CHANDAN DIGAMBAR PAWASKARversusTANVI DATTARAJ GAD

2026:BHC-GOA:863
                                      AO 14 of 2026


                   IN THE HIGH COURT OF BOMBAY AT GOA


                                APPEAL FROM ORDER NO.14 OF 2026
             Chandan Digambar Pawaskar,
             S/o Digambar Raghuvir Pawaskar,
             Aged about 43 years, Business,
             R/o Rukmini Niwas,
             178/10, Ganeshpuri, Mapusa, Goa.
                                              .
             Presently residing at 1105 H,
             Sangria, Megapolis, Hinjewadi
             Phase 3, Pune, MH.
             Email: [email protected] /
             [email protected]
             Mobile: 8459046591 / 8149826949
                                                          … Appellant.
                          v/s
             Mrs. Tanvi Dattaraj Gad, previously
             Mrs. Tanvi Chandan Pawaskar, alias
             Tanvi Ashok Xete Raikar,
             Wife of Dattaraj Gad,
             Aged about 37 years, Service,
             R/o 361/1/A, Tambudki Waddo,
             Arpora, Bardez, Goa
             Email: [email protected]
                                                        … Respondent.
             Mobile No. 9168690692

            Appellant in person (through V.C.).

            Ms. Ashwini Agni with Mr. Junaid Shaikh, Advocates for the
            Respondent.

                                  CORAM: VALMIKI MENEZES, J.
                                  RESERVED ON: 19th AUGUST, 2025
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                        PRONOUNCED ON: 18th APRIL, 2026
ORDER:

1.    Registry to waive office objections and register the matter.

2.    This appeal is directed against order dated 21.10.2024,
passed by the Civil Judge Senior Division Mapusa, in Portuguese
Civil Miscellaneous Application No.83/2024/C. By the
Impugned order, the trial court has disposed of an application at
Exhibit B-1 filed by the Appellant, who is the original applicant,
partly allowing his application for full custody of his child; the
Respondent is the mother of the child and divorced wife of the
Appellant.


      By the impugned order, the trial court has granted the
Appellant with weekend custody on Saturday and Sunday at his
Mapusa residence in the state of Goa, subject to school timings
and exams of the child. In addition, the Appellant has been
granted vacation custody during, Summer, Diwali and Christmas
vacation subject to the best interest of the child.


3.    It was the Appellant’s case in his application seeking full
custody of the child, which was filed on 14.12.2018, that the
Applicant who is the father of the child, is best suited to have full
custody of the child for various reasons, amongst which is the
fact that the Applicant is main caregiver to his child since he
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spends play time with his child, looks after his studies and
academic needs and bears all the expenses of the child’s
upbringing and schooling.


     It is the Applicant’s case that the Respondent mother is not
fit to have their child’s custody since she has greatly neglected
the child whilst being in an adulterous relationship. The
Application alleges that the Respondent spent long hours away
from home, leaving the child at home without care and often
missing school on account of sickness, and she even suffered
from suicidal tendencies. The Application further alleges that the
Respondent forcibly takes the child for outings with her family
at which time the child misses school, adversely affecting his
studies and his health. On these facts the Applicant claims full
custody of the child.


4.   The Respondent has opposed the grant of full custody by
filing an Affidavit in reply, denying the Applicant’s contentions.
The Respondent has contended that the Court of the Civil Judge
Senior Division at Quepem, by Judgement and Decree of
06.05.2023, has granted a decree of divorce to the Respondent,
dissolving her marriage with the Applicant. The Respondent
further states that she is now married to Dattaraj Gad, their
marriage being registered on 06.11.2023. Post her second
marriage, she has shifted with her minor child into the residence

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of her present husband. She states that her husband, Dattaraj, was
previously married and divorced and has a daughter from his first
marriage who is in his custody and residing with them and her
minor child.


      In her reply, the Respondent has alleged that the applicant
is an unfit father as he has not been present for his son throughout
their married life and has not been participating in his child’s life
as a father. In her reply, she alleges that their child has suffered
stress in the company of the father, who has not looked after the
financial needs of the child. The reply recounts various incidents
which had traumatized the child and also makes reference to
various police complaints, including complaints filed at the
Porvorim Police Station. The Respondent also alleges that the
Applicant demonstrates aggressive behavior. Reference is also
made to the orders of this court passed in habeas Corpus Petition
through which the Applicant sought custody of the child. The
respondent alleges that the Applicant is unable to look after the
emotional and other needs of the child and should not be granted
custody of the child.


5.     The trial Court dismissed the custody application filed by
the Applicant, without deciding it on merits, holding it not to be
maintainable in view of the dismissal of the Applicant’s
Matrimonial suit as being infructuous after the Respondent was

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granted a Decree of divorce by the Quepem Court. That order
came to be passed on 29.02.2024, which was set aside by this
Court vide Judgment dated 26.06.2024 passed in a Misc. Civil
Application No. 1078/2024(F) filed by the Appellant herein, and
the application for custody of the child of the Appellant was
remanded back to the Mapusa Court with the direction to register
the application separately, and after giving the parties an
opportunity, to decide the same within two months.


6.   The trial court has framed the following point for
determination:


         “Whether the applicant proves that he
         is entitled for full custody of the minor
         child?”

7.   Both parties led evidence. The Applicant has only
examined himself whilst the Respondent has examined herself
and 3 other witnesses. Upon considering the evidence, the trial
court has granted only weekend custody and vacation custody to
the Applicant whilst refusing his application for full custody.


8.   After notice was issued in this Appeal, the Applicant has
chosen not be represented by any counsel and has refused
appointment of an advocate through legal aid, stating he would
argue his own case. Throughout the Appeal proceedings the

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Applicant has appeared through Video conferencing and chosen
not to physically address the court. His Appeal and all annexures
therein have been filed online. The Applicant has filed written
notes of arguments.


     Mrs. Ashwini Agni, Advocate for the Respondent, has
advanced short oral submissions in addition to which she has
relied upon written submission which were taken on record.


9.     On considering the rival submissions and the case of the
Applicant and the Respondent as set out in their pleadings in the
trail court, the following point for determination arises for my
decision:


              (a) Based upon the pleadings of the
              parties and the evidence led by them,
              does the Appellant make out a case for
              full custody of his minor child.


10.    Before considering the submissions and evidence on
record, to answer the point for determination, it is relevant to note
a fact that has transpired after the passing of the Impugned order.
From the record remitted to this Court by the Civil Judge at
Mapusa, besides the present custody application filed by the
Appellant, a custody application No. Portuguese Civil

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Miscellaneous Application no.69/2024/A came to be filed before
the Civil Judge Senior Division ‘A’ Court at Mapusa by the
Respondent mother, claiming exclusive and permanent legal
custody of their minor child. That matter was contested by the
present Appellant( father) and an order dated 12.12.2024 came
to be passed therein (after the passing of the present impugned
order on 21.10.2024), granting the Respondent (mother) custody
of the child, subject to weekend custody on Saturday and Sunday
to the present Appellant at his Mapusa resident, subject to school
timings and examination of the child, and further granting the
present Appellant vacation custody during summer, Diwali and
Christmas vacation, subject to best interest of the child.


11.   This order granting full custody to the Respondent
(mother) does not appear to have been assailed by the Appellant
or at least, if assailed, such Appeal has not been brought before
me by the Appellant. Perusal of the file of Portuguese Civil
Miscellaneous Application No. 69/2024/A, which was remitted
to this Court along with the record of Appellant’s Portuguese
Civil Miscellaneous Application No. 83/2024/C reveals that the
Appellant herein was heard through Video Conferencing. The
Appellant has participated in those proceedings pursuant to
orders of transfer of that petition vide order dated 23.09.2024.
The Appellant’s custody application, as observed earlier, was
remanded back to the Civil Court to decide on merits in a time
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bound manner. It is under those circumstances that the Civil
Court has passed orders on the Respondent’s (mother)
application for custody at a later date, which has not been
separately challenged.


12.   The Applicant (father) led evidence by filing an affidavit
in evidence in view of examination in chief. The affidavit is dated
29.07.2024 and contains three paragraphs with documents
referred to as “Arguments Submissions” of 812 pages annexed
to it. Apart from this three paragraphed affidavit, by the
Appellant, there is no substantive deposition recorded by the
Appellant. The examination in chief was recorded through Video
Conferencing on 25.07.2024, where after production of the
affidavit, the Applicant submitted that he was relying upon the
documents containing 812 pages E-mailed to the Court. The
examination in chief does not attempt to prove the contents of
each of the relied documents and on most of which is in the form
of electronic evidence.


  Extensive cross examination has been conducted by the
Respondent, of the Applicant.


13.   The first question that would arise before me is whether
the contents of the three paragraphed affidavit and the documents
produced in electronic form, could, by themselves be construed

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as evidence under Section 3 of the Evidence Act. Having perused
the PDF uploads comprising around 812 pages annexed to the
affidavit, at the outset, I am constrained to hold that not a single
of his document has been marked as an Exhibit or the Appellant
attempted to even prove their contents by referring to them. In
fact, some of the documents relied upon are voice recordings of
what the Appellant alleges is recorded on spy app, that he loaded
on the phone of the Respondent to prove the allegation that the
Respondent was in an adulterous relationship.


14.   There is absolutely no proof of this electronic evidence,
much less compliance to the provisions of Section 65-B of the
Indian Evidence Act, 1872 or with the provisions of the
Information Technology Act, 2000 and the Rules framed
thereunder. This apart, there is absolutely no expert evidence led
by the Appellant, even if we assume that the contents of the voice
recording is of the Respondent, since it would be incumbent to
demonstrate by expert evidence and comparison of voice
samples of the Respondent with the voice recording on the spy
App that it was in fact Respondent’s voice recorded therein.
Apart from this electronic evidence not having been proved,
reliance upon the same would be unsafe and therefore must be
discarded. Even assuming that the voice recordings, which
allegedly point to the Respondent being involved in an alleged
relationship with a third person, that by itself would not be the
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only piece of material which could form the basis for granting
full custody to the Appellant.


15.    In my opinion, merely because the Respondent is alleged
to be in an extra marital relationship, does not disentitle her, as
the mother of the child, to the custody of the child. What the
Appellant was required to prove by evidence was the fact that the
Respondent’s conduct as a mother was so detrimental to the
wellbeing of the child that it precludes her from having a custody
of a child, who was at the relevant time was 6 years old.


16.    The pleadings of the Applicant seeking custody of the
child, are restricted to making the following allegations, which
form the basis and grounds for alleging that the mother is unfit
to retain custody of the child;


      a.   That the Respondent has greatly neglected the
           child whilst being in an adulterous relationship.


      b.   When the child fell sick, the Respondent would
           prefer not to miss office and would leave their ill
           son with the Petitioner.


      c.   The Respondent had suicidal tendencies or
           pretends she does; when the Respondent goes out
           with a family, the child is taken along and misses
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             school, adversely affecting his studies and
             health.


     On these pleadings, the Petitioner has pitched his case for
full custody.


     At the outset, I must note that merely on the
aforementioned allegations, even if they were true and the
pleadings proved, they might not constitute sufficient grounds to
deprive the Respondent of the custody of the child. The child, as
on the date the application was filed, was about 6 years old.
Obviously, his mother was the primary care giver at the relevant
time, considering the age of the child. At that time, their child
was in joint custody of both the parents, and there were no
interim orders passed by any Court granting custody during the
pendency of the application to either parent.


17. The Respondent’s reply has denied the allegations made in
the application. The averments made therein, by which the
Respondent opposes the Petitioner’s application are the
following:


             a.   Essentially the Respondent alleges that the
             Applicant was never present, emotionally for his
             child. Further, she alleges that though the Applicant

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was extremely well off he has shirked of the
household on to the Respondent and the Respondent
was constrained to use all her earning to pay
household bills, EMI, groceries and for all other
needs of the child.


 b.   That the Applicant had subjected the child, on
multiple instances to abuse, use of filthy language in
his presence, affecting the mind of the child; it is also
alleged that the Applicant as also his parents are
aggressive and dominating in nature.


c.    The Respondent then averred that the Civil
Judge Senior Division at Quepem had granted her a
decree of divorce on 06.05.2023, in Matrimonial
Petition No. 42/2022/A and after the cancellation of
the registration of her marriage with the Applicant,
she had remarried Shri Dattaraj Gad on 06.11.2023.
She has stated that Dattaraj Gad had divorced and his
daughter from his first marriage lives along with the
Respondent’s child. She has also stated that their
child is academically very bright and there is no
reason why the custody, which has always been
exercised by her over a child, should be changed. She
has also stated that her child is enrolled in football

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            classes and various other sports activities and
            regularly attends school where he has an excellent
            academic performance.


18. On these pleadings, as discussed by me in preceding
paragraphs, the Applicant has not produced and proved any of
the documents relied upon by him in his application. In contrast,
the Respondent has examined herself by filing an affidavit in
evidence and producing a large volume of documentary evidence
in support of her case. The Respondent has produced the divorce
decree granted by the Quepem Court, the academic record of the
child, various photographs where the child is seen indulging in
sports activities or interacting with family members and friends.
In addition, the Respondent has also produced a Marriage
Certificate recording a marriage with Dattaraj Gad. The report
cards of the child generally assess the child with good academic
performance with excellent or very good academic performance.


19. The cross-examination of the Respondent, does not in any
manner indicate that the evidence of the Respondent has been
shaken or a doubt is created as to its truth. In fact, most of cross-
examination is irrelevant to the main issue which was required
to be proved that is the fitness of the Respondent mother to retain
the custody of her child.


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20. The Respondent has then examined witness Rw-2 Dattaraj
Gad, i.e. her husband in her second marriage. He has filed his
affidavit in evidence, corroborated the statement made by the
Respondent as to her second marriage and the arrangement by
which the Respondent lives along with her husband Dattaraj Gad
with their respective children in the same household. Rw-2 has
also deposed as to his relationship with the Respondent’s child
and that the child treats him as his own father. He has been
extensively cross-examined by the Applicant. Perusal of the
entire cross-examination does not disclose any evidence which
could be considered adverse to the refusal of grant of custody to
the Respondent. In fact, the entire evidence of Rw-2 supports
the case for grant of custody to the Respondent mother. Here
again, most of the cross-examination is irrelevant to the main
issue in the case.


21. The Respondent then examined Rw-3 Ms. Ranjana
Mandrekar, who is a family friend of Rw-2 Dattaraj. She has
deposed that she knew Dattaraj was previously married and the
marriage was dissolved, from which Dattaraj has one daughter,
Roshni who is in his custody and living with Dattaraj and the
Respondent. The witness has further deposed that she regularly
visits the house of the Respondent and has observed that the
relationship between the Respondent and Dattaraj is very good,
and the Respondent’s son Athang, is well looked after by
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Dattaraj. She has also deposed that Athang is very attached to
Dattaraj and to Dattaraj’s mother Surekha, so also to his step
sister Roshni. Again in cross-examination of this witness has not
been shaken in any manner.


22. The Respondent has then examined Rw-4 Shri Amrut
Singh on summons, Rw-4 has deposed that he knows the
Respondent, Athang and Dattaraj and he has seen all of them
living happily together. He has further deposed that he has
attended football tournament in which Athang has participated
and has also deposed on the high scores achieved by Athang of
more than 90 % in his school.


     In cross-examination he has stated that he is an electronic
engineer and has his own business. Various irrelevant questions
put to this witness are disallowed by the Court and cross-
examination was closed. In substance, the deposition of Rw-4
has remained intact without being shaken.


23. Considering the evidence on record, in my opinion, there is
practically none led by the Applicant to prove the pleadings in
his application. In fact, even the application for full custody of
the child hardly has any material pleaded therein, on the basis of
which, even if such facts were proved, custody could have been
granted to the Applicant.       In contrast, from the evidence

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discussed above the Respondent has, apart from examining
herself in detail as to the circumstances under which she should
have full custody of the child, she has examined her second
husband whose deposition inspires confidence and appears to be
truthful, mainly setting out the fact of the relationship between
him and Athang and the atmosphere in the Respondent’s new
matrimonial home. In addition, the witnesses Rw-3 and Rw-4
have fully corroborated the evidence led by the Respondent, both
on the fact that Athang has a stable home and has done well
academically and in sports, justifying no change in custody.


24. Having perused the impugned order, I am of the opinion
that the findings rendered by the Trial Court on the point for
determination are entirely based upon evidence led by the
parties, which have been reappreciated by me in the preceding
paragraphs; none of the findings can be termed as perverse,
contrary to the evidence on record or in any manner, against the
best interest of the child. It is settled law, that the best interest of
the child is the paramount consideration in matters of custody,
and this principle has been followed by the Trial Court in
assessing the evidence before it. No interference is called for
with the impugned order. I accordingly answer the point for
determination framed by me in the negative. Consequently, the
appeal stands dismissed, and the impugned order dated
21.10.2024 passed by the Civil Court stands confirmed.
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25. Records and proceedings of Matrimonial Petition
No.8/2018/B, on the file of Civil Judge Senior Division at
Mapusa, Matrimonial Petition No.42/2022/A, on the file of Civil
Judge Senior Division at Quepem, Portuguese Civil Misc.
Application   No.83/2024/C      and      Portuguese   Civil   Misc.
Application No.69/2024/A on the file of Civil Judge Senior
Division at Mapusa shall be remitted to the respective Courts.


26. The Appeal stands dismissed. The impugned order dated
21.10.2024, granting the Appellant custody on Saturday and
Sunday at his Mapusa residence at Goa, and vacation custody
during summer, Diwali and Christmas vacations, subject to the
best interest of the child and subject to school timings and exams
of the child as may be applicable, stands confirmed.



                                    VALMIKI MENEZES, J.




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