JUDGMENT :

1. The appellant husband who is the original respondent in Civil Misc. Appln. No. 45/2020 filed by respondent – wife under Section 8 of the Guardians and Wards Act, has challenged the order dated 03.03.2022 passed therein by the learned District Judge-1, Omerga, District Osmanabad (hereinafter referred to as “the trial Court”), in the present appeal.

2. The background facts can be summarised as under:

The appellant and respondent got married at Pune in accordance with the rites and tenets of Mohammedan Law on 19.05.2010. Out of the said wedlock, the respondent – wife gave birth to a boy named Arsalan on 21.09.2011 and a girl named Akira on 16.05.2014. At present Arsalan is aged about 11 years and Akira is aged about 8 years. Thereafter on 28.08.2019 on account of matrimonial dispute, the respondent alongwith children was forcibly driven out from her matrimonial house. It is alleged that the relatives of the appellant taken away the children from the custody of respondent – wife from her parental home at Aloor, on the pretext of giving chocolates to them. On 11.10.2021 respondent – wife filed proceeding under the provisions of Protection of Women from Domestic Violence Act in the Court of Judicial Magistrate (First Class) at Omerga, wherein the said Court granted only visitation right to the respondent to meet her children once in a month at Pune in the office of Protection Officer without disturbing the custody of minor children with their father. The said order of refusing the custody and only giving visitation right is not challenged by the respondent – wife. On 17.11.2020 Crime No.228/2020 was registered against in-laws including the distant relatives under Sections 498-A, 323, 504 and 506 read with Section 34 of the Indian Penal Code at Murum Police Station, Taluka Omerga at the instance of respondent – wife. Such matrimonial discord between the parties ultimately resulted into filing a proceeding under Section 8 of the Guardians and Wards Act by the wife in the trial Court as regards the custody of minor children. Thereafter also on 06.09.2021 respondent – wife filed application in the said proceeding for getting interim custody of the children. As against this, the appellant – husband had also filed application under Order VII Rule 11 and Section 151 of the Code of Civil Procedure for rejection of application on the aspect of jurisdiction. Both these applications were not decided prior to the impugned order dated 03.03.2022. Ultimately the present appellant has been directed to hand over the custody of both the children to respondent – wife. Hence, this appeal.

3. The learned Counsel for the appellant submitted written notes of argument by giving chronology of the facts which led to filing of this application under Section 8 of the Guardians and Wards Act by the respondent – wife. In addition to that, he also raised issue of jurisdiction and submitted that the learned trial Court, only on assumption and presumption, wrongly held that the children ordinarily resided at Aloor. On the aspect of welfare of the child and best interest of the child he submitted that the learned trial Court failed to appreciate specific provisions of Sections 17 and 25 of the Guardians and Wards Act. According to him, the appellant – father is residing in Pune which is admittedly a better place than Aloor where the respondent – mother resides. He claims that the appellant – father is financially much more sound than the respondent – mother, and therefore, can give better future to the children. He further submits that the parents of the respondent wife are labourer and it has also come on record that the respondent wife is not doing anything and she has not even claimed maintenance till today. As such, it can easily be inferred that the appellant – husband is in better position to take care of financial needs of the children who have already crossed 5 years of their age. As such, he prayed for setting aside the impugned order. He placed