fa763.11 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 763 OF 2011 WITH CIVIL APPLICATION NO. 5217 OF 2011 Kirshna s/o Trimbak Sumbh, Age 31 years, Occ. Agriculture R/o. Manjri, Tq. Gangapur, District Aurangabad ...Appellant Versus Bhausaheb s/o Parbhat Nemane, Age 67 years, Occ. Agriculture, R/o. Shire Saygaon, Post. Katpimpalgaon, Tq. Gangapur, Dist. Aurangabad ...Respondent ..... Mr. Pradeep B. Salunke, advocate for the appellant Mr. A.K. Bankar, advocate for respondent ..... CORAM: MRS. MRIDULA BHATKAR, J. DATED: 14TH SEPTEMBER, 2011 JUDGMENT :- 1 Heard. Admit. 2 By consent of counsel for the respective parties, heard finally. 3 By the instant appeal, the appellant takes exception to the order dated 5.2.2011 passed by the learned District Judge-3, Aurangabad in Misc. Application No. 438 of 2008. The issue involved in the instant fa763.11 -2- appeal is handing over the custody of minor female child, aged about 12 years. The present appellant is the original applicant and is father of minor child and the respondent herein is the father-in-law of the appellant and grand father of the minor child. 4 The appellant got married to Alka, daughter of respondent on 17.3.1998. Out of said wedlock, a female child Priya is born on 3.8.2000. The appellant and Alka stayed together for initial years of their married life. However, they could not stay together thereafter due to some disputes. According to Alka, the appellant used to pick up quarrels with her and it was not possible for her to stay with him. She was constrained to leave the house of the appellant and started residing with the respondent. Alka then filed maintenance proceeding i.e. M.A. No. 66 of 2004 under Section 125 of Cr.P.C. against the appellant and in the said proceedings, the learned J.M.F.C. Gangapur on 4.3.2005 passed an order of granting maintenance amount of ` 1,500/- p.m. to Alka and an amount of ` 500/- p.m. to minor child. Unfortunately, Alka did on 31.10.2006. 5 The appellant, being the father and natural guardian of the child, filed Misc. application under Section 25 of the Guardian and Wards Act for custody of the minor daughter Priya, who is residing with her grand father i.e. respondent herein at village Shire Saygaon, Tq. Gangapur, District Aurangabad. The appellant had averred in the said application fa763.11 -3- that the respondent grand-father has no source of income and they are not in a position to maintain his daughter and he is not eligible person to act as a guardian of child Priya. The said application was contested by the respondent grand-father. The learned District Judge, after considering the submissions and the evidence led by the parties, has dismissed the application with cost quantified at ` 2,000/- to be paid to the respondent. The learned District Judge, while rejecting the application has emphasized that the appellant was defaulter in making payment of maintenance amount. It is also considered by the learned District Judge that the minor female child is getting love of her maternal grand-father and grand-mother, therefore, the respondent is better guardian than the natural guardian father. Being aggrieved by the said order, this appeal is filed. 6 The learned counsel for the appellant has submitted that the appellant, in fact, has cleared some arrears in August, 2011 by depositing the amount of ` 25,000/- in the lower court. He argued that the learned District Judge has committed an error by giving undue importance to the fact of arrears of maintenance. He submitted that financial position of the respondent is not sound as compared to the appellant and in that situation, the child will not be brought up well in the said house. He argued that the maternal uncle of the child is married. However, the wife of the maternal uncle/ grand-daughter-in- law of the respondent has filed criminal proceeding under Section 498- fa763.11 -4- A of I.P.C. against the family members of the respondent herein. He submitted that said circumstances are not healthy for the child Priya to live and there is no good prospect for the child in the said house. The learned counsel therefore, submitted that the order passed by the learned District Judge be set aside and the custody of the child be handed over to the appellant. 7 Per contra, learned counsel for the respondent denied the contention of the appellant that entire amount of arrears towards maintenance upto August, 2011 is paid. He submitted that still an amount of ` 14,000/- is due and is to be paid by the appellant. He further submitted from this conduct of the appellant itself, it shows that the appellant is negligent, careless and is not bothering to pay the amount of maintenance for his daughter and on these grounds it can be held that the appellant is not fit person to whom the custody of the minor female child is to be handed over. It is submitted that the child is happy with the grand parents and therefore, according to him, there is no error committed by the learned District Judge in passing the impugned order. 8 Issues Findings i) Whether the custody of the minor female child Priya be handed over to the appellant or not? No. fa763.11 -5- 9 The non payment of arrears of maintenance amount is definitely a circumstances, which goes against the appellant, as it is the duty of the father to look after the basic needs and support financially to the child. However, the appellant has failed to do so. 10 Besides the non payment of arrears of maintenance amount, there are other factors, which are required to be considered while deciding the issue of custody of the minor female child. It is settled principle of law that the welfare of the child is a paramount consideration while deciding the issue of custody of the minor female child and to test the paramount consideration, it is necessary to consider all relevant aspects viz. Education of the child, physical and psychological comfort of the child, number of family members who are available to take care of the child, wish of the child etc. In the course of arguments, it is pointed out that the appellant is remarried and has set up his life with second wife. Not necessarily a second marriage is an adverse circumstance while handing over the custody of the child. The stepfather as well as the stepmother also can be good caretaker of the child therefore, the Court should not hold any bias towards the second marriage of the father or the mother. The real rest is whether the appellant, who claims custody has true love and affection for the child or not. 11 To verify all these aspects, child Priya is interviewed in the fa763.11 -6- chamber. In the presence of learned counsel for both the parties, the grand-mother and father of the child were also asked 3 to 4 questions. Priya told me that she does not remember her father. She never met her father. This fact is confirmed by grand mother. The appellant submitted that his wife Alka stayed with him till 2003. The child is born in the year 2000 and thus, nearly for 2 to 3 years she was with father i.e. the appellant herein. Thereafter he tried to meet his daughter, however, the respondent did not allow him to meet her. Thus the appellant father and daughter Priya have not met to each other since last 9 to 10 years. Though it is a right of the child to have access of the father and mother, there is no record to show that the appellant father ever made efforts to have an access to the child by initiating appropriate proceeding in the competent court. This shows that the appellant is not interested till now to meet the child. In contrast, the grand parents i.e. the respondent and his wife, who are aged persons, are looking after the child and the child who is found quite vocal, expressive and bold, informed the court that she is happy with her grand parents and wants to continue to stay with them. The appellant father though is first natural guardian, is unknown to the child. Under such circumstance, the custody of the child cannot be handed over to the appellant. 12 Moreover, the respondent and his wife are ready to look after the child. The maternal uncle of the child is also willing to look after the fa763.11 -7- child. The criminal proceedings, as stated above, filed against the respondent and his family members are not the circumstances having any bearing over the custody issue. Moreover, considering the age of the child Priya, who is 11 to 12 years old and considering her safety and security, I am of the view that the custody of minor female child Priya should be remained with the respondent father-in-law and it is not to be handed over to the appellant. The findings given by the learned District Judge is correct. The appeal stands dismissed. 13 The amount of ` 25,000/- towards the arrears of maintenance amount deposited by the appellant, is allowed to be withdrawn by the respondent. 14 Learned counsel for the appellant submitted that visiting right be given to the father. It is better for the appellant to apply to the trial Court for access, which is to be fairly considered by the trial court. 15 In view of dismissal of first appeal, civil application No. 5217 of 2011, seeking stay does not survive and the same stands disposed of accordingly. *****