DALVI ROSHAN (Smt.), J.: - The parties are wife and husband. They have 2 children, sons named Jehan and Sheroy. They shall be referred to as mother and father.

2. They applied for divorce by mutual consent in the above suit on 20th February, .2006. They filed consent terms. In the consent terms the mother gave up her claim to alimony or maintenance. She also gave up custody of both the children. The father was to have custody of both the children. The mother was to have access on second and fourth week ends and half school vacations.

3. The parties were married in 1992. Children were born in 1992 and 1998. The mother left the matrimonial home in 2004. They filed the divorce petition in 2006. The mother remarried in 2007.

4. At the time of the filing of the consent terms Jehan was 13 years and Sheroy was 7 years old. Jehan was studying in Standard VIII and Sheroy was studying in Standard IV.

5. The mother did not take access to the 1 children in the school vacations in 2006.

6. It is her contention that, that was because she did not want to disturb the children's studies. She married soon thereafter. She has now settled with her new husband in Vikroli. She claimed access during the last summer vacation of May, 2008. She was to hand over custody of the children to the father at the end of the May vacation. She did not hand over the custody as per the consent terms signed by them. She instead filed this Petition for modification of the consent terms. She has applied for grant of custody and change of school of the children.

7. On the face of the consent" terms she is in breach. The Consent terms came to be a part of the order of the Court. Having breached that order, she is in contempt. It I need hardly be mentioned that she should t have abided the order of the Court and returned the children to the custody of the father pending any application for modification of the consent terms made by her. She has not done that on the ground that the children never wanted to return to the father.

8. This change of heart has come at a very late stage. It has come after her remarriage and after she has settled with her new husband. It has come after the children were left to be cared for by the father for about 4 years. The father has not remarried. He lives with his mother and his two children at Parel. She lives with her present husband at Vikroli.

9. When she left the husband in 2004 she lived with her parents at Thane. She has stated that she did not take custody of the children then, because her parent's house was small in area.

10. The father has contended, and prima facie justifiably, that she did not take custody of the children before her marriage whilst she wanted to be alone and away from her children. It was during those times that the father cared for the children and kept their custody. He contends that now she has well settled. She has sought to take away the children to be used as her investment as she has advanced in age.

11. Various allegations are made by her in the petition to show how the father is unfit to have custody of the children. This is despite the fact, that upon whatever was the dispossession of the father, she had allowed him to have custody of the children in the consent terms and obtained the divorce and remarried thereafter.

12. She has produced xerox copies of certain documents showing expenses incurred for the children. Most of the documents are of the year 2008. It is seen that during the summer vacation when she kept custody of the children she incurred certain expenses. That is natural. She has produced certain bills of certain stores showing purchase of materials. These do not show who purchased the goods and for whom. She claims that the father did not incur sufficient medical expenses for medical treatment of the children, which she has done. The father has produced copies of medical prescriptions and bills• showing what he has done for the children. It is not understood how both the parties lay so much emphas

Click Here to Read the rest of this document