A.S. Oka, J.

On the earlier date, we had put the parties to the notice that the Appeal itself will be disposed of finally at the stage of admission.

2. Considering the controversy involved in the Appeal, we direct that in the judgment, the names of the parties shall be masked. The name of the Appellant shall be mentioned as 'A' and the name of the Respondent shall be mentioned as 'B'.

3. The issue involved concerns custody of two minor children of the parties. The male child was born on 29th October, 2006 and the female child was born on 1st January, 2000. It is not in dispute that the unfortunate male child suffers from Cerebral Palsy from birth and he is suffering from physical disabilities. It is stated that he is attending a special school.

4. A Petition was filed by the Appellant under Section 8 of the Guardians and Wards Act, 1890 (for short "the said Act") for custody of the children before the Family Court, Bandra at Mumbai. By the impugned judgment and order dated 15th July, 2014, the learned Judge of the Family Court has purported to dispose of the said Petition filed by the Appellant on the basis of statements made by the Respondent wife in an application dated 24th March, 2014 made by her in another Petition (Petition No.A2130/2010) filed by her seeking permission to withdraw the said Petition. The said Petition was filed for seeking a decree of divorce. By the impugned order, the learned Judge has purported to disturb the custody of the Respondent - mother of both the children. There are other directions issued under the impugned judgment and order regarding the payment of education and medical expenses, grant of access to the Respondent - mother to meet the minor children and other relevant aspects.

5. The question which arises for consideration is whether a Petition filed under Section 8 of the said Act praying for disturbing custody of the minor children can be disposed of by passing a drastic order of disturbing custody only on the basis of the consent of the contesting parties.

6. With a view to appreciate the submissions made across the Bar, it will be necessary to state here that to the Petition for custody filed by the Appellant, a written statement was filed by the Respondent - wife contesting the case made out by the Appellant - husband. In the written statement, it was contended that the Appellant - father being a Pilot working in Air India is very often away from the home and the handicapped child cannot be completely left in the care and custody of a third person. It is pointed out that the male child is attending a special school.

7. The Petition for custody was filed by the Appellant - husband on 23rd July, 2010. The aforesaid Petition being Petition No.A2130 of 2010 was filed by the Respondent - wife for decree of divorce.

8. An application was made by the Respondent - wife at Exhibit - 43 in Petition No.A2130 of 2010 seeking permission to withdraw the said Petition with liberty to file a fresh Petition. A copy of the said application has been annexed to an affidavit filed by the Respondent at page 312.

9. As far as the Petition for custody is concerned, a copy of Roznama has been annexed to the Memorandum of Appeal. The Roznama shows that on 30th April, 2014 both the Appellant and Respondent filed affidavits in lieu of examination-in-chief which are at Exhibits 50 and 51 respectively in the proceedings. Roznama further records that on 29th May, 2014 submissions of the parties were heard and the Petition filed by the Appellant was adjourned for judgment.

10. In the affidavit in lieu of evidence filed by the Respondent - wife, she has made a reference to averments made by the Appellant - husband on pages 28 and 35 of the Petition seeking custody of the children. The averments made in the said Petition on pages 28 and 35 are relevant for our consideration which read thus :

11. The first averment is on page 52 which reads thus :

"Even otherwise the petitioner has no objection if the respondent returns b