The welfare of the minor is of paramount consideration in custody matters. A father who is facing trial under the POCSO Act and is accused of molesting his own daughter cannot be given custody of the son.

JUDGMENT

1. Heard.

2. Admit. Both these appeals are being disposed of by common order as they arise out of the same judgment.

3. Facts leading to these appeals can be stated succinctly as under :-

Appellant No. 1 in First Appeal no. 1178/2018 and the appellant in First Appeal No. 1774/2018 were wife and husband respectively. Their marriage was solemnised on 18.05.2001. For convenience, the appellant No. 1 in First Appeal No. 1178/2018 is hereinafter referred to as "appellant-wife" and appellant in First Appeal No. 1774/2018 is hereinafter referred to as "appellant-husband".

4. Appellants No. 2 and 3 in First Appeal No. 1178/2018 (respondents No. 2 and 3 in First Appeal No. 1774/2018) are the children born out of the wedlock. At the time of filing of the petition for custody under Section 25 of the Guardians and Wards Act, respondent No. 2 - daughter was 9 years of age and respondent No. 3- son was 5 years of age. It is an admitted position that the marriage of the appellants was dissolved by a decree of divorce by the competent Court. The appellant-wife and the children had filed Regular Civil Suit no. 32/2008 for partition. Against the decision in Regular Civil Suit No. 32/2018, the appellant-husband had preferred Regular Civil Appeal no. 55/2011 in which, the parties arrived at compromise and it was agreed that the appellant-husband would have the custody of the daughter and the son. It seems that this compromise was not acted upon and the custody of the children remained with the mother i.e. appellant-wife. The appellant-husband filed Civil Application no. 76/2011 for custody of children in Was him Court. The same was returned for presentation in proper Court. Accordingly, it came to be instituted in District Court, Hingoli and it came to be renumbered as Civil Application No. 18/2013.

5. Appellant-husband alleged that appellant-wife is a teacher. In the year 2006, she was transferred to Kolgaon, District Hingoli. She started living at Kolgaon along with the children. The appellant-wife admitted the daughter in Dadasheb Ghadge Patil Vidyalaya, Trimurti Nagar, Newasa Phata, Tq. Newasa, Dist. Ahmednagar in 3rd standard. It is a Boarding School. The son was taking education in Nursery. The son had a snake bite in the month of September 2011 because of the negligence of the appellant-wife. Therefore, the appellant-wife is not capable of taking care of the children. She is neglecting them. The appellant-wife leaves house at 9.00 am and comes back at 6.00 pm. There is no one to look after the children. Therefore, the minor children are being neglected. The children often remain ill. The appellant-wife had admitted in a letter written by her to the appellant-husband that she was operated for Fibroid prior to marriage and she had a love affair before marrying the appellant-husband. He alleged that having regard to this aspect of the matter, the appellant-wife is unable to give proper upbringing to the children. He, therefore, sought custody of the children.

6. Appellant-wife filed written statement at Exhibit 10. She admitted marriage between her and the appellant-husband and that the children were born out of the wedlock. She denied all the other allegations in toto. It is alleged by the appellant-wife that the appellant-husband doubted her chastity and subjected her to beating. He neglected the children. She had filed application for maintenance for herself and for the children in which maintenance at the rate of Rs. 2,500/- per month for each of the child was awarded. She and children had filed Regular Civil Suit no. 32/2008 which was decreed on 28.03.2011, against which the appellant-husband preferred appeal. After divorce, the appellant-husband married a second wife. The appellant-husband is seeking custody of the children just to avoid the payment of maintenance.

7. It appears that the learned District Judge - 2, Hingoli awarded the custody of both the children to the appellant-husband which was challenged by the appellant-wife vide