In custody disputes, the welfare of the child is the paramount consideration, which may override presumptive custody rights based on legal frameworks.

JUDGMENT :

Shailesh P. Brahme, J.

1. Heard both sides finally at the admission stage with their consent.

2. Appellant/wife has taken exception to the judgment and order dated 18.12.2023 passed by Learned District Judge, Nilanga in Civil M.A No.1 of 2021 thereby granting custody of minor son/Akib to respondent/husband, reserving visitation right of the appellant.

3. During pendency of appeal by way of interim order handing over of custody was stayed vide order dated 12.03.2024. The respondent was granted visitation right on every sunday vide order dated 19.06.2024. Due to practical difficulties, the order was modified on 25.06.2024. By further order dated 24.10.2024, the handing over of temporary custody was directed to be before Registrar (District Superintendent,Bidar). Despite above orders, appellant neither handed over temporary custody to the respondent nor could he exercise visitation right. Though parties were directed to remain present before court, the appellant was not present on 20.03.2024.

4. Contempt Petition No.715 of 2024 is filed for taking action against the appellant for defiance of the interim orders of High Court. By order dated 21.11.2024 matter was adjourned. Appellant was again directed to produce the child before the Court on the next date. She was absent on 05.12.2024. The notice of contempt in a prescribed format was issued to the appellant. In this manner, custody of the minor/Akib remained with the appellant till this date. By my previous order dated 16.06.2025, child was directed to be produced on 30.06.2025. Again on the ground of illness of the appellant, she and her son abstained from remaining present.

5. On 14.07.2025, Learned counsel for the appellant tendered on record affidavit disclosing illness of the appellant which prevented her from attending the Court on 30.06.2025. I interacted with the minor in the chamber on 14.07.2025. He showed his disinclination to stay with his father/respondent. The merits of the matter and legal position need to be examined independently.

6. Appellant and respondent were married on 31.10.2010. Akib is born on 27.10.2015. He is of 9 years and 9 months old. Appellant has withdrawn from the company of the respondent since 10.06.2020. She is staying at her parent’s place at Bidar with minor son. Respondent is residing at Tq.Nilanga,Dist.Latur. Respondent filed Civil M.A No.1 of 2021 under Section 7 of The Guardians and Wards Act,1890 (hereinafter referred to as ‘Act’ for the sake of brevity and convenience) before Learned District Judge, Tq.Nilanga praying for custody of Akib and declaration of his guardianship over Akib.

7. It is contended in the application that appellant had caused harassment to the respondent and she was not interested in co- habitation. She had a paramour. She left his company on 10.06.2020 alongwith her son. It is contended that in all seven members of the family of the appellant were residing in the room. No proper care was taken about health and education of a child. Respondent was ready to provide all comforts to the child. Hence, for seeking custody and declaration, application was filed.

8. Appellant contested the application by stating that she was being ill treated on count of dowry. She was running a clothes business and she was providing every care to Akib for his health and education. It would be harmful to handover the custod