The paramount interest of the child and the welfare of the child are the central legal principles established in the judgment.

JUDGMENT

VIBHA KANKANWADI, J. - Admit.

2. Though a separate Civil Application has been filed for the custody of the minors till the final hearing and disposal of the appeal; with consent of both the parties, since all the documents have been produced on record and especially when both the parties had not led oral evidence before the learned District Judge-1, Basmathnagar and matter was considered only on the point of submissions of both the parties by the Trial Court, the First Appeal itself is taken for final hearing at the admission stage.

3. Heard learned Advocate Mr. Y.B. Bolkar for the appellant and learned Advocate Mr. D.M. Shinde for the respondent.

4. It has been vehemently submitted on behalf of the appellant- mother that it is not in dispute that the marriage between the appellant and the respondent-husband was solemnized on 03.05.2013 as per the Hindu rites and they have two children - daughter Pranjal, aged 6 and son Prajwal, aged 2. Further, it is also not in dispute that the respondent-husband has filed Hindu Marriage Petition No.28/2020 for divorce. The appellant- applicant had filed Civil Miscellaneous Application No.8/2020 before learned District Judge-1, Basmathnagar, Dist. Hingoli for custody and her appointment as guardian under Section 25 of the Guardian and Wards Act, 1890. She had contended that she was treated well for the initial years, however, later on she was harassed by the husband and his family members. The husband used to beat her. Whenever the daughter used to get ill, inspite of accompanying the appellant along with her, the respondent used to send his brother and then used to raise suspicion over her character. Later on the husband's behaviour changed and he used to come under the influence of liquor and used to beat the wife. He used to be instigated by husband's uncle and thereafter there was demand of Rs.3, 00, 000/- for the construction of the house. Husband used to say that his brother has been given dowry of Rs.5, 00, 000/-, but he has received only Rs.2, 00, 000/-, and therefore, she should bring amount of Rs.3, 00, 000/-. He also threatened to perform second marriage if she fails to bring the amount. It was then the contention of the wife that husband took her on 16.04.2020 to Basmath for the work in the bank and told that the children should not be taken. She was then taken to her father's house at Basmath. Husband went by saying that he would go to the bank and come. But thereafter he gave a phone call and told that he is not in need of her and he would perform second marriage. Thereafter, on the same day the wife went to the matrimonial home at Gangalwadi, but she was threatened by husband and all other family members to kill. She was then driven out of the house along with the children. Then on the next day i.e. on 17.04.2020 his family members went to Basmath, opposed the applicant- wife, threatened her and her family members and forcibly took the children with them. Thereafter, the Hindu Marriage Petition was filed with concocted story. The children are minor. She had attempted to get the custody by making application under Section 97 of the Code of Criminal Procedure, 1973 before Judicial Magistrate First Class, Basmathnagar, however, it was refused by saying that it has civil angle, and therefore, she had filed the said application.

5. It has been further submitted on behalf of the appellant that in the say that was filed by the respondent-husband he has made wild allegations. Parties did not lead any evidence but only on the submissions the learned District Judge has decided the matter. He has not considered the legal aspects involved in the matter. The son of the parties is only two years old and in view of proviso to Clause (a) of Section 6 of the Hindu Minority and Guardianship Act provides for the custody of the child, who is below five years of age to the mother, as she is considered as the natural guardian. Though the Trial Court held that she had the custody of the mino