The welfare of children in custody disputes is the paramount consideration, overriding parents' rights, and requires courts to assess various emotional and environmental factors.

JUDGMENT :

A. HARI HARANADHA SARMA, J.

Introductory:-

1. The petitioner in FCOP No.299 of 2021 on the file of the Family Court-cum-VII Additional District and Sessions Judge, Anantapuramu, prayed for the relief of custody of his children. Questioning the dismissal of his petition/application, under decree and judgment dated 01.08.2022, he has filed the present appeal.

2. Respondent is his wife.

3. For the sake of convenience, parties will be herein after referred to as the petitioner and the respondent, and children will be referred to as Minor No.1, Minor No.2 and Minor No.3 respectively.

Case of the Petitioner :-

4. [i] Marriage between the petitioner and the respondent was solemnised on 26.10.2008 at Anantapur as per Hindu rights and customs. During the wed lock, the petitioner and respondent are blessed with Minor Nos.1 to 3. Minor No.1 and 2 are daughters, Minor No.3 is son.

[ii] The application/petition filed by the petitioner for dissolution of marriage vide HMOP No.22 of 2018 was ended in decree in favour of the petitioner and the respondent did not choose to contest the same and it became final.

[iii] Minor No.1 is staying with the petitioner, Minor Nos.2 and 3 are staying with respondent.

[iv] Respondent has foisted a case in terms of Section 498 -A IPC and Section 3 and 4 of Dowry Prohibition Act and the same was ended in settlement.

[v] Father and mother of the respondent are working as coolies; the respondent is also attending some job, whereas the petitioner and his brother apart from his parents are residing jointly and they can provide good environment and education to the children with good amenities. Therefore, petitioner is eligible for the relief of custody of the children i.e., minor Nos.2 and 3.

[vi] The respondent-wife did not choose to contest the case and remained ex parte before the Family Court. But the petition was dismissed.

5. Learned Judge Family Court, Anantapur dismissed the application on the following grounds:-

(i) Decree of divorce in HMOP No.22 of 2018 is ex parte in nature.

(ii) The respondent remained ex parte for the reasons best known to her in the present proceedings also.

(iii) No independent witnesses are examined to prove the means of the petitioner.

(iv) There is no evidence as to the status of the daughter staying with the petitioner particularly with regard to educational standard.

(v) Since the respondent remained ex parte, the Family Court is unable to pass any orders inviting the presence of children to know their interest and the Court has no opportunity to interact with the children.

(vi) The petitioner failed to place any evidence to show his entitlement for the custody of the children, hence, petition fails.

6. Heard learned counsel on both sides.

7. Upon finding the necessity of conciliation between the parties and ascertaining the views of children in the best interest of the children, the parties were directed to appear before this Court along with children and accordingly they have appeared.

8. During the interaction with the children, we noticed the fairness and affection among the children inter se, although the parties i.e., wife and husband are not cordial against each other.

9. Upon hearing the both the parties, children as well as their counsel and on perusal of the material available on record, the points that arose for determination in this appeal are:

1) Whether the appellant/father is entitled for custody of Minor Nos.2 and 3, as prayed for?

2) Whether the impugned orders dated 01.08.2022 passed by the learned Judge, Family Court are sustainable in law and on facts or require any interference? if so, on what grounds and to which extent?

3) What is the result of the appeal?

Point No.1 and 2 :-

Precedential Guidance in respect of Child Custody issues:-

10. [i] In Gaytri Bajaj v. Jiten Bhalla , (2012) 12 SCC 471 : (2013) 2 SCC (Civ) 425 the Hon’ble Apex Court para 14 of the judgment observed that:

“14. From the above it follows that an order of custody of minor children either under the p