1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 196 OF 2007 Bandulao Ramchand Gujar & ors ........Appellants versus Chetan Vijaykumar Shah ........Respondent. Mr. P.D. Dalvi adv. for the Appellant. Mr. N.P. Deshpande adv. for the Respondent. CORAM: A.P. DESHPANDE AND SMT. R.P. SONDURBALDOTA, JJ. DATED : 28th April, 2010. ORAL JUDGMENT :(Per A.P. Deshpande, J.) 1. The present respondent is the natural guardian/father of the minor child by name Kashmira. In a petition filed by the respondent under the Guardian and Wards Act read with sec. 7 (g) of the Family Courts Act 1984, a decree has been passed in favour of the respondent and against the present appellants directing the appellants to hand over the custody of the child to the respondent within a stipulated period. It is not in dispute that the decree passed by the Family Court directing handing over the custody of the child to the respondent has been already executed and the respondent/father is presently in custody of the child. The present appellant nos. 3 and 4 are the father in law and mother in 2 law of the respondent whereas the appellant no.1 is the brother of the father in law and appellant no.2 is his wife. The present appellants especially appellant nos.3 and 4 who happened to be the grand father and grand mother of the child from the material side are seeking to enforce right to have the custody of the child. The dispute in this appeal arises in the following fact situation which we briefly proposes to record. 2. The marriage of the respondent with the daughter of the appellant nos.3 and 4 by name Swapnali was performed on 30th June 2001 at village Nipani which is some where near Karnataka boarder as per Hindu rites and customs. Kashmira, the daughter was born out of the marital wedlock on 16th May 2002. The wife of the respondent, after the marriage was staying along with the respondent with his family, which comprises of parents of the respondent. The daughter, born out of the wedlock, whose custody is subject matter of this appeal since birth was staying at the residence of the respondent. The respondent is a commerce graduate and he is engaged in the business along with his father and operates in the market yard at Pune which is at five minutes distance from the residence of the respondent. On 15th June 2005 when the respondent was not at home, he received a message that his wife Swapnali had consumed poison. The respondent immediately rushed to his house and took his wife for medical treatment to Rao Nursing Home. The incident was immediately informed by the respondent to his in laws viz. the present appellants on telephone. The appellants 3 and 4 immediately 3 rushed to Pune where the respondent resides. The wife of the respondent Swapanli was in the hospital and was undergoing medical treatment from 15th June 2005 to 22nd Ajune 2005. On 22nd June 2005 Swapnali expired. It is only after the death of the wife of the respondent that the present appellant nos.3 and 4 lodged the FIR. 3. After the unfortunate death of the wife of the respondent, her funeral was performed on 22nd June itself at Pune. Before performing the funeral, it is the case of the respondent, that the present appellants insisted that the child Kashmira be also brought to the cremation place named Vaikunth or otherwise they would not permit the funeral to take place. Obviously the respondent being under pressure had to succumb to the demand of the appellants and hence the two years child was taken to the cremation place where the funeral of Swapnali was performed. It is further the case of he respondent that from the place of funeral, surreptiously the child was taken in custody by the present appellants and removed to the place of their residence at Nipani. Whereas according to the present appellants, the respondent himself voluntarily handed over the custody of the child to the appellants and hence they had taken her to village Nipani. The respondent and his parents came to be arrested by the police on 27th June 2005 for the alleged commission of offence under section 306 read with 498-A read with section 34 of IPC. Within few months the respondent instituted the petition for custody of the minor child in the Family Court on 19th October 2005. 4 4. In the above narrated factual matrix and having regard to the pleadings, the Family Court framed issues. The issue no.1 is to the effect as to whether the petitioner proves that the minor daughter Kashmira was deceitfully removed by respondents on 22nd June 2005 from Pune to Nipani, obviously from the lawful custody of the respondent. The next issue is as to whether the respondent is a proper person to get the permanent custody of the child, and lastly whether it is proved that it is in the interest and welfare of the child to give custody of the child to respondent/father. 5. Touching the said issues parties have led evidence. It is crystal clear and not in dispute that the respondent being the father is a natural guardian of the child who is now aged about five years. The child since birth till date is in the custody of the respondent and residing at his place in Pune except for a period of few months when the child was removed by the present appellants from Pune to Nipani from the graveyard at the time of performing funeral of Swapnali. It is not in dispute that the respondent is a educated person engaged in the business along with his father and the business place is at market yard, Pune which is at a short distance from the residence of the respondent. The mother of the respondent, viz, the grand mother of the child is a house wife and can look after the grand child and the child is presently admitted in a school at Pune. As against this the family background of the appellants is that, the appellant nos. 1 and 3 father in law of the respondent and his brother are engaged in transport business. 5 The evidence reveals that most of the time, on account of nature of their business they are supposed to be out. The appellant no.4 viz. Grand mother of the child from the maternal side viz. The wife of appellant no.3 is a woman engaged in spiritual activities, according to the finding recorded by the Family Court. On the basis of the evidence on record, the family court has reached the conclusion that appellant no.4 spends most of her time in spiritual activities and visit to temples and does not appear to be much interested in worldly activities. On a comparison of the social and financial background the Family Court has concluded that the welfare of the child would be better served if she is in custody of the respondent, her natural guardian/father. 6. It is relevant to note that when the Family Court decided the custody petition, the prosecution against the respondent and his parents was pending. The prosecution has now concluded and by a judgment and order of the Sessions Judge, Pune, the present respondent and his parents are acquitted. Copy of the judgment and order of the Sessions case is placed on record and we have perused the same. 7. With a view to establish that the respondent is keen to provide good quality education to the child in best of the school at Pune, various documents are placed on record by he respondent before Family Court. The respondent also placed on record the insurance policies taken in the name of the respondent, his wife and the minor daughter. After taking into consideration the evidence led by the respondent touching the school admission and 6 insurance policies etc. the Family Court has concluded that the welfare of the child would be safe in the custody of the respondent/father. The Family Court had no difficulty in arriving at a conclusion that the case put forth by the present appellants that the respondent voluntarily handed over the custody of the child to them was wholly improbable and unsustainable and has rightly concluded that on 22nd June when the child was brought at the funeral place, she was deceitfully taken in custody by the present appellants and removed to Nipani. Having so held that there was no impediment in passing a decree in favour of the respondent under the provisions of section 25 of the Guardianship and Wards Act decreed the petition. It is obvious from the facts and circumstances on record that custody could be denied to the respondent/father only if the appellants establish that the respondent is not a fit person to have the custody of the child. There is absolutely nothing on record to indicate that the respondent is not a fit person to have the custody, but for the prosecution, for the alleged commission of offence under section 306 read with 498-A of IPC there is nothing against the respondent. The prosecution having ended up in an acquittal, the said circumstance cannot be used against the respondent to deny the custody. We are in agreement with the view taken by the Family Court that the welfare of the child, which is the main concern while adjudicating the application for custody, would be with the respondent/father. Having so concluded that it would be in the interest of the welfare of the child if the child’s custody is 7 with the respondent, we proceed to deal with one of the technical objection raised by the learned counsel for the appellants. In the submission of the learned counsel for the appellant, the Family Court at Pune has no jurisdiction to entertain and try the petition for custody filed by the respondent. So contending, the learned counsel for the appellant has placed reliance on the language used in section 7 of the Family Court Act. According to the learned counsel only family disputes are to be entertained by the family Court and the present dispute not being the family dispute, the same is not capable of being adjudicated upon by the Family Court. Section 7 reads thus: “ 7. The Family Court shall have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation:- Explanation:- The suits and proceedings referred to in this sub section are suits and proceedings of the following nature, namely: a) .... b)..... c)...... d)..... e).... f)..... 8 g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.” 8. The petition filed by the respondent in the Family Court being proceedings in relation to guardianship and custody of his minor daughter, we see no impediment in the way of the Family Court to entertain and decide the said dispute. On the plain reading of section 7, in our considered view, Family Court possess jurisdiction to decide the dispute raised in the petition filed by the respondent. The submission made by the learned counsel for the appellants being wholly unsustainable in law, we reject the same. 9. At this stage, the learned counsel for the appellants submits that the appellant nos. 3 and 4 being grand father and grand mother of the child from the maternal side, are entitled to have access to the child and urged to provide them access to the child. The learned counsel for the respondent in all fairness does not oppose grant of access to appellant nos.3 and 4 and submits that as and when the appellants 3 and 4 desire to have access to the child they may intimate to the respondent in advance so that the meeting would be arranged at the residence of the respondent himself or at such other place which parties may mutually agree. Having found that the welfare of the child would be safe in the company of the respondent/father, we have no hesitation in 9 dismissing the appeal and and we dismiss the same with no order as to costs. (A.P.DESHPANDE, J.) (SMT. R.P.SONDURBALDOTA, J.)