1 F.A.NO.1204/2004 with C.R.A.01/2007. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. FIRST APPEAL NO.1204 OF 2004. 1. Nana Sona Jadhav, Age: 57 years, Occ: Agriculture, 2. Jaibai W/o.Nana Jadhav, Age: 53 years, Occ: Household, & Agriculture, Both R/o: Palve Kd., Tal.Parner, Dist.Ahmednagar. ...Appellants. (Orignal Opponents.) Versus Smt.Surekha Ramesh Jadhav, Age: 33 years, Occ: Labourer, C/o: Shivaji Tatyaba Badhekar, R/o: Darewadi, Tal.Nagar, Dist.Ahmednagar. ...Respondent. (Ori.Applicant.) 1. Sachin R/o Ramesh Jadhav, Age: 12 years, 2. Reshma D/o Ramesh Jadhav, Age: 10 years, Both residing with appellants Original Opponents. ... Minors 2 F.A.NO.1204/2004 with C.R.A.01/2007. ... Mr.A.K.Gawali, Advocate for the appellants. Mr.Balaji S.Shinde,Advocate for respondent No.1. ... WITH CIVIL REVISION APPLICATION NO.01 OF 2007. Smt.Sharda Udhav Shinde, Age: 45 years, Occ: Pensioner, R/o: Mukundnagar, Ahmednagar. ...Petitioner. Versus 1. Surekha Ramesh Jadhav, Age: 35 years, Occ: Ayya, R/o: Darewadi, Tq.Nagar, District: Ahmednagar. 2. Shri Nana Sona Jadhav, Age: 62 years, Occ: Agri. 3. Sau.Jaibai Nana Jadhav, Age: 60 years, Occ: Household, Nos.2 & 3, Both R/o: Village Palvi, Tq.Parner, Dist.Ahmednagar. ...Respondents. MINOR Reshma D/o Ramesh Nana Jadhav, Age: 12 years, Occ: Education, At Present in the 7th Standard, Residing with the applicant- Sharda Udhav Shinde since 1998. .... Mr.Amol K.Gawali, Advocate for the petitioner. Mr.B.S.Shinde, Advocate for respondent No.1. 3 F.A.NO.1204/2004 with C.R.A.01/2007. Mr.Pravin D.Sangvikar, Advocate for No.2 and 3. .... CORAM: A.V.NIRGUDE,J. Date : 3rd August, 2009. ORAL JUDGMENT: 1. The appeal is filed against the judgment and order, dated 9th July, 2004, passed by the 3rd Adhoc Addl.District Judge, Ahmednagar in Misc. Civil Application No.1/2001, granting the respondent custody of her two minor children Sachin and Reshma. 2. The appellants are the paternal grand-parents of the children. The respondent, her husband Ramesh & their three children were staying together till Ramesh died in accidental death in 1997. The respondent, thereafter left the appellants house some time in October, 1999, taking with her youngest son Yogesh, who was then four years old. She alleged that the appellants and their family members ill-treated her, took away the compensation amount which she had received from the Motor Accident Claims Tribunal etc. She even alleged that the appellants' other son Ashok tried to outrage her modesty. She said, when she left her matrimonial house, the appellants and their family members unauthorisedly detained the other two 4 F.A.NO.1204/2004 with C.R.A.01/2007. minor children Sachin and Reshma with the result she could not take them with her. 3. It is common ground that Sachin is mentally retarded and is also suffering from certain illness, which is described by the Specialist Doctor as, "hypospadias" which means, "congenital defect in the formation of urethra". I am told that Sachin had already undergone two surgical operations and one more operation is needed. On the other hand, it is common ground that daughter Reshma is quite bright and intelligent and is studying now in 10th standard. 4. The appellants resisted the application stating, they were taking proper care of the children and were willing to continue such care. They accused the respondent as an opportunist purposely leaving the children with them. They mentioned that they had incurred expenses for the surgical operations on minor son Sachin. 5. The learned Judge of the Lower Court recorded the evidence of the respondent, her sister Rukhmini, the appellants and their daughter. He held the appellants were not in a position to look after the children properly. He found that they rather depended on their children Sharda and Ashok ( paternal uncle and aunt of the children) for looking after the children. The 5 F.A.NO.1204/2004 with C.R.A.01/2007. learned Judge, further recorded that minor son Sachin was mentally unfit and unable to make intelligent decision on the preference. He held, though the minor daughter Reshma stated that she was happy staying with her grand-parents, her preference was not correct in view of her tender age. 6. The learned Judge, rightly held that the appellants are old and aged, who did not have direct control over the minor children and, therefore, are not entitled to retain the custody of the minors. The learned Judge also observed that even the paternal aunt of the children Sharda was not fit to take care of the children. In the circumstances, the learned Judge held that the respondent being the natural mother, is entitled to the custody of minor children. 7. The question before this Court is, whether the judgment of the lower Court is correct and still valid ( after a period of five years )? The answer is in affirmative. 8. I perused the judgment of the lower Court and found that the reasons mentioned in it for granting custody of the minor children to the respondent and refusing such custody to the appellants, are quite cogent. The learned Judge, rightly held that the appellants' superior economic position would not 6 F.A.NO.1204/2004 with C.R.A.01/2007. determine such question. The learned Judge's reliance on the Judgment of Allahabad High Court, in the case of K.M.Sunita and another V/s Smt. Shyamkali (A.I.R. 1982 Allahabad, page 1 ) is also proper. The learned Judge rightly held that the welfare of the minors being the paramount consideration, they would be better of with their mother than their age old grand parents. 9. The learned Advocate appearing for the appellants brought to my notice, the fact that since filing of the appeal, the period of five years have passed and during these five years, the children have grown older. As far as the daughter Reshma is concerned, he said, she is now in 10th standard and is quite an intelligent person. He further pointed out that looking to her age she is in need of greater care and if she is now shifted from the custody of their grand parents to her mother, she would suffer an emotional shock. Besides her routine of school education etc. would all be disturbed. 10. The learned Advocate appearing for the respondent also showed me two judgments. The first judgment is of Supreme Court in the case of Jai Prakash Khadria and another V/s Shyam Sunder Agarwalla and another ( AIR 2000 Supreme Court 2172 ). The fact situation of the case before the Supreme Court was totally 7 F.A.NO.1204/2004 with C.R.A.01/2007. different and I think the findings of the Supreme Court in that case are not relevant for decision in this case. That was a case, wherein maternal- grandfather and paternal grand-father both were claiming custody of their grand child. We have a different case here. The mother is younger in age and is also having a source of income. Whereas, the appellants are old persons, now aged 65 and 70 respectively and probably are depending on their own children for their maintenance and livelihood. 11. The another judgment is of Kerala High Court in the case of Baby Sarojam V/s S.Vijayakrishnan Nair (AIR 1992 Kerala 277). The learned Advocate appearing for the appellants, placed reliance on this authority to invite my attention to the duty of the Court to speak to the children before passing the order. I am aware that the children must be spoken to in such a matters and, their views must be taken into account while deciding such applications. In this case, I have on record the observations of my two learned brothers who had occasion to have interaction with the children. In view of this advantage, I do not think it necessary to speak to the children once again. 12. As mentioned above, son Sachin is a mentally retarded person, besides having urethra problem. 8 F.A.NO.1204/2004 with C.R.A.01/2007. There is no point in talking to him because he is unable to make an intelligent decision. My learned brother ( Shri R.M.Borde, J.) has made observations in respect of his conversation with the minor daughter Reshma and the observations can be quoted here as under: "I have ascertained wishes of minor girl Reshma. She has specifically and in an unequivocal term informed me, in the presence of learned Counsel for both the parties, that she wants to pursue her studies. She was not very keen or interested accept suggestion that an arrangement shall have to be made with a view to have her meetings with her mother at a convenient place i.e. school or somewhere else. Reshma was not very responsive to the said suggestion. It appears, therefore, that minor girl Reshma is not very keen even in having meetings with her mother. Whatever may be the reason, the fact remains that minor girl Reshma wants to pursue her studies and is not very keen to remain in the company of her mother." 13. Reshma made a clear statement to the Court that she would rather stay with her grand parents than join her mother. The situation, however, has further changed. I am told across the Bar, Reshma is no more staying at Ahmednagar, but has been shifted to village Palwe Khd., Taluka: Parner, where her parental uncle Ashok resides. It is thus clear that the appellants have already given up their duty to 9 F.A.NO.1204/2004 with C.R.A.01/2007. maintain the children and have sent Reshma to their son. Reshma thus is now at the mercy of Ashok who is neither appointed as guardian, nor is given her custody. This is clearly a breach of the appellants' assurance that they would look after the children. They have virtually abandoned them. Ashok has no right to keep the children in his custody. I think, the situation is alarming and would certainly adversely affect the welfare of both the children. I think, they should now be sent to their mother. In fact there is no other choice left with me. The appeal deserves to be dismissed. Accordingly, it is dismissed. 14. In view of this, Civil Revision Application No.01/2007 stands dismissed. Rule is discharged. Civil Application Nos.7072 and 7073 of 2004, also do not survive. Both the Civil Applications stand dismissed. (A.V.NIRGUDE,J.) lkp