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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CIVIL APPLICATION NO. 5828 OF 2022

IN

FIRST APPEAL NO.792 OF 2022

SALIM YOUSUF JAMADAR

VERSUS

RESHMA SALIM JAMADAR

....

Mr. D.R. Jethliya, Advocate for the Applicant

Mr. Parag V. Barde, Advocate for the Respondent

….

CORAM : SHRIKANT D. KULKARNI, J.

DATE : 20^th APRIL, 2022

PER COURT:-

1.

It is an application for stay moved by the appellant /

husband.

2.

Heard Mr. D.R. Jethliya, learned counsel for the

appellant / husband and Mr. Parag Barde, learned counsel for

the respondent / wife at length.

3.

The matrimonial discord between the parties has

resulted in fight for the custody of children.

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4.

The parties to the appeal entered into wedlock on

19.05.2010 at Pune according to Mohammedan law. Out of

wedlock, they blessed with one male child namely Arsalan and

female child namely Akira. Now both children are minor. The

criminal proceedings on the basis of F.I.R. lodged by the wife at

Murum Police Station and Domestic Violence Act before the

Judicial Magistrate, First Class at Omerga are born. The

respondent / wife filed proceedings under Section 8 of the

Guardians and Wards Act, 1890 before the District Judge at

Omerga and sought custody of the children. The interim custody

was also sought by the wife by moving an application dated

06.09.2021. The appellant / husband raised objection and

prayed for rejection of the application by taking aid of Order VII

Rule 11 of the Code of Civil Procedure. The learned District

Judge-1, Omerga, after hearing both the sides and perusing the

papers was pleased to allow the application filed by the

respondent / wife and directed to the appellant / husband to

hand over the custody of children to his wife within two weeks

from the date of order.

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5.

Feeling aggrieved by the impugned order passed by the

learned District Judge, Omerga in Civil Misc. Application No. 45

of 2020, the appellant / husband has preferred this appeal on

various grounds and it is under scrutiny and inter alia prayed

for stay.

6.

Mr. Jethliya, learned counsel for the appellant

vehemently submitted that the impugned order passed by the

District Judge-1, Omerga is without jurisdiction and liable to be

stayed. The learned District Judge did not consider the issue of

jurisdiction, though specifically raised by the appellant, which

has resulted in causing injustice to the appellant. He submitted

that for more than two years the children are residing with the

father / appellant. The appellant is providing the best education

to his children, who is resident of Pune. The best interest of the

children is being taken care of by the father. On the other hand,

the wife is residing at remote village, where no education

facility is available. The wife is given visiting rights in view of

order passed by the Judicial Magistrate, First Class in the

Domestic Violence Act proceedings. Mr. Jethliya has also

referred various citations during the course of argument in

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order to support his submissions. He, therefore, urged to grant

stay.

7.

Per contra, Mr. Barde, learned counsel for the

respondent / wife supported the impugned order passed by the

learned District Judge, Omerga. He submitted that the

respondent being mother of the children, may look after them in

a better way than the father. The appellant / father is doing

transport business and always out of home to look after his

business. There is nobody to look after the children in the home.

The learned District Judge has taken into consideration all the

aspects and rightly allowed the application. The learned District

Judge has also taken into consideration the jurisdiction point

raised by the appellant / husband and turned down the same

though specific point is not framed. He submitted that there is

no need to stay the impugned order.

8.

I have considered the submissions canvassed by the

le