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2023 Supreme(Bom) 1901
IN THE HIGH COURT OF BOMBAY
Urmila Joshi Phalke, J.
Urmila Sumedh Bawaskar - Appellant
Versus
Sumedh Sudhakar Bawaskar - Respondent
First Appeal No. 1031 of 2022
Decided On : 13-04-2023
R.L. Kadu, Advocate, A.J. Thakkar, Advocate
IMPORTANT POINT
The paramount consideration in custody disputes is the welfare of the child, necessitating a thorough inquiry into the child's needs and desires.
Headnote:
CUSTODY - GUARDIANSHIP AND WARDS - Hindu Marriage Act, 1956; Code of Criminal Procedure, 1973; Hindu Minority and Guardianship Act, 1956 - The court emphasized that the paramount consideration in custody disputes is the welfare of the child, as established in various Supreme Court rulings. The trial court's failure to conduct a thorough inquiry into the child's welfare and desires, particularly through an in-camera interview, was a significant oversight. The court highlighted the need for a comprehensive assessment of the child's best interests, which was not adequately addressed in the initial proceedings.
Fact of the Case:
The appellant (wife) challenged the trial court's decision granting custody of their son to the respondent (husband) after a matrimonial dispute. The husband claimed the wife was unable to care for the child due to financial constraints and her refusal to cohabit, while the wife argued that she was not given a fair opportunity to contest the custody application.
Finding of the Court:
The court found that the trial court had not properly served notice to the wife and had proceeded ex parte. It noted that the trial court failed to conduct a necessary inquiry into the child's welfare, particularly neglecting to ascertain the child's desires through an interview.
Issues: Whether the trial court properly served notice to the opponent/wife and whether it adequately considered the welfare of the child in its custody decision.
Ratio Decidendi: The court reiterated that the welfare of the child is the paramount consideration in custody disputes, as established by the Hindu Minority and Guardianship Act, 1956. It criticized the trial court for not conducting a thorough inquiry into the child's welfare and desires, which is essential for a just decision.
Final Decision: The appeal was allowed, the trial court's order was quashed, and the matter was remanded for fresh consideration, ensuring both parties had the opportunity to present their case.
JUDGMENT/ORDER
1. By this appeal, the appellant (opponent/wife) challenges judgment and order dtd. 15/6/2019 passed by learned Principal District Judge, Buldana in Guardian and Wards Case No.9/2019. The parties are hereinafter referred as per their original nomenclature.
2. Brief facts necessary for disposal of the appeal are as under: The marriage of the respondent (applicant/husband) was solemnized on 17/6/2012 with the opponent/wife. They had a son Arhanshubham from the said wedlock who was born on 7/5/2013. The matrimonial dispute arose between the applicant/husband and the opponent/wife. As per the allegations of the applicant/husband, the opponent/ wife was not ready to cohabit with him and was insisting to stay separately. As he had not listen to her, she left the company of the applicant/husband. He had taken efforts to fetch her back. However, she did not turn up and, therefore, he filed an application before the Woman Cell in the office of the Superintendent of Police at Buldana. He had also filed an application under Sec. 9 of the Hindu Marriage Act, 1956 for restitution of conjugal rights. The opponent/wife had also filed an application for grant of maintenance under Sec. 125 of the Code of Criminal Procedure.
3. As per the contentions of the applicant/husband, due to their matrimonial dispute, their ward is suffering from serious ailments. For better care and protection of the child, the applicant has settled the dispute and withdrawn the proceedings filed by him under Sec. 9 of the Hindu Marriage Act. The opponent/wife is not having sound economical condition to maintain the child. As the opponent/ wife had filed an application for grant of maintenance, it is sufficient to show that she is unable to maintain herself. In such circumstances, she is unable to take care of the child. Now, their child has attained the age of six years and the applicant/husband is a natural guardian. The child requires special care and treatment which opponent/wife cannot give. The applicant/husband had admitted his son in Joseph English School. However, the opponent/wife left the matrimonial home and now his minor son is unable to attend the school. Due to the said conduct of the opponent/wife, the academic career of the minor child is affecting. He further alleged that the opponent/wife is not allowing the applicant/husband to meet the child and depriving him from love and affection of his son. As the opponent/wife is residing at the mercy of her parents, she cannot take care of the child. On the other hand, the applicant/husband is the father who is a natural guardian and can provide due facilities and take care of his education and, therefore, he claimed custody of the child by filing the application.
4. Though the Notice of the said application is served on the opponent/wife, she failed to appear before the trial court and, therefore, the application proceeded ex parte. The applicant/husband has not entered into the witness box. On his behalf, his father Sudhakar Udaybhan Bawaskar adduced the evidence vide Exhibit-13. On the basis of his evidence, the trial court allowed the application and directed the opponent/wife to hand over the custody of the child to the applicant/husband.
5. The opponent/wife has challenged the judgment and order dtd. 15/6/2019 passed by learned Principal District Judge, Buldana in Guardian and Wards Case No.9/2019, by this appeal.
6. As per the grounds raised by the opponent/wife, the Notice was not served upon her properly and the trial court proceeded by passing ex parte order. Thus, an opportunity was not granted to challenge the application. She prayed for remand of the application by affording her an opportunity to challenge the grounds raised by the applicant/husband.
7. Heard learned counsel Shri R.L.Kadu for the opponent/wife and learned counsel Shri A.J.Thakkar for the applicant/husband.
8. Learned counsel Shri R.L.Kadu for the opponent/wife submitted that the trial court did not make requisite enquiry b
