Nandbai Mohan Dangale vs Mohan Thaku Dangale and Others

H.H. Kantharia, J.—This appeal arises from the judgment and order passed by the learned Third Extra Assistant Judge, Pune on 7th June, 1984 in Miscellaneous Civil Application No. 60 of 1984 partly allowing the appellant''s application for custody of her minor daughter Chandrakala and rejecting the same for the custody of minor son Vaibhav.

The relevant facts giving rise to the appeal are as under:

"The appellant is the second wife of the first respondent. The second respondent is said to be the mother of the first respondent and the third respondent is the first wife of the first respondent. The marriage between the appellant and the first respondent took place about eight years prior to making of the application in the year 1984. Thereafter they stayed as husband and wife at village Kadus Dangleshwar of Khed taluka in Pune District. During this time, the appellant gave birth to four children out of whom one died. Respondent No. 3 who is the first wife of the first respondent did not give birth to any child but in the month of June, 1983 she gave birth to a male child. It is the case of the appellant that thereafter the respondents started ill-treating her and her minor children and she was driven out of the house on 3rd January, 1984. Thereafter on 30th January, 1984 the appellant filed an application for custody of her minor children on the ground that she was the natural guardian and the welfare of the children would not be safe in the custody of the respondents. The said application was resisted by the first respondent on the ground that he was the father of the minors and as such the natural guardian. He denied that he had ill-treated his children and the appellant. According to him, the appellant had on her own left his house on 3rd January, 1984 and that too after setting fire to the cradle and fodder for which a police complaint was lodged against her. According to the first respondent, the appellant is mentally ill and the welfare of the children would not be safe in her custody and that she herself was unable to maintain herself as she had no source of income and would not be in a position to maintain the children if their custody was handed over to her. He contended that he was an agriculturist and as such, well to do and was in a position to take good care of the children. Respondent Nos. 2 and 3 did not contest the application. The appellant examined herself in the trial Court and relied upon documentary evidence in the nature of birth extracts of the minor children. The respondents remained absent and the matter proceeded ex-parte against them.

On consideration of the evidence adduced before him, the learned trial Judge came to the conclusion that during the pendency of the application admittedly one child by name Jitendra died and that the custody of daughter Chandrakala who was three years old should be handed over to the appellant and the custody of son Vaibhav who was five years old should be handed over to the first respondent. He passed orders accordingly by the impugned judgement and order. Hence this appeal.

Now, the record shows that after the appellant was driven out of the house or she left the matrimonial house of her own accord on 3rd January, 1984, the minor children had remained in the custody of the first respondent during which time son Jitendra had died on 30th January 1984. Therefore, all throughout till the custody of daughter Chandrakala was handed over to the appellant, the children had remained in the custody of the first respondent. The custody of Chandrakala who was three years old was correctly handed over to the appellant but so long as son Vaibhav was concerned he was at that times five years old and his natural guardian was naturally the first respondent. The learned trial Judge was also conscious of the fact that there was no evidence on the record that either the appellant or her father had sufficient source of income to maintain Vaibhav and, therefore, it was in the fitness of the things that his custody was retained with the first respondent. At any rat, I am of the opinion that Vaibhav has remained with the first respondents for thirteen year all throughout his life and it would not be in his interest and welfare that he should be now separated from the father and be handed over to the mother at this age. Thus, I find no merits in this appeal which deserves to be dismissed.

Appeal is accordingly dismissed but with no order as to costs.