Full Judgment Text
(Judgment) F.A. No. 1996 of 2018
(1)
with F.A. No. 1865 of 2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
First Appeal No. 1996 of 2018
District : Nanded
Dr. Ravishankar s/o. Dashrathrao
Navhat,
Age : 40 years, .. Appellant
Occupation : Medical Practitioner, (Original
R/o. Bhagyalaxmi Nagar, petitioner)
Basmat Road,
Parbhani, Taluka & Dist. Parbhani.
versus
Sow. Vaishali w/o. Ravishankar
Navhat,
Age : 36 years,
Occupation : Medical Practitioner, .. Respondent
Presently R/at (Original
C/o. Shri Nagorao Lokre, respondent)
In front of Pandurang Kirana
Stores, Ulhas Nagar,
Haribhau Dange Road,
Taroda Naka, Nanded.
...........
Mr. Ram B. Deshpande, Advocate, for the appellant.
Mr. Santosh C. Bhosle, Advocate, for the respondent.
...........
With
First Appeal No. 1865 of 2019
District : Nanded
Dr. Vaishali w/o. Ravishankar
Navhat,
C/o. Nagorao s/o. Honaji Lokre,
Age : 35 years,
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(Judgment) F.A. No. 1996 of 2018
(2)
with F.A. No. 1865 of 2019
Occupation : Medical Practitioner,
R/o. Ulhas Nagar, Malagaon Road, .. Appellant
Taluka & Dist. Nanded.
versus
Dr. Ravishankar Dashrathrao
Navhat,
Age : 42 years,
Occupation : Medical Practitioner, .. Respondent
R/o. Bhagyalaxmi Nagar,
Basmat Road, Parbhani,
Taluka & Dist. Parbhani.
...........
Mr. Santosh C. Bhosle, Advocate, for the appellant.
Mr. Ram B. Deshpande, Advocate, for the respondent.
...........
CORAM : SMT. VIBHA KANKANWADI, J.
Date of reserving
the judgment : 25th June 2019
Date of pronouncing
the judgment : 16th September 2019
JUDGMENT :
01. Both these appeals are arising between same
parties and they challenge the judgment and order
passed by the learned District Judge4, Nanded, in
Misc. Civil Application No. 49 of 2017, dated 1109
2017, thereby partly allowing the said application
filed by the appellant by granting visiting rights
during long holidays, vacation, covering more than
two weeks to the children; however, refusing to hand
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(Judgment) F.A. No. 1996 of 2018
(3)
with F.A. No. 1865 of 2019
over custody of the two minor children to him.
02. The facts leading to the appeals are that
the original applicant and respondent are husband and
wife. They got married on 06122007 as per Hindu
rites. Their marriage is still subsisting. They
have two children. At the time the application was
filed, elder son was aged 07 years; whereas younger
was 03 years old. The parties i.e. husband and wife
resided together at Parbhani and Mumbai. Husband is
M.B.B.S. and has Diploma in Child Health; whereas the
respondent is B.A.M.S. and she is also practicing as
Medical Officer. It is contended that till Diwali of
2015, the relationship was smooth. Respondent wife
went to Nanded along with children for Diwali
festival, which was her parental home, with a promise
that she would come within a week. However, when the
husband had talked with her, 5 6 days thereafter
and asked her to come back at Parbhani, she did not
speak properly. Thereafter, there was reluctance.
It was also told that the school of the elder son
would open; still she did not come and thereafter she
flatly refused to cohabit with him. When he tried to
meet them, the father of the respondent had refused
to allow them to meet. He had then sent a legal
notice dated 31052016 to her but she did not
respond to obey; however, false reply was given on
the ground that the husband is having illicit
relations with the wife of the younger brother of the
::: Uploaded on - 18/09/2019 ::: Downloaded on - 02/06/2024 02:24:48 :::
(Judgment) F.A. No. 1996 of 2018
(4)
with F.A. No. 1865 of 2019
petitioner. It was also alleged that the petitioner
was constantly asking divorce from her. It is stated
that father of respondent has no means of earning and
is dependent on rent amount. There is no other male
member of the respondent to look after the minor
children. It is, therefore, stated that the welfare
of the minor is in danger if they are allowed to
continue in the custody of respondent wife. He is
having residence at Parbhani and he is residing with
his parents. He himself is a paediatrician and knows
child psychology. The welfare of the minor would be
taken care of by him and on these grounds, he had
prayed for custody of the children.
03. The respondent filed reply at Exhibit 17 and
denied all the adverse allegations. It has been
stated that the husband is unnecessarily withholding
her certificates so also the documents of children
which are necessary for continuation of education of
the children at Nanded. She has stated that her
relations with husband were never cordial. The
behaviour of the petitioner since date of marriage
showed demonic nature. He used to pressurize her for
family gains. He had humiliated her ignoring her
qualification. He had no love and affection towards
children. She is taking proper care of the children.
She has initiated cases against the husband at Nanded
and therefore, he is pressurizing her by filing false
cases.
::: Uploaded on - 18/09/2019 ::: Downloaded on - 02/06/2024 02:24:48 :::
(Judgment) F.A. No. 1996 of 2018
(5)
with F.A. No. 1865 of 2019
04. It appears that the applicant as well as
respondent did not adduce any oral evidence but
relied upon the documents those were produced on
record. Therefore, taking into consideration those
documents and hearing both sides, the application was
partly allowed. The claim of the husband for custody
of the minor children was dismissed; however,
visiting rights were given to him by a detailed
order. Hence, present appeals. In the appeal filed
by the husband, he is challenging the refusal of his
prayer for custody; whereas the wife is challenging
the order passed regarding visiting rights.
05. Heard learned Advocate Mr. R.B. Deshpande
appearing for the husband in both the cases. Heard
learned Advocate Mr. S.C. Bhosle appearing for wife
in both the cases.
06. It has been vehemently submitted on behalf
of the husband, that the prayer for handing over
custody of the minor has been rejected only o the
ground that there is no proper person to look after
the children since the parents of the husband are
old. Further, it has been stated that the respondent
is also a medical practitioner, but the concerned
Court failed to see that the financial condition of
the husband is more sound than the wife. The point
as regards, welfare of the child has paramount
::: Uploaded on - 18/09/2019 ::: Downloaded on - 02/06/2024 02:24:48 :::
(Judgment) F.A. No. 1996 of 2018
(6)
with F.A. No. 1865 of 2019
consideration to decide the application, has not been
properly considered.
07. Per contra, learned Advocate appearing for
the wife supported the reasons given by the learned
District Judge for rejecting the custody of the child
and further submitted that the learned District Judge
failed to consider that the respondent is a dangerous
person and number of times he has given threats to
kill the wife and children. It is also stated that
the respondent's moral has gone down and he used to
keep watching blue films and used to have unnatural
intercourse, beating the wife in front of children.
Therefore, unnecessary technical order ought not to
have been passed.
08. Learned Advocate appearing for the husband
Mohan Kumar Rayana Vs. Komal
has relied on the decision in
Mohan Rayana wherein the Apex Court had
(AIR 2008 SC 471)
modified the interim order when the husband was
completely denied any access to minor children till
the report of psychiatrist was submitted.
09. Per contra, learned Advocate appearing for
the wife has relied on the decision in Lachhmanna
Irranna Shetpalliwar & others Vs. Anil Shriram Marsetwar (2017(5)
Bom.C.R. 818) , wherein it was held that the welfare of
minor children lies in continuing custody with
grandfather in whom they have faith, confidence and
::: Uploaded on - 18/09/2019 ::: Downloaded on - 02/06/2024 02:24:48 :::
(Judgment) F.A. No. 1996 of 2018
(7)
with F.A. No. 1865 of 2019
also love and affection. Further reliance has been
Nil Ratan Kundu & another Vs. Abhijit
placed on the decision in
Kundu (AIR 2009 (Supp.) SC 732) wherein it has been held
"Paramount consideration is welfare of child and the law on
that
this point is fairly well settled. In deciding a difficult and complex
question, a court of law should keep in mind relevant statutes and
the rights flowing therefrom. In certain cases which cannot be
decided by interpreting legal provisions, it is humane problem and
required to be solved with human touch. If minor is old enough to
form an intelligent preference or judgment, same must be
considered, as well."
10. At the outset, it is to be noted that both
the parties preferred not to give oral evidence and
only depended on documentary evidence filed by them.
It is not in dispute, that both are Doctors; one is
professing allopathy while another is Ayurvedic
Doctor. A legal aspect cannot be given a goby that
while considering such kind of applications, welfare
of the child / children should be paramount
consideration. The point which was argued before the
learned District Judge on behalf of the respondent
itself appears to be starting with a negative point.
It appears that it was argued (It is also so
supported from the contents of his application) that
the three ladies in the house of respondent's mother
are committing atrocities on his sons and it is sure
that there is negative impact on delicate mind of his
::: Uploaded on - 18/09/2019 ::: Downloaded on - 02/06/2024 02:24:48 :::
(Judgment) F.A. No. 1996 of 2018
(8)
with F.A. No. 1865 of 2019
sons. In fact, there was absolutely no evidence
adduced by the husband to show that the three ladies
were giving negative impact to the children. How a
matter can give negative impact on the sons is a
question and unless any cogent evidence is adduced,
no substance can be found in such kind of
allegations. Further, it appears that the point
which was argued that there was no male member in the
family of parents of respondent to look after the
activities of minor except old father of the
respondent and it was specifically pointed out that
the brother of the respondent is on cross terms with
her parents and sister. It appears that the husband
wanted to just paint negative picture of the wife.
So also, he wanted specific impress about the male
dominance which is absolutely not expected from a
medical practitioner. If we have to consider the
situation at his house, except old parents, there is
nobody else in his family. Therefore, he cannot be
said to be on much better footing than the
respondent.
11. The respondent wife has produced on record
the first information report lodged by her. It
appears that the first information report which she
has lodged, is for the offence under Section 498A,
294, 323, 504, 506, 377, 497, 109 read with Section
34 of the Indian Penal Code. No doubt, the
relationship between husband and wife are strained.
::: Uploaded on - 18/09/2019 ::: Downloaded on - 02/06/2024 02:24:48 :::
(Judgment) F.A. No. 1996 of 2018
(9)
with F.A. No. 1865 of 2019
Taking into consideration the age of the childr4en,
especially the second child, the mother was the
natural guardian since he was less than 5 years old.
When the wife has undertaken that she would look
after the children properly, so also, she is the
mother, definitely she would look after them
properly. The decision taken by the learned District
Judge appears to be correct.
12. As regards the visiting rights granted to
the applicant are concerned, it appears that the
appeal filed by the wife contains exaggerations. She
cannot go to the extent and say that the behaviour of
the father with the children would be dangerous. She
has not entered the witness box to prove the same and
only on the basis of copy of the first information
report, such conclusion cannot be drawn. Therefore,
even the order passed by the learned District Judge,
giving visiting rights to the husband deserves to be
upheld.
13. There is absolutely no merit in both the
appeals and therefore, they deserve to be dismissed;
hence, they are accordingly dismissed. There shall
be no order as to costs.
( Smt. Vibha Kankanwadi )
JUDGE
...........
puranik / resFA1996.18etc
::: Uploaded on - 18/09/2019 ::: Downloaded on - 02/06/2024 02:24:48 :::
(1)
with F.A. No. 1865 of 2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
First Appeal No. 1996 of 2018
District : Nanded
Dr. Ravishankar s/o. Dashrathrao
Navhat,
Age : 40 years, .. Appellant
Occupation : Medical Practitioner, (Original
R/o. Bhagyalaxmi Nagar, petitioner)
Basmat Road,
Parbhani, Taluka & Dist. Parbhani.
versus
Sow. Vaishali w/o. Ravishankar
Navhat,
Age : 36 years,
Occupation : Medical Practitioner, .. Respondent
Presently R/at (Original
C/o. Shri Nagorao Lokre, respondent)
In front of Pandurang Kirana
Stores, Ulhas Nagar,
Haribhau Dange Road,
Taroda Naka, Nanded.
...........
Mr. Ram B. Deshpande, Advocate, for the appellant.
Mr. Santosh C. Bhosle, Advocate, for the respondent.
...........
With
First Appeal No. 1865 of 2019
District : Nanded
Dr. Vaishali w/o. Ravishankar
Navhat,
C/o. Nagorao s/o. Honaji Lokre,
Age : 35 years,
::: Uploaded on - 18/09/2019 ::: Downloaded on - 02/06/2024 02:24:48 :::
(Judgment) F.A. No. 1996 of 2018
(2)
with F.A. No. 1865 of 2019
Occupation : Medical Practitioner,
R/o. Ulhas Nagar, Malagaon Road, .. Appellant
Taluka & Dist. Nanded.
versus
Dr. Ravishankar Dashrathrao
Navhat,
Age : 42 years,
Occupation : Medical Practitioner, .. Respondent
R/o. Bhagyalaxmi Nagar,
Basmat Road, Parbhani,
Taluka & Dist. Parbhani.
...........
Mr. Santosh C. Bhosle, Advocate, for the appellant.
Mr. Ram B. Deshpande, Advocate, for the respondent.
...........
CORAM : SMT. VIBHA KANKANWADI, J.
Date of reserving
the judgment : 25th June 2019
Date of pronouncing
the judgment : 16th September 2019
JUDGMENT :
01. Both these appeals are arising between same
parties and they challenge the judgment and order
passed by the learned District Judge4, Nanded, in
Misc. Civil Application No. 49 of 2017, dated 1109
2017, thereby partly allowing the said application
filed by the appellant by granting visiting rights
during long holidays, vacation, covering more than
two weeks to the children; however, refusing to hand
::: Uploaded on - 18/09/2019 ::: Downloaded on - 02/06/2024 02:24:48 :::
(Judgment) F.A. No. 1996 of 2018
(3)
with F.A. No. 1865 of 2019
over custody of the two minor children to him.
02. The facts leading to the appeals are that
the original applicant and respondent are husband and
wife. They got married on 06122007 as per Hindu
rites. Their marriage is still subsisting. They
have two children. At the time the application was
filed, elder son was aged 07 years; whereas younger
was 03 years old. The parties i.e. husband and wife
resided together at Parbhani and Mumbai. Husband is
M.B.B.S. and has Diploma in Child Health; whereas the
respondent is B.A.M.S. and she is also practicing as
Medical Officer. It is contended that till Diwali of
2015, the relationship was smooth. Respondent wife
went to Nanded along with children for Diwali
festival, which was her parental home, with a promise
that she would come within a week. However, when the
husband had talked with her, 5 6 days thereafter
and asked her to come back at Parbhani, she did not
speak properly. Thereafter, there was reluctance.
It was also told that the school of the elder son
would open; still she did not come and thereafter she
flatly refused to cohabit with him. When he tried to
meet them, the father of the respondent had refused
to allow them to meet. He had then sent a legal
notice dated 31052016 to her but she did not
respond to obey; however, false reply was given on
the ground that the husband is having illicit
relations with the wife of the younger brother of the
::: Uploaded on - 18/09/2019 ::: Downloaded on - 02/06/2024 02:24:48 :::
(Judgment) F.A. No. 1996 of 2018
(4)
with F.A. No. 1865 of 2019
petitioner. It was also alleged that the petitioner
was constantly asking divorce from her. It is stated
that father of respondent has no means of earning and
is dependent on rent amount. There is no other male
member of the respondent to look after the minor
children. It is, therefore, stated that the welfare
of the minor is in danger if they are allowed to
continue in the custody of respondent wife. He is
having residence at Parbhani and he is residing with
his parents. He himself is a paediatrician and knows
child psychology. The welfare of the minor would be
taken care of by him and on these grounds, he had
prayed for custody of the children.
03. The respondent filed reply at Exhibit 17 and
denied all the adverse allegations. It has been
stated that the husband is unnecessarily withholding
her certificates so also the documents of children
which are necessary for continuation of education of
the children at Nanded. She has stated that her
relations with husband were never cordial. The
behaviour of the petitioner since date of marriage
showed demonic nature. He used to pressurize her for
family gains. He had humiliated her ignoring her
qualification. He had no love and affection towards
children. She is taking proper care of the children.
She has initiated cases against the husband at Nanded
and therefore, he is pressurizing her by filing false
cases.
::: Uploaded on - 18/09/2019 ::: Downloaded on - 02/06/2024 02:24:48 :::
(Judgment) F.A. No. 1996 of 2018
(5)
with F.A. No. 1865 of 2019
04. It appears that the applicant as well as
respondent did not adduce any oral evidence but
relied upon the documents those were produced on
record. Therefore, taking into consideration those
documents and hearing both sides, the application was
partly allowed. The claim of the husband for custody
of the minor children was dismissed; however,
visiting rights were given to him by a detailed
order. Hence, present appeals. In the appeal filed
by the husband, he is challenging the refusal of his
prayer for custody; whereas the wife is challenging
the order passed regarding visiting rights.
05. Heard learned Advocate Mr. R.B. Deshpande
appearing for the husband in both the cases. Heard
learned Advocate Mr. S.C. Bhosle appearing for wife
in both the cases.
06. It has been vehemently submitted on behalf
of the husband, that the prayer for handing over
custody of the minor has been rejected only o the
ground that there is no proper person to look after
the children since the parents of the husband are
old. Further, it has been stated that the respondent
is also a medical practitioner, but the concerned
Court failed to see that the financial condition of
the husband is more sound than the wife. The point
as regards, welfare of the child has paramount
::: Uploaded on - 18/09/2019 ::: Downloaded on - 02/06/2024 02:24:48 :::
(Judgment) F.A. No. 1996 of 2018
(6)
with F.A. No. 1865 of 2019
consideration to decide the application, has not been
properly considered.
07. Per contra, learned Advocate appearing for
the wife supported the reasons given by the learned
District Judge for rejecting the custody of the child
and further submitted that the learned District Judge
failed to consider that the respondent is a dangerous
person and number of times he has given threats to
kill the wife and children. It is also stated that
the respondent's moral has gone down and he used to
keep watching blue films and used to have unnatural
intercourse, beating the wife in front of children.
Therefore, unnecessary technical order ought not to
have been passed.
08. Learned Advocate appearing for the husband
Mohan Kumar Rayana Vs. Komal
has relied on the decision in
Mohan Rayana wherein the Apex Court had
(AIR 2008 SC 471)
modified the interim order when the husband was
completely denied any access to minor children till
the report of psychiatrist was submitted.
09. Per contra, learned Advocate appearing for
the wife has relied on the decision in Lachhmanna
Irranna Shetpalliwar & others Vs. Anil Shriram Marsetwar (2017(5)
Bom.C.R. 818) , wherein it was held that the welfare of
minor children lies in continuing custody with
grandfather in whom they have faith, confidence and
::: Uploaded on - 18/09/2019 ::: Downloaded on - 02/06/2024 02:24:48 :::
(Judgment) F.A. No. 1996 of 2018
(7)
with F.A. No. 1865 of 2019
also love and affection. Further reliance has been
Nil Ratan Kundu & another Vs. Abhijit
placed on the decision in
Kundu (AIR 2009 (Supp.) SC 732) wherein it has been held
"Paramount consideration is welfare of child and the law on
that
this point is fairly well settled. In deciding a difficult and complex
question, a court of law should keep in mind relevant statutes and
the rights flowing therefrom. In certain cases which cannot be
decided by interpreting legal provisions, it is humane problem and
required to be solved with human touch. If minor is old enough to
form an intelligent preference or judgment, same must be
considered, as well."
10. At the outset, it is to be noted that both
the parties preferred not to give oral evidence and
only depended on documentary evidence filed by them.
It is not in dispute, that both are Doctors; one is
professing allopathy while another is Ayurvedic
Doctor. A legal aspect cannot be given a goby that
while considering such kind of applications, welfare
of the child / children should be paramount
consideration. The point which was argued before the
learned District Judge on behalf of the respondent
itself appears to be starting with a negative point.
It appears that it was argued (It is also so
supported from the contents of his application) that
the three ladies in the house of respondent's mother
are committing atrocities on his sons and it is sure
that there is negative impact on delicate mind of his
::: Uploaded on - 18/09/2019 ::: Downloaded on - 02/06/2024 02:24:48 :::
(Judgment) F.A. No. 1996 of 2018
(8)
with F.A. No. 1865 of 2019
sons. In fact, there was absolutely no evidence
adduced by the husband to show that the three ladies
were giving negative impact to the children. How a
matter can give negative impact on the sons is a
question and unless any cogent evidence is adduced,
no substance can be found in such kind of
allegations. Further, it appears that the point
which was argued that there was no male member in the
family of parents of respondent to look after the
activities of minor except old father of the
respondent and it was specifically pointed out that
the brother of the respondent is on cross terms with
her parents and sister. It appears that the husband
wanted to just paint negative picture of the wife.
So also, he wanted specific impress about the male
dominance which is absolutely not expected from a
medical practitioner. If we have to consider the
situation at his house, except old parents, there is
nobody else in his family. Therefore, he cannot be
said to be on much better footing than the
respondent.
11. The respondent wife has produced on record
the first information report lodged by her. It
appears that the first information report which she
has lodged, is for the offence under Section 498A,
294, 323, 504, 506, 377, 497, 109 read with Section
34 of the Indian Penal Code. No doubt, the
relationship between husband and wife are strained.
::: Uploaded on - 18/09/2019 ::: Downloaded on - 02/06/2024 02:24:48 :::
(Judgment) F.A. No. 1996 of 2018
(9)
with F.A. No. 1865 of 2019
Taking into consideration the age of the childr4en,
especially the second child, the mother was the
natural guardian since he was less than 5 years old.
When the wife has undertaken that she would look
after the children properly, so also, she is the
mother, definitely she would look after them
properly. The decision taken by the learned District
Judge appears to be correct.
12. As regards the visiting rights granted to
the applicant are concerned, it appears that the
appeal filed by the wife contains exaggerations. She
cannot go to the extent and say that the behaviour of
the father with the children would be dangerous. She
has not entered the witness box to prove the same and
only on the basis of copy of the first information
report, such conclusion cannot be drawn. Therefore,
even the order passed by the learned District Judge,
giving visiting rights to the husband deserves to be
upheld.
13. There is absolutely no merit in both the
appeals and therefore, they deserve to be dismissed;
hence, they are accordingly dismissed. There shall
be no order as to costs.
( Smt. Vibha Kankanwadi )
JUDGE
...........
puranik / resFA1996.18etc
::: Uploaded on - 18/09/2019 ::: Downloaded on - 02/06/2024 02:24:48 :::