Pravin vs Alka

V.A. Naik, J.—By this Appeal, the appellant challenges the judgment of the Family Court, dated 29.8.2013, dismissing the Petition filed by the appellant, under Section 6 of the Guardian and Wards Act, 1890 (hereinafter referred to as "the Act of 1890" for the sake of brevity).

Few facts giving rise to the Appeal are stated thus :

"The appellant was married to the respondent on 19.6.2005, at Amravati. A girl child by name "Bhumika" was born from the wedlock on 23.3.2006. The marriage between the parties was dissolved by a decree of divorce. The appellant/ husband filed the Petition under Section 6 of the Act of 1890 for the custody of Bhumika, who was then six-years and four-months of age. According to the appellant, Bhumika was residing with the respondent in the quarters at Ravinagar when the Petition was filed. The respondent was working in the Geological Department as a Survey Informer and the Office of the respondent was situated at Shivajinagar, Nagpur. It was pleaded by the appellant that the appellant was residing with his mother-Jijabai and his two cousin brothers, namely, Mukund and Bablu, in a joint family along with the wives and children of Mukund and Bablu. It was pleaded by the appellant that the condition of the appellant''s house is much better than the condition of the house in which the respondent is residing with Bhumika. The appellant claimed that he is working as a teacher in Nagar Parishad High School and Junior College, Katol, on a post of Assistant Teacher and he has a specialization in the subject of Child Development. It was pleaded that the atmosphere in the house of the appellant was better than the atmosphere in the house of the respondent for educating Bhumika. It was pleaded that Bhumika would be more comfortable in the house of the appellant than in the house of the respondent as in the house of respondent there was no one to look after Bhumika after she returned home from the School. It was pleaded that Bhumika was kept in creche after her school hours. It was also pleaded that the respondent returns from her duties to her Ravinagar residence after 6:30 p.m. and, hence, Bhumika is all alone in the house after she returns from the School after 1.30 p.m. It was pleaded that the appellant had purchased some insurance policies and invested a substantial amount for the future of Bhumika. In the aforesaid set of facts, the appellant sought the custody of Bhumika."

The respondent filed the written statement and denied the claim of the appellant for custody of Bhumika. It was pleaded in the written statement that Bhumika had already lost the major part of her childhood due to quarrelsome nature of the appellant. It was pleaded that Bhumika felt very unsecure and unsafe with the appellant. It was pleaded that Bhumika was only six-and-a-half years of age and being a female child, required attention of her mother. It was pleaded that the appellant is a habitual drunkard and, every evening, he sits in the Liquor Bar till late at night. It is pleaded that the appellant is not a reliable person as he had illegally taken Bhumika to his sister''s house in Dixitnagar when the Court had permitted the access to the appellant. It was pleaded that the education of Bhumika was more important than the disputes between the husband and wife. It was pleaded that Bhumika was very scared of the appellant and it was unsafe for Bhumika to live in the company of the appellant. It was pleaded that the mother of the respondent was residing with her and she looked after Bhumika after she returned from the school, till the respondent returned home from her service. By levelling certain other allegations against the appellant which are not relevant for the purpose of deciding the issue of custody, the respondent sought for the dismissal of the petition.

On the aforesaid pleadings of the parties, the Family Court framed the issues. The parties tendered the evidence and, on an appreciation of the same, by the judgment dated 29th August 2013, the Family Court dismissed the petition filed by the appellant, under Section 6 of the Act of 1890.

Shri P.J. Mehta, the learned counsel for the appellant submitted that the Family Court was not justified in dismissing the Petition filed by the appellant for the custody of his minor daughter. It is stated that as per the revised Schedule-time table, the appellant is required to perform his duties as a Teacher in the school at Katol only between 7.10 p.m. and 11.35 a.m. It is stated that only one hour is required for travelling from Nagpur to Katol and for returning from Katol to Nagpur. It is stated that the appellant would be in a position to stay with Bhumika in his residential house at Nagpur, after Bhumika returned from her school in the afternoon. It is stated that there is no one to look after Bhumika in the quarters where the respondent resides with Bhumika, till the respondent returns from her service after 6.00 p.m. It is stated that the Family Court erroneously recorded that the mother of the respondent could look after Bhumika after she returns from School, without considering the admissions of the mother of the respondent in cross-examination. It is stated that the appellant had not forcibly taken Bhumika to the house of his sister in Dixitnagar, as observed by the Family Court. It is submitted that the appellant being a Teacher by profession, would be in a better position to impart education to Bhumika. It is stated that the salary of the appellant is more than the salary of the respondent and hence the custody of the minor daughter should have been granted to the appellant. It is stated that it is wrongly recorded in the judgment that the Judge, Family Court had interviewed Bhumika and had asked her about her willingness to reside with either of the parents. It is stated that Bhumika was not interviewed by the Family Court at all and the statement in that regard, is incorrect. To substantiate the submissions made on behalf of the appellant and to seek the custody of Bhumika, the learned counsel for the appellant relied on the judgments reported in Sheila B. Das Vs. P.R. Sugasree, AIR 2006 SC 1343 : (2006) 1 DMC 343 : (2006) 2 JT 482 : (2006) 2 SCALE 388 : (2006) 3 SCC 62 : (2006) AIRSCW 965 : (2006) 2 Supreme 169 ; Shaleen Kabra Vs. Shiwani Kabra, AIR 2012 SC 2467 : (2012) 5 SCALE 193 : (2012) 5 SCC 355 : (2012) AIRSCW 3219 ; Mausami Moitra Ganguli Vs. Jayant Ganguli, AIR 2008 SC 2262 : (2008) 3 CLT 679 : (2008) 6 JT 634 : (2009) 153 PLR 506 : (2008) 8 SCALE 527 : (2008) 7 SCC 673 : (2008) AIRSCW 4043 ; and, 1990 (2) Mh.L.R. Page 49: Hailaja Jayant Erram v. jayant Erram.

Mr. A.A. Sambaray, the learned counsel for the respondent, supported the order of the Family Court and submitted that the Family Court has rightly appreciated the evidence tendered by the parties to hold that the welfare of Bhumika was in retention of her custody with the respondent. It is stated that the mother of the respondent resides with the respondent in the quarters in Ravinagar and she looks after Bhumika when the respondent is away for her duties, during the afternoon hours. It is stated that when the Family Court had permitted the appellant to celebrate the birthday of Bhumika in the office of the Advocate, the appellant forcibly removed Bhumika from the Office of the counsel and celebrated her birthday in his own house. It is stated that on yet another occasion, Bhumika was found by the police in the house of the sister of the appellant in Dixitnagar, when the Court had asked the appellant to hand over the custody of Bhumika to the respondent. It is stated that Bhumika was interviewed by the Family Court in the chamber and the Court enquired about the wishes of Bhumika and her desire to stay with either of the parents. It is stated that the statement made by the learned counsel for the appellant that Bhumika was not interviewed by the Family Court is false. It is stated that the respondent earns a substantial amount towards salary and Bhumika, being a minor daughter, the custody of Bhumika was rightly retained with the respondent. It is stated that the Family Court has considered the judgments of the Hon''ble Supreme Court and the High Courts to hold that the custody of a female child should be allowed to remain with her mother so that she could be looked after properly. It is stated that the case of the appellant that he resides in a joint family along with his mother and two cousin brothers and their families, is falsified by the evidence of the wife of his cousin brother. It is stated that the relevant evidence has rightly been considered by the Family Court to deny the custody of Bhumika to the appellant.

On hearing the learned counsel for the parties and on a perusal of the record and proceedings, it appears that the following points arise for determination in this Appeal?

1) Whether the appellant is entitled for the custody of his daughter- Bhumika?

2) What order?"

To answer the aforesaid points for determination, it would be necessary to consider the evidence tendered by the parties. The appellant had examined himself and had also examined his mother Jijabai. The appellant had examined Indu Sheware, his sister-in-law. The respondent had examined herself and had examined her mother. The parties also tendered some documents to prove their respective cases.

The appellant reiterated the facts pleaded by him in his petition under Section 6 of the Act of 1890, in his evidence in examination-in-chief. He stated that he is a Teacher by profession and teaches in Nagar Parishad High School in Katol. He stated that his financial condition is good. It was stated that the respondent resides in a quarters in Ravinagar, whereas her office is situated at Shivajinagar. It was stated that the house of the appellant comprised of seven rooms and he was residing in the same along with his mother Jijabai and his two cousin brothers-Mukund and Bablu and their wives and four children. It was stated that the atmosphere in the house of the appellant was more conducive and compatible for the education of Bhumika. It was stated that for the whole day Bhumika was living alone in the Government quarters at the mercy of God. It was stated that his family members could look after Bhumika properly after her return from the School, however there is no one to look after Bhumika in the house of the respondent as all the family members from the paternal side of the respondent reside at Amravati. He had admitted in his cross-examination that Katol is at a distance of about 54 kms. from Nagpur and he has to go to School either by train or Bus. He admitted that according to the Government policy, a teacher is required to stay at the headquarters. On a query made by the Court, the respondent admitted that the expenses of Bhumika were borne by the respondent as the respondent had not permitted the appellant to pay the said expenses. He, however, admitted that he had never sent any money for Bhumika by money-order. He denied the suggestion that he stayed all alone in his house, was addicted to liquor and returns home under the influence of the same. He also denied the suggestion that without the permission of the Court, he had taken his daughter-Bhumika to the house of his sister at Dixitnagar. It was, however, admitted that the police had come to fetch Bhumika, in view of the orders of the Family Court. He denied the suggestion that he went to the quarters of the respondent and abused her. The respondent stated that he was not aware that the employees working in the office of the respondent had filed a complaint that the appellant had abused the respondent. He admitted that the respondent had filed a complaint against him in respect of the incident in the Police Station at Pratapnagar and Ambazari. He admitted that as per the directions of the Family Court, the birthday of Bhumika was to be celebrated in the Office of the Advocate, but he denied the suggestion that he had forcibly removed Bhumika from the Office of the Advocate after abusing the people present in the Office. He admitted in regard to the filing of the case by Mr. Redekar against him and the respondent for specific performance of contract. He admitted that he had mentioned the age of the father of the respondent as 75 in the petition and 82 in his evidence-on-affidavit. He denied the suggestion that he tried to hurt or kill the respondent by the Maruti Swift Car possessed by him. He admitted that he has secured bail in respect of the offence registered against him, under Section 506, 509 of the Indian Penal Code. He admitted that the respondent and Bhumika, both resided at Nagpur. He denied the suggestion that in the consent terms the custody of Bhumika was to remain with the respondent only. He, however, admitted that on 1.12.2011 he had signed the consent terms before the Marriage Counsellor.

In support of the evidence tendered by the appellant, his mother Jijabai stated in her evidence that she could look after Bhumika in the joint family house of the appellant as she is hale and hearty. It is stated that Bhumika has great love and affection for her, she is ready to look after Bhumika and the custody of Bhumika may be handed over to her son i.e. the appellant. Jijabai admitted in her cross-examination that she is a kidney-patient and was admitted in a Hospital at Dhantoli. She further admitted that the police had been to Dixitnagar to the residence of her daughter to remove Bhumika from Dixitnagar. She denied the suggestion that the appellant was consuming liquor. She stated that she had no knowledge whether there were police cases against the appellant. The evidence of the third witness, on behalf of the appellant, Sau. Indu Sheware, the wife of the cousin brother of the appellant, was examined to substantiate the case of the appellant that he was living in a joint family which comprised of nearly ten members. Sau. Indu Sheware, stated in her evidence that Bhumika always came to her house and had her food and played with her children. Sau. Indu admitted in her cross-examination that the appellant is her distant relative and she does not reside in the joint family with the appellant. She admitted that the family of the appellant and her family are separate in food and residence. She admitted that her house has a tin shed and the house of the appellant has RCC construction. She admitted that the wife of the real brother of the appellant was living separately for more than 14-years and their children are residing with her. She denied the suggestion that she was present in the second marriage of the appellant. She stated that she was not aware whether the appellant is addicted to drinking liquor.

In defence, the respondent examined herself. She reiterated the facts pleaded in her written statement in her examination-in-chief. She stated that she resided in Government quarters in Ravinagar and her mother was also residing with her. She stated that the appellant was addicted to liquor and he sat in the liquor Bar till late at night. She stated that the appellant ran away with Bhumika and kept her at his sister''s house at Dixitnagar, by willfully disobeying the orders of the Family Court. It was stated that she rescued Bhumika from Dixitnagar, when the condition of Bhumika was a very bad. It was stated that Bhumika had lost some of her best days of her childhood due to the cantankerous nature of the appellant. She stated that Bhumika felt very much disturbed and unsafe in the company of the appellant. She stated that the appellant does not have any attachment for his daughter and the petition for custody of Bhumika was filed with a view to harass her. The respondent was cross-examined at length. She was mostly cross-examined in regard to the members in her family in Amravati. The cross-examination, in that respect, would have no relevance or bearing in the matter of custody of Bhumika,. The respondent denied the suggestion that from the date of marriage till 2013, she was helping her relatives by providing money. She admitted that her office timings were from 10.30 a.m. to 5.45 p.m. and the timing of school of Bhumika was from 8.00 a.m. to 12.00 noon. She stated in her cross-examination that though the appellant was permitted the access of Bhumika, he forcibly removed Bhumika and illegally kept her in his custody for about 4 to 5 days. She admitted in her cross-examination that the school of Bhumika was over at 1.30 p.m. and she used to come home at 2.00 p.m. She stated in her cross-examination that she went home in her lunch break at about 1.30 p.m. to receive Bhumika. She stated that if it was not possible for her to receive Bhumika in the afternoon, her mother used to take Bhumika to the quarters after her school hours. The respondent denied the suggestion that Bhumika was kept in a creche in the afternoon. She denied the suggestion that on 23.6.2013 she had specifically broken the front portion of the car of the appellant. She stated that as per the order of the Family Court though the appellant is required to pay a sum of Rs. 2,000/- for Bhumika, the appellant paid the amount only intermittently. She admitted that her salary is Rs. 20,000/- to Rs. 22,000/-. She denied that several people were dependent on her salary. She denied the suggestion that the appellant had presented some frocks and sweets to Bhumika and she had thrown them out of the house. She admitted that her daughter was at her command. She, however, denied that if Bhumika refused to obey her orders, she used to beat her. She also denied that she gave a sound beating to Bhumika whenever she met her father. She stated that the appellant requires at least two hours to reach the school in Katol from Nagpur. She stated that the day on which she was examined, Bhumika had attended the school. She denied the suggestion that she had dropped Bhumika in a creche as she was required to attend the Court for tendering evidence. She admitted that the appellant gets more salary than her as his salary is Rs. 24,000/-; whereas her salary was Rs. 20,000/-.

The mother of the respondent, by name-Suman Khedkar, was examined. She stated in her evidence that her husband-Namdeo was no more. She stated that she used to reside in the house of Namdeo on the first floor, whereas Namdeo and his first wife, were residing on the ground floor. In her cross-examination, Suman denied the suggestion that she had come to Nagpur only five days earlier, by a private bus. She stated that she was residing at Armavati, as an owner. She however added and stated that she is residing at Nagpur.

On a reading of the aforesaid evidence, we find that the Family Court rightly came to a conclusion that the appellant was not entitled to the custody of Bhumika. The Family Court found, on a proper appreciation of the material on record, that the case of the appellant that he was residing in his house at Nagpur in a joint family comprising of nearly ten members, was not correct. The case of the appellant in that regard was falsified by the evidence of Sau. Indu Sheware, the wife of Bablu, the cousin brother of the appellant. The appellant had pleaded in the Petition and had also stated in his evidence that he was residing in a joint family along with his mother and his two cousin brothers (Mukund and Bablu) and their respective family members. Sau. Indu, wife of Bablu, however, clearly admitted in her cross-examination that the appellant is her distant relative and the families of the appellant and Bablu are separate in food and residence. Sau. Indu admitted that her house has a roof of tin; whereas the house of the appellant has RCC construction. She admitted that her financial position is weak and further admitted that the wife of the real brother of the appellant namely Ravindra, was residing separately since more than 14-years. The case of the appellant that he resides in a joint family comprising of himself, his mother and his two cousin brothers Mukund and Bablu stands shattered by the evidence of Sau. Indu, in her cross-examination. The Family Court, therefore, rightly considered the evidence of Sau. Indu to hold that the case of the appellant that he was residing in a big joint family, was incorrect. We find that one of the main reasons for seeking the custody of Bhumika i.e. that the appellant resides in a very large joint family, the members of which can look after Bhumika properly, falls to the ground, in view of the evidence of Sau. Indubai in her cross-examination. We also find a lot of contradiction in the pleadings in the Petition and the oral evidence tendered by the appellant. The Family Court considered the evidence of Sau. Indu in her cross-examination, so also the evidence of Jijabai in her cross-examination, wherein she admitted that she is a kidney-patient. The Family Court found on an overall view of the evidence tendered by the parties, that the appellant was residing along with his mother in the house at Nagpur and the mother of the appellant, being a kidney-patient could not have properly looked after Bhumika. In contra-distinction, the Family Court considered that the respondent went to her quarters everyday at 2.00 p.m. in the lunch break to fetch Bhumika from the school to the quarters at Ravinagar. The Family Court considered that in case of difficulty, the mother of the respondent would receive Bhumika from the school. The Family Court found that the appellant had not substantiated his case that the respondent kept Bhumika in a creche when she was not in the house and away on duty in the afternoon. The Family Court rightly held that the appellant was a teacher and was competent to give education to Bhumika, but the respondent was also not less competent than him. The Family Court found that the respondent was also an educated lady working with the Geology and Mining Department as a Survey Informer. The Family Court found that the appellant had a Diploma in Education and Child Development and the respondent was also a Diploma holder. Considering the fact that the custody of a female child should ordinarily be allowed to remain with the mother as she could be better looked after by the mother, the Family Court was rightly of the opinion that the appellant was not entitled to the custody of Bhumika. While holding so, the Family Court gave due weightage to the fact that the respondent was working at a place near her quarters in Nagpur and the appellant was working at Katol, which is about 54 kms. from Nagpur. Apart from the aforesaid evidence, the Family Court also interviewed Bhumika in the chamber. The Family Court ascertained the wishes of Bhumika and observed in the judgment that Bhumika was not ready to go with her father i.e. the appellant. The Family Court had ascertained about the progress of Bhumika from Kendriya Vidyalaya, Nagpur and had found from the report of the school authority that she was doing well in the studies. When admittedly, Bhumika was placed in the custody of the respondent more than a couple of years before the petition was filed, the Family Court found that there was no reason for shifting Bhumika from the custody of the respondent to the custody of the appellant. According to the Family Court, the welfare of Bhumika was in retaining her custody with the respondent. Much has been argued by the learned counsel for the appellant that Bhumika was not interviewed by the Judge, Family Court and the statement made in that regard in the judgment, is incorrect. We do not appreciate the submission made on behalf of the appellant as it unnecessarily casts aspersions on the Judge of the Family Court. The submission made by the learned counsel for the appellant is falsified by the order of the Family Court, on Exh. 1 dated 28.8.2013, wherein the Family Court has observed about the interview with Bhumika, in the chamber on the same day. The Family Court has observed that Bhumika appeared to be intelligent. It is well-settled that the record of the Court is sacrosanct and the same cannot be assailed. We also do not find that the appellant has raised this grounds in the First Appeal. Even assuming that it is so raised, we would not have permitted the appellant to argue the same when the appellant had not filed any affidavit in the Family Court immediately after the judgment was tendered in regard to the incorrect observations in the judgment or the incorrect order dated 28.8.2013. Even otherwise, as stated herein-above, we find, on the perusal of the record that Bhumika was interviewed by the Family Court on 28.8.2013 as clearly recorded in the order, on Exh.1.

Also, much has been said about the falsity in the claim of the respondent that her mother resides with her in the quarters in Ravinagar. For substantiating the case that the mother of the respondent does not reside with her, the counsel for the appellant had relied on the evidence of the mother of the respondent-Suman. The evidence in the examination-in-chief of Suman is not correctly read by the counsel for the appellant. While stating that Namdeo, her husband, was no more, she had stated in her examination-in-chief that Namdeo and his first wife are residing on the ground floor and, herself and her son Rahul are residing on the first floor. Though the evidence in her examination-in-chief is recorded in present tense, it has to be read in the past tense as it is stated in the evidence that her deceased husband-Namdeo and his first wife is residing on the ground floor; whereas she is residing on the first floor with her son-Rahul. When Suman Khedkar speaks about the residence of deceased-Namdeo with the first wife on the ground floor, it means the residence of Namdeo and his first wife when Namdeo was alive. Merely because present tense has been used while recording the evidence of Suman in her examination-in-chief, it cannot be said that the case of the respondent that her mother-Suman resides with her in the quarters is falsified. The evidence of Suman, in her examination-in-chief that she is hale and hearty and she is looking after her granddaughter-Bhumika since past three years, is not specifically challenged in her cross-examination. There is an admission that she resides in Amravati, as an owner. That admission is referable to her stay at Armavati, as an owner as she has immediately clarified that she is residing in Nagpur. The Family Court has appreciated the evidence on record in the right perspective while holding that the custody of the child-Bhumika should be retained by the respondent-wife, especially when Bhumika is a girl child. The Family Court has rightly considered the judgment of the Hon''ble Supreme Court and the High Courts while refusing to grant the custody of Bhumika to the appellant.

The judgments cited supra and relied on by the learned counsel for the appellant cannot be made applicable to the facts of this case. In Sheila B. Das Vs. P.R. Sugasree, AIR 2006 SC 1343 : (2006) 1 DMC 343 : (2006) 2 JT 482 : (2006) 2 SCALE 388 : (2006) 3 SCC 62 : (2006) AIRSCW 965 : (2006) 2 Supreme 169 , the custody of the minor child was sought by the mother who had surreptitiously removed the minor child from the custody of the husband -respondent when the husband was out of station for his professional work. In the said case the father of the child was required to file Habeas Corpus Petition to seek her presence. The Hon''ble Supreme Court in the said decision, considered that the child was very happy in the company of her father and was doing consistently well in the school while she was in her father''s custody. In the circumstances of the case, the Hon''ble Supreme Court held that the child could not be removed from the custody of the father, on the petition by the mother. The judgment reported in Shaleen Kabra Vs. Shiwani Kabra, AIR 2012 SC 2467 : (2012) 5 SCALE 193 : (2012) 5 SCC 355 : (2012) AIRSCW 3219 , is distinguishable on facts. In the said case the issue was in regard to the separation of two siblings while considering the claim of the custody by one of the spouses. Such is not the case here. Also in the judgment reported in Mausami Moitra Ganguli Vs. Jayant Ganguli, AIR 2008 SC 2262 : (2008) 3 CLT 679 : (2008) 6 JT 634 : (2009) 153 PLR 506 : (2008) 8 SCALE 527 : (2008) 7 SCC 673 : (2008) AIRSCW 4043 , the Court found that when the child was suggested that he should stay with his mother for some more time, the child started crying and whining and showed reluctance to go with his mother. On a consideration of the evidence on record and the reluctance of the child to go with the mother, the Court held that the custody of the child could not be given to the mother. Lastly, in the judgment reported in 1990 (2) Mh.L.R. Page 49, there was evidence on record to show that the mother had been suffering from schizophrenia and she was required to be treated in a Mental Hospital. The Court, therefore, held that this aspect could not be left out of consideration while deciding the issue of custody. None of the judgments relied on by the learned counsel for the appellant can be made applicable to the facts of this case. In our considered view, the Family Court has rightly held that the appellant was not entitled to the custody of Bhumika and rejected the petition filed by him.

In the result, the for reasons aforesaid, we dismiss the Appeal, with no order as to costs.