The court emphasized the need to consider the terms of the settlement in divorce by mutual consent and the welfare of the children in determining custody.

ORDER :

Issue notice.

2. Mr. Amol B. Karande, Adv. who appears on caveat accepts notice on behalf of the respondents.

3. Leave granted.

4. In the application for divorce by mutual consent, it is agreed between the parties regarding custody of children as follows:

“That, petitioner No. 1 and 2 both are agree to custody of both the children’s residing with petitioner No. 1. Petitioner No. 1 will provide education, medicines and marriage of Aarokya Kumar s/o Amit Kumar. Petitioner No. 2 will provide education, medicines and medicines of Riya Kumar d/o Amit Kumar.”

5. It appears that the High Court has missed this crucial aspect while passing an order granting custody of the children to the respondent herein. Learned counsel for the respondent submits that the impugned order is on account of subsequent developments. We hardly see any such reasoning or discussion on subsequent development in the impugned order, We are, therefore, of the view that the matter requires fresh consideration by the High Court, taking into account also the Terms of the Settlement of divorce by mutual consent. We, therefore, set-aside the judgment passed by the High Court and remit the matter to the High Court for fresh consideration. In the interest of the education of the children, the High Court is requested to pass fresh orders expeditiously and preferably within a period of two weeks from today.

6. The appeal is disposed of accordingly.

7. The appellant is permitted to correct the statement made at page 20 paras (N) and (O) of the special leave petition.