1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.2696 OF 2009. Sudhir S/o Manohar Bedre and another ... Appellants. Versus Neminath S/o Nagnath Lungare and another ... Respondents. ... Mr.S.G.Dargad, advocate for the appellants. Mr.V.C.Solshe, advocate for the Respondents. ... CORAM : S.V.GANGAPURWALA,J. Date : 21.10.2010. PER COURT 1. The present appellants had filed an application for custody of the minor Rishikesh. The said application is rejected by the District Judge-2, Osmanabad. Aggrieved by the same, the appellants have filed the present appeal. 2 2. Mr.Dargad, learned counsel for the appellants strenuously contended that the appellant No.1 being the natural father would be the best guardian of 12 years old Rishikesh. Said Rishikesh is born to appellant No.1 from wedlock with deceased Vidhya, who died on 20.12.1999 i.e. just about one year and three months of the birth of Rishikesh. According to Mr.Dargad, learned counsel for the appellants, the appellant No.1 - father is highly educated, so also the appellant No.2 who is the step-mother is educated. There is atmosphere of academics in the family of the house of the appellants. As such they would be in a better position to look after education of Rishikesh, who is now 12 years of age. According to learned counsel, the rejection of earlier application for custody when Rishikesh was only two and half years of age would not come in the way for deciding the present application. As said minor Rishikesh, is grown up and would also require further higher education, it is only the appellant who would be in a position to provide for the same. The Respondents who are the grand parents are age old persons who would not be in a 3 position to look after Rishikesh. He further submitted that Rishikesh is now taking education in a Boarding School and residing in the hostel. If he is with the appellants, he would get the atmosphere of a house which will be more conducive for his up-bringing and education. Mr.Dargad, learned counsel further contended that the District Court has not considered all these aspects and has rejected the application. 3. Per contra, Mr.V.C.Solshe, learned counsel for the Respondents submitted that the Court has properly considered the evidence. Even in an earlier round, it was considered that the welfare of the child would be best met if the child is with the Respondents. According to Mr.Solshe, the appellant No.1 married with the appellant No.2 within three months of the death of the mother of Rishikesh and for all these years he never had inquired about the well-being of the minor. There is no circumstance brought on record to show that the Respondents are not maintaining the minor properly. Mr.Solshe, also further submitted that the appellant No.1 had 4 another son born from the wedlock with appellant No.2 and the appellant No.2 would be the step- mother. When the appellant No.2 has her own son then the minor may not be properly treated. 4. I have heard learned counsels for the respective parties at length and has also gone through the record and proceedings. 5. It is not disputed that the the present appellants had filed an application for custody of the minor Rishikesh earlier when the minor was two and half years of age. The said application was rejected upto High Court. 6. There is nothing on record to show that the care of the said minor is not being taken by the Respondents. For these 12 years, the minor is with the Respondents and naturally the Respondents would have affection towards the said minor. There is not a single instance brought on record to show that the said minor was not taken proper care by the Respondents or his education has been hampered or that the facilities for 5 education are not being provided by the Respondents. When there are no circumstances necessitating the removal of the custody of the said minor from the Respondents then in such circumstances, just because the appellant No.1 is a natural guardian, it would be inappropriate after a long span of 12 years to give the minor in custody of the appellants, more particularly, when appellant No.1 has married with the appellant No.2 and has a son from the said wedlock. For all these years, the appellants have not met the minor Rishikesh as is evident from the cross-examination of the appellant No.2. The appellants contend that they have not been allowed to meet Rishikesh in the School by the teacher. 7. In fact, this Court vide its order dated 14th October 2002, while rejecting the appeal filed by the appellant No.1 bearing F.A.No.724/2007 had made following observations in para 14 of the said judgment : "14. Hence, I direct the 6 Respondent Nos.1 and 2 to allow the applicant with his wife and son to see Rishikesh once in a month i.e. on every third Sunday. Similarly, the applicant and his wife are entitled to see the child on festival days, if they so desire. I, therefore, direct the Respondents that they shall not object the applicant when he came to see the child as directed above and also on Sunday and on festival days. The applicant and his wife shall see the child at village Dudhalwadi as aforesaid and the Respondents shall permit them to see Rishikesh." This Court has specifically directed the Respondents to allow the appellants to see Rishikesh once in a month on every third Sunday and also on festival days, if they so desire. There is nothing on record to suggest that the present appellants had been to the Respondents to meet Rishikesh. All these facts also go to show 7 that the appellants for all these years have not cared for the minor Rishikesh. 8. Mr.Dargad, learned counsel request that at least the appellants may be allowed to see Rishikesh once in a week. This High Court has already passed an order referred supra. The said order is still in force. The appellants if they so desire can seek Rishikesh, once in a month i.e. on every third Sunday. The directions given in para 14 in F.A.No.724/2002, referred supra are still in force and the appellants can have the benefits of the same, if they so desire. 9. The First Appeal accordingly is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/fa269609 8