RASHMI RAVINDRA JOSHIversusNIRANJAN SATISH OAK

                                                                      FCA 111_2026.odt

                                                                            Rohit Ghuge

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION

ROHIT
                                     FAMILY COURT APPEAL NO. 111 OF 2026
RAMDAS
GHUGE
Digitally signed by
                      Rashmi Ravindra Joshi
ROHIT RAMDAS
GHUGE
Date: 2026.09.23
                      Age: 45 years, Occupation: Service,
12:09:57 +0530
                      Residing at C/o. Ravindra Joshi
                      D-36, Suvarna Apartments,
                      S. No. 80/90, Lokmanya Housing,
                      Colony, Kothrud, Pune – 411 038

                                     And

                      Presently R/a Flat No. 4, Ground
                      Floor Bldg. No. 25, Renuka Hsg. Soc.,
                      Scheme 10, Sector 21, Yamunanagar,
                      Nigdi PCMC, Pune 411 044                        …Appellant

                            Versus

                      Niranjan Satish Oak
                      Age: 47 years, Occupation: Service,
                      Residing at Sangita Satish Oak,
                      B-1/501, Yellow Blossom Society,
                      B.T. Kawde Road, Ghorpadi,
                      Pune 411 036.                                   …Respondent

                                                    WITH
                                     INTERIM APPLICATION NO. 6612 OF 2026
                                                     IN
                                     FAMILY COURT APPEAL NO. 111 OF 2026

                      Rashmi Ravindra Joshi
                      Age: 45 years, Occupation: Service,
                      Residing at C/o. Ravindra Joshi
                      D-36, Suvarna Apartments,
                      S. No. 80/90, Lokmanya Housing,
                      Colony, Kothrud, Pune – 411 038

                                     And




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                                                          FCA 111_2026.odt

Presently R/a Flat No. 4, Ground
Floor Bldg. No. 25, Renuka Hsg. Soc.,
Scheme 10, Sector 21, Yamunanagar,
Nigdi PCMC, Pune 411 044                                  …Applicant

      Versus

Niranjan Satish Oak
Age: 47 years, Occupation: Service,
Residing at Sangita Satish Oak,
B-1/501, Yellow Blossom Society,
B.T. Kawde Road, Ghorpadi,
Pune 411 036.                                             …Respondent

                                   ____

Ms. Seema Sarnaik, Senior Advocate i/b Adv. Sangeeta Salvi a/w Ms.
Pooja Chettier and Ms. Sangita Kalsekar, Advocates for the Appellant.

Ms. Padmini Pathak a/w P. K. Hartalkar i/b Mr. Tejas P. Hartalkar a/w Mr.
Mehul P. Hartalkar, Advocate for Respondent.
                                  ___

                                  CORAM: BHARATI DANGRE &
                                         ASHISH S CHAVAN, JJ.

                                   DATE : 11th SEPTEMBER 2026.

JUDGMENT (Per Ashish S. Chavan, J.):

1.    By way of this Appeal, the Appellant mother has assailed the order

of the Family Court, Pune dated 1.07.2026 (“impugned order”) which

inter alia directs the Appellant to handover custody of her minor

daughter aged 14 years to the biological father-Respondent within a

period of 2 months from the date of order. Although, the Family Court

has passed several other directions, the challenge in the present Appeal is

to the limited extent of the custody of the minor daughter being handed




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over to the Respondent.


2.     A brief background along with a short chronology of events which

are germane to decide the controversy that arises before us is as follows:


     2.1. The marriage between the Appellant mother and Respondent

         father was solemnized on 17.01.2012. On 13.10.2012, their

         minor daughter was born. Although, it is the case of the

         Appellant that she was constrained to leave the matrimonial

         house on 19.09.2012, it is an undisputed position that since her

         birth, the daughter was in the custody of the Appellant-mother.


     2.2. On 10.06.2013, the Respondent-father filed a Petition for

         divorce u/s 27 (1) (d) of Special Marriage Act, invoking Sec 38

         thereof to seek custody of his daughter.


     2.3. On 15.12.2016, the Appellant and the Respondent, inter se

         resolved their disputes and executed consent terms. The consent

         terms stipulated that permanent one time alimony of Rs.

         3,00,000/- was to be paid by the Respondent father to the

         Appellant mother and the visitation rights of the Respondent

         father were set out while mutually agreeing that the custody of

         their daughter shall be with the Appellant-mother until she

         attained majority. By judgment and decree dated 18.01.2017, the

         Family Court, Pune granted divorce to the Appellant and the



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         Respondent in terms of the aforesaid consent terms and the

         marriage stood dissolved between them.


     2.4. On 08.02.2019, Respondent father sought modification of the

         judgment and decree dated 18.01.2017 and also sought custody

         of his minor daughter by way of an Application numbered as PD

         No. 8/2019 before the Family Court. On 10.07.2019, the

         Appellant mother filed Civil Miscellaneous Application No.

         67/2019 seeking to modify the judgment and decree dated

         18.01.2017 to the extent of the access clause. Both these

         applications were clubbed by the Family Court and heard

         together.


     2.5. On 06.07.2023, the Appellant mother filed an application u/s

         125 of CrPC. claiming maintenance for the minor daughter.


     2.6. On 16.03.2026, the Appellant got married for the second time. It

         is pertinent to note that after her marriage, the Appellant has

         moved to the house of her husband along with the minor

         daughter.


3.      The Family Court has decided all the pending applications and

passed a composite order on 01.07.2026. The Appellant mother by way

of this Appeal has taken exception to the aforesaid impugned order to

the extent of laying a challenge to Clause Nos. 1 & 4 of the order which



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are reproduced as under:


       “1. “D” Petition No. 8/2019 is allowed.
       XXX
       4. Respondent/quondam wife/Mother Rashmi is hereby
       directed to hand over the custody of minor daughter
       Mihika to the biological father- Niranjan Oak, within a
       period of two month from the date of this Judgment.”

4.    Since, the Appellant mother is essentially challenging the handing

over of the custody of her minor daughter to the Respondent father, we

do not deem it appropriate to advert to the other disputes between the

parties.


5.    On behalf of the Appellant mother, the impugned order is assailed

on several grounds. It is contended that, the Family Court has erred in

holding that the Respondent father is entitled for permanent custody of

minor Daughter only on the premise that the Appellant has re-married

and that the present husband already has two daughters from his earlier

marriage. It is also contended that, the Family Court has not considered

the fact that the Respondent father had not led any evidence on the

aspect of the second marriage of the Appellant and more particularly his

allegation that the minor child was unsafe in the changed atmosphere in

the new house and in the company of the new family. It is also urged that

there was no material produced before the Family Court to demonstrate

that the minor was under pressure or unhappy with the Appellant and




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her new family. It is also contended that on the contrary, prior to her

getting married for a second time, the Appellant had taken into

confidence her daughter and the daughters of her prospective husband to

ensure that the transition of her daughter into the new family would be

smooth and natural.


      The Ld. Senior Advocate for the Appellant also criticized the order

of the Family Court on the ground that the primary consideration of the

Family Court in granting the custody to the father is not the welfare of

the child but the fact that he is the biological father and only for this

reason, the welfare of the minor child would necessarily be taken care of

by him. The Ld. Senior Advocate also pointed out that during her

interview with the Family Court on 04.02.2026, the daughter had

informed the Judge that she wished to stay with her mother and her new

family and that she and her step sisters were sharing the same bedroom

and that she was happy with her new family. It was further contended

that the Family Court was in error in not considering the fact that the

Respondent father is staying with his aged father who is himself 74 years

old. There is no female member in the house to take care of the

adolescent daughter. The Respondent’s sister who is staying in the same

complex is at present suffering from cancer and has admitted her own

daughter to a hostel. It was contended that these aspects would disentitle

the Respondent father from claiming custody of the daughter as he




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would not be able to give her a conducive atmosphere for her overall

growth. Lastly, the reasoning of the Family Court is assailed on behalf of

the Appellant on the ground that speculative, extraneous and frivolous

justifications were given by the Family Court to modify the divorce

decree which was granted by consent.


6.     On behalf of the Respondent-father, the impugned order is

defended on the strength of various submissions. It is contended that

that the re-marriage of the Appellant was an emotionally disturbing event

for the daughter, who is an adolescent. It is also contended that she was

not taken into confidence by the Appellant before taking this important

step which would have multiple ramifications on the emotional aspect of

her life.   It is also argued that the Appellant mother is not concerned

about the well-being of the daughter and this was sought to be

highlighted through an incident of May 2026 when allegedly the

daughter informed the Respondent father that she was having pain in her

leg from 4-5 days and her mother did not take her to a doctor. It is also

sought to be contended that the daughter is having difficulty in coping

with the new family and due to this mental and psychological

disturbance, she is suffering academically. Lastly, it is contended that the

handing over of custody to the Respondent father is justified since it is in

the best interest of the daughter and during the course of an interaction

with the Judge of the Family Court, the daughter expressed a wish to stay




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with the father.


7.    Before proceeding to deal with the reasoning of the Family Court

in the impugned order, it would not be out of place to set out the broad

contours of the jurisdictional authority conferred upon the Family Court

vide Section 38 of Special Marriage Act, 1954 to make, revoke, suspend

or vary the decree and orders pertaining to custody, maintenance and

education of minor children. Section 38 is reproduced as under:


         “38. Custody of children- In any proceeding under
         Chapter V or Chapter VI the District Court may, from
         time to time, pass such interim orders and make such
         provisions in the decree as it may seem to it to be just and
         proper with respect to the custody, maintenance and
         education of minor children, consistently with their
         wishes wherever possible, and may, after the decree, upon
         application by petition for the purpose, make, revoke,
         suspend or vary, from time to time, all such orders and
         provisions with respect to the custody, maintenance and
         education of such children as might have been made by
         such decree or interim orders in case the proceeding for
         obtaining such decree were still pending.”


      From a plain reading of Section 38, one thing that stands out with

clarity is that the overarching consideration in invoking Section 38 is to

ensure the welfare of the minor child in consonance with their wishes

wherever possible. In the present case, since the daughter whose custody

forms the bone of contention between the parties is an adolescent young

girl aged 14, the underlying principle of the welfare of the minor child

being in consonance with the wishes of the child wherever possible



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assumes significance.


8.      Although the impugned order covers other disputes set out

hereinabove between the parties, since the Appeal has taken exception

only to the handing over of the custody of the daughter to the

Respondent father, we also deem it appropriate to restrict our findings to

examine whether the aforesaid change of custody was based on sound,

cogent and logical reasoning and whether it was in the best interest of the

minor child and in consonance with her wishes.


9.    The Family Court has on one hand observed that the fact that the

Appellant mother has married again by itself would not be a factor to

determine the custody of the minor child. The impugned order observes

that, the conduct of the parties, the reasons which compelled them to

dissolve the marital tie, allegations of ill treatment against each other are

not important to decide the application for modification of the

conditions of custody of the minor child. It also observes that change in

school of the child by itself is not a factor to determine the custody,

neither is the financial capacity of either of the parties. The tenor of the

Judge in the impugned order seems to be that the most important factor

in determining the balance of convenience between the contesting parties

is the welfare of the minor child. However, we fail to see any rationale

behind the ultimate finding of the Family Court to handover the custody

of the minor daughter to the Respondent father. The only justification



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that the Family Court gives in arriving at this conclusion seems to be

based on speculative inferences, stereotypical categorization of human

relationships, and conjectures. The Family Court concludes that the

daughter definitely will experience feelings of insecurity, jealousy or

divided loyalties, without assigning any reasons for coming to such a

finding. The Judge further observes that parents transition to a new

relationship is not easy to accept for children, without any factual finding

to support the same. Some of the observations and conclusions of the

Family Court given illustratively are as under:


             “47...Judge is also a human being and part of the
      Society. We need to see the present situation by putting our
      leg into the shoes of the party. We need to hear unspoken
      words. Am of the view, if the court deeply consider the
      entire factual matrix, it would definitely hear the inner
      voice….Today the personality of Resp. (Appellant) is
      divided in two parts; one as a mother and another of wife
      as a wife of Mr. (husband of Appellant mother)
      ….However, now the core and important issue arose.
      Now, she has to merge and blend herself in different
      character. Now, she has to dilute and submerge in another
      relation. All are stranger to her. We need to consider the
      emotional clutches faced by her in associating with three
      strangers…”
             “48...Would stranger act as a biological father? I
      may be wrong but, I am of the view that Mr. (husband of
      Appellant mother)’s love towards his own two daughters
      definitely would not be the same to (the minor child). In
      the same line there, is distinction between love of
      petitioner being biological father towards the (minor child)
      and love of (husband of Appellant mother) towards the
      minor child. I reiterate that blood is thicker than water.”
      XXX




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             “50...Am not doubting the character of three
      stranger + divided mother as a well wisher of child but all
      that glitters is not a gold. Am of the firm view that in such
      changed situation, bright future of the minor child set only
      in the lap of her biological father.”
      XXX
             “55. I conclude by way that, in the lap of biological
      father, I see bright future of young girl. Rather in the
      company of three stranger/s, she would sleep peacefully in
      the company of her Dad. Am not suspecting the mother’s
      love but owing to change circumstances, extended
      members of the Family, who are totally stranger to the
      minor child, for the remaining four years period, if she
      resides with her biological father I see her future safe.”


10.   It is evident from the aforesaid observations that the Family Court

was persuaded to hold that the custody ought to be handed over to the

Respondent father predominantly on the basis of the fact the minor child

would be more comfortable in the company of her biological father and

her newly formed family could not give her the same warmth and love.

The Family Court seems to have lost sight of the fact that the ingredients

of Section 38 of the Special Marriage Act, 1954 rest on the foundational

fact of the interest and welfare of the minor child in consonance with

their wishes where ever possible. Although the Family Court refers to

interacting with the daughter, it does not set out its impressions and

observations on interacting with the child. It also seems to have

disregarded the settled position of law that post-divorce modifications

are to be seen in the perspective of “substantial change in circumstances”.




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This is the guiding principle in determining whether alteration of terms

ought to be granted or not. In the facts of the present case, the impugned

order does not reflect any substantial change in circumstances to

necessitate a change in custody of the minor child, especially in the

background of the fact that the daughter was staying with the Appellant

mother and the Respondent father was granted adequate access and

visitation to her as per the consent terms.


11.   In order to ascertain the wish of the daughter, we had interacted

with her in chambers on 02.09.2026. We noted that she is a mature girl,

who was fairly articulate in expressing herself. She expressed her wish to

continue staying with the Appellant mother and her new family, whilst

continuing to meet her father (Respondent) from time to time. She with

clarity expressed before us that she had no difficulty in adjusting or

coping with her father, sisters or any other members of the new family

and rather she is happy in the new family.


12.   In the wake of the aforesaid discussion, we have no hesitation in

coming to a conclusion that the impugned order deserves to be set aside.


13.   Hence the following order:


       i.     Family Court Appeal No. 111 of 2026 is allowed.

              Impugned order passed by the Family Court, Pune

              dated 01.07.2026 to the extent of Clauses 1 and 4 is



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                set aside.


       ii.      Since the custody of the minor daughter Mihika is

                already with the Appellant mother, she is permitted

                to retain the same. In addition thereto, overnight

                access/access during school/college vacation may be

                given to the Respondent father keeping in mind the

                convenience of the minor daughter .


       iii.     The Appellant to continue to grant access of the

                minor daughter Mihika to Respondent father in

                terms of the consent terms dated 15/12/2016 .


     The accompanying Application for stay does not survive, hence,

disposed off.




ASHISH S. CHAVAN, J.                         BHARATI DANGRE, J.




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