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2022 Supreme(Bom) 859
IN THE HIGH COURT OF BOMBAY(BENCH AURANGABAD)
S.G. DIGE, J.
Ravindra S/o Prakash Kharat – Appellant
Versus
Kalpana W/o Ravindra Kharat – Respondent
First Appeal No. 1272 of 2022
Decided on : 05-07-2022
Advocate Appeared:
For the Appellant : Mr. Y. K. Bobade
For the Respondent: Mr. P. P. Uttarwar, Mr. P. S. Mundhe
The welfare of the child is the paramount consideration in matters concerning a minor, and the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
Headnote:
Guardians and Wards Act - Custody - Section 25 - Section 6(a) of the Hindu Minority and Guardianship Act, 1956 - The court granted permanent custody of the minor child to the mother (respondent) based on the welfare of the child being the paramount consideration. The court emphasized the importance of the mother's love and affection for a child of tender age and considered the mother as the more suitable custodian. The court also referred to the legal provision stating that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
Fact of the Case:
The mother filed an application under section 25 of the Guardians and Wards Act, 1890 claiming permanent custody of her minor son Kartik, who was in custody of the appellant. The court considered the strained marital relations between the parties and the welfare of the child as the paramount consideration.
Finding of the Court:
The court found that the welfare of the child is the paramount consideration and granted permanent custody of Kartik to the respondent, considering the mother's love and affection and her ability to provide proper care for the child.
Issues: The issues involved the custody of the minor child Kartik, the suitability of the mother and father as custodians, and the application of relevant legal provisions.
Ratio Decidendi: The court held that the welfare of the child is the paramount consideration and that the mother is more suitable to have the custody of a child of tender age. The court also referred to the legal provision stating that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
Final Decision: The court partly allowed the appeal and granted custody of Kartik to the respondent until he attains five years of age, in accordance with Section 6(a) of the Hindu Minority and Guardianship Act, 1956.
JUDGMENT :
1. This appeal is directed against the order passed by the learned District Judge-6, Aurangabad in Civil M.A. No.40/2022 directing that the permanent custody of the minor child Kartik shall be given to his mother (respondent).
2. The mother (respondent) had filed the application under section 25 of the Guardians and Wards Act, 1890 claiming permanent custody of her minor son Kartik, who was in custody of appellant.
3. The respondent and the appellant got married in February, 2019. Out of their wedlock, two sons namely Kartik and Atharv are born. Kartik is 2 and 1/2 years old. The marital relations between the appellant and the respondent are strained. There were litigations between them. After that, they resided together to solve the disputes, but in vain. The respondent is residing with her parents. Minor Kartik is in custody of the appellant, whereas the younger son Atharv is in custody of the respondent. In application it was alleged that the appellant is a teacher. So he remain out side the house for whole day. He cannot take care of the minor Kartik. There is no one in the house of the appellant to look after son Kartik. Kartik is 2 and 1/2 years old. Hence, his custody was sought permanently by the respondent.
4. The husband (appellant) filed say to the said application. He denied all the allegations made against him. In the say, it is stated that the respondent is harassing the appellant. The respondent herself has left the minor Kartik with the appellant. The respondent has not inquired about minor Kartik for one year. The appellant has tried to stay with the respondent, but the respondent is not giving response to the efforts of the appellant. It is further stated that the appellant is taking proper care of a minor Kartik. The minor Kartik is taking education in Anganwadi. The respondent is not able to take proper care of minor Kartik. The respondent is pressurizing the appellant to live separately from his parents. The respondent’s behaviour with the minor son Kartik is not proper. The appellant is trying to save the future of minor Kartik. The place where the respondent is at presently residing is not suitable for stay of minor Kartik. The appellant is father of Kartik. Therefore, it is in the interest of the child the father should have custody of minor child.
5. The learned District Judge considering the evidence on record came to the conclusion that the welfare of the child is paramount consideration and for a child of 2 and 1/2 years, undoubtedly, the mother would be the proper person to have the custody of the child. The appellant is teacher, when he goes for duty Kartik would remain with the old parents of the appellant. Thus they may not be in a good position to take overall care of Kartik. As against this, the respondent is residing with parents and married brothers. Respondent has no job, for whole day she can look after Kartik. Moreover, there are other two family members in the family, who are also available with the respondent to look after the minor. The younger brother of Kartik is already in custody of the respondent. Thus, Kartik may get company and love and affection of younger brother. Hence, the learned District Judge directed to give permanent custody of Kartik to the respondent. The visiting rights are given to the appellant on every Saturday of each month between 11.00 a.m. to 2.00 p.m. The appellant is given liberty to have talk with Kartik on mobile phone on every Sunday in between 10.00 a.m. to 11.00 a.m.
6. Heard Mr.Y.K. Bobade, the learned counsel for the appellant and Mr.P.P. Uttarwar, the learned counsel for respondent.
7. The learned counsel for the appellant in assailing the impugned judgment of the learned District Judge raised following contentions :-
(a) The application filed by the respondent was required to be filed under section 12 of the Guardians and Wards Act, 1890.
(b) The learned District Judge ought to have considered that the love and affection of the father is equally i
