriage counsellor opined to the learned Judge in the chamber that the custody should be granted to the appellant – maternal uncle of the child. In the present case, having interviewed the child and perceived the trauma that she appears to be going through, we are of the view that if we are to give due weight to the paramount consideration that the welfare of the 5 minor is all important, the custody of the child ought to remain with the appellant, though he is the maternal uncle. The child feels comfortable with him. On the other hand, the child appears very scared and apprehensive at the prospect of being with the respondent, who is the natural father. We do not consider it appropriate to take away the custody from the appellant because the child has a defect in her speech and hearing. It does not appear that her condition is due to any failure on the part of the appellant to treat her, as observed by the trial Court. 9. Therefore, we hope that both the father and uncle of the child will listen to the cries of this child, and make her life joyful. These persons have agreed that for counselling, they will consult - Dr. Alka Joshi, Head, Department of Psychology, Ali Yavar Jung Institute, Bandra Reclamation, Bandra (West), Mumbai 400 050. 6 10. In the meantime, the uncle of the child has also agreed that whenever a request is made by the father of the child to meet the child, a meeting shall be arranged. 11. We make it clear that the uncle of the child would be responsible solely for the maintenance, upkeep and the health-care of the child. 12. The speech therapy of the child shall be continued before a competent and qualified therapist. 13. With these observations and directions, the order of the trial Court is set aside, and the appeal is allowed. All Civil Applications stand disposed of. BILAL NAZKI, J. S.A. BOBDE, J.