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FA. No. 752 /2012

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD

FIRST APPEAL NO. 752 OF 2012

Wakoji s/o Madanrao Aarbad,

Age 26 years, Occupation agriculturist,

R/o Vita Budruk, taluka Pathri,

District Parbhani

..APPELLANT

VERSUS

Bajirao s/o Bhanudasrao Kale,

Age : 50 years, Occupation agriculturist,

Resident of Chate Pimpalgaon,

taluka Pathri, District Parbhani

..RESPONDENT

Mr P.S. Paranjape, Advocate for the appellant;

Mr S.D. Tare, Advocate for the respondent

CORAM : MRS MRIDULA BHATKAR, J.

DATE : September 21, 2013

ORAL JUDGMENT

Heard Mr P.S. Paranjape, learned Counsel for the appellant and

Mr S.D. Tare, learned Counsel for the respondent.

2.

Admit. At the request and by consent of the learned Counsel for

the parties, the appeal is heard finally at the stage of admission.

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3.

This appeal is directed against the order dated 2.1.2012, passed

by the learned District Judge-1, Parbhani, below Exh.47, in Misc. Civil

Application (R.J.E.) No.127/2009, whereby the application preferred by

the appellant herein for custody of minor Jana, has been rejected.

4.

Jana is a female child born out of the wedlock of the appellant and

his wife deceased Anuradha. Their marriage was solemnized on

10.5.2002. Within two years of marriage, Jana was born. On 12.6.2009,

Anuradha committed suicide by setting herself on fire along with her

second daughter. It is the case of the petitioner that at the relevant time

he had left the house and was on the pilgrimage to Pandharpur. Since

death of Anuradha, Jana is staying with her maternal grand-father at

Chate Pimpalgaon, Taluka Pathri, District Parbhani and taking

education. The appellant filed application for the custody of his minor

daughter Jana, which was rejected by the learned District Judge, after

considering the evidence of both the parties.

5.

In the present appeal, following point arises for determination :-

Whether the order rejecting the custody of minor daughter to

her father, i.e. the appellant, is bad in law and, therefore, the same

is liable to be set aside ?

6.

Learned Counsel for the appellant submitted that the Trial Judge

has committed an error in appreciating the entire evidence produced by

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FA. No. 752 /2012

the appellant. The appellant has admitted that he does not have any

landed property in his name and, therefore, has directly concluded that he

does not have any assured source of income to maintain minor daughter

in satisfactory manner. The Trial Court has lost its sight on the fact that

the appellant had filed his examination-in-chief by way of affidavit,

wherein he has stated that he owns 6 acres landed property in village

Vita, Taluka Pathri, District Parbhani and he is capable of up-bringing his

daughter and bearing the expenses of her education. Learned Counsel

submitted that though there is no land in his name, his father owns land

and that is cultivated by the appellant. He submitted that the Trial Court

has rejected application only on this ground and has not taken into

account that father is the first natural guardian of a minor. Learned

Counsel submitted that though the appellant has now married and has

one more daughter from her, it does not mean that the appellant does not

have love and affection for his first daughter. It is submitted that the

report dated 27.11.2012 is submitted by the Registrar (Judicial) of this

Court after interviewing minor child Jana. Learned Counsel pointed out

that the report is one sided and the report manifests the tutoring of the

child, and so it is not to be taken into account.

7.

Per contra, learned Counsel for the respondent supported the

impugned order and submitted that the mother of minor child along with

her another daughter Monika committed suicide due to the harassment

by the appellant. He submitted that maternal grand-father of the child

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