IMPORTANT POINT
Welfare of the children is determinative in deciding their custody.

JUDGMENT

A.K. Sikri, J.

It is an unfortunate case where the parties, who are wife and husband, are having a bitter and acrimonious fight over the custody of their children. Such custody battles are always regrettable, not only for the spouses who resort to this kind of litigation, which is the offshoot of matrimonial discord and results in their separation from each other, but also for their child/children who become the subject matter of this kind of dispute. Failure of marriage generally leads to disputes of varied nature, either in the form of divorce or enforcement of conjugal rights or maintenance etc. and even criminal cases in the form of proceedings under Section 498A of the Code of Criminal Procedure, 1973 and so on. However, in those cases where their togetherness as spouses had resulted in procreation of children, the war is extended by laying respective claims on the custody of those children as well. These minor children, for their proper upbringing, need the company of both the parents - mother as well as the father, for financial reasons, security reasons, psychological reasons, etc. They need the love of both their parents. Not only separation of their parents from each other deprives these children 24/7 company of both the parents, when it results in legal battle of custody in the courts, the situation becomes more traumatic for these children because of various obvious reasons. That is why such cases which seriously impact these children are the most unfortunate.

2. In the instant case, marriage between the parties as per Hindu rites and ceremonies was solemnised way back in November 1997. They lived together for number of years. Their first child, a boy named Taney, was born in the year 2000 and second child, a daughter named Varenya, was born in the year 2004. The appellant herein left the matrimonial home on February 18, 2013. Thus, they were together for more than fifteen years when the desertion took place, though as per the allegations of the appellant she had suffered mental and physical torture at the hands of the respondent since the beginning of the marriage, but for the sake and well being of the children and also because of her financial dependency on the respondent she continued to live with the respondent. These allegations of maltreatment of the appellant are denied by the respondent. In any case, that is not the crux of the matter.

3. It so happened that when the appellant left her matrimonial home in Pune and came to her parents house in Mumbai, children remained in the custody of the respondent. Tanay was not at home as he was studying in a boarding school at Coimbatore at that time. Insofar as Varenya is concerned, the allegation of the appellant is that it is the respondent who did not allow the appellant to take her along to Mumbai. Some attempts were made thereafter for settlement of their disputes, which did not bear any results. On September 18, 2014, the appellant filed a domestic violence case in the 38th Court of Additional ACMM, Ballard Estate, Mumbai on the ground of gross mental and physical cruelty, including verbal and physical abuse and occult practices. Three months after filing the said case, the appellant moved an application therein praying for access to her minor children during Christmas vacation, which was allowed to be availed of in the respondent's house in Pune.

4. In February 2015, Varenya was also admitted in a boarding school by the respondent. The appellant, at that juncture, moved an application for interim custody of the minor children as well as for maintenance. However, custody was not allowed on the ground that children were studying and it would not be proper to give custody during the midst of their academic year. At the same time, interim maintenance @ Rs. 30,000/- per month was directed to be given to the appellant. In May 2015, when the summer vacations were approaching, the appellant filed an application praying for custody of children for half of the vacat