PER COURT :-

1. Petitioner-husband is seeking reversal of the order passed by the Family Court directing custody of the child aged below 2 years to be handed over to the respondent-mother and seeks custody of the child.

2. Facts are not in dispute such as petitioner and respondent are legally weeded husband and wife. A male child is begotten from the said wedlock on 12.06.2023.

3. It is the case of the petitioner that the respondent left matrimonial home. Proceedings came to be filed before the Family Court being petition D-3/2024 at the instance of the respondent-mother under the provisions of Guardians and Wards Act, 1890 (for short “the Act”). In the said proceedings, final relief is sought of the permanent custody of

the child. An application came to be moved for interim relief wherein his temporary custody is asked. Learned Family Court after hearing both sides passed impugned order dated 30.01.2024 directing handing of the custody to the mother on 02.02.2024. The father was permitted to meet child on first and third Saturday of every month in the Children Complex, Family Court, Pune between 1 PM to 2 PM. Father was also directed to deposit cost of Rs. 5,000/- with District Legal Service Authority, Aurangabad for using inappropriate language in the reply.

4. Learned counsel for petitioner submits that having regard to the medical evidence on record, it is clear that the respondent is unable to take care of the child. To support his submission, he has placed reliance on the certificate issued by the medical practitioner who has diagnosed her to be the patient of depression post delivery. The medical papers of Civil Hospital are also referred in order to contend that there is psychiatric illness to the respondent. Thus, it is his contention that on the basis of medical evidence on record, Family Court ought not to have order passed granting custody of child to respondent. It is also argued that the Family Court has granted final relief at the interim stage which is wholly impermissible in law. To support his submission, he placed reliance on the judgment of Hon’ble Supreme Court in case of State of U.P. Vs. Ram Sukhi Devi (2005) 9 Supreme Court Cases 733 and

Bukharee Aezazalee Makhadumalee Vs. State of Gujarat LAWS(GJH)-2013-2-22 .

5. On the other hand, learned counsel for the respondent supported the impugned order. It is his contention that there is absolutely no evidence in order to hold that the respondent is unable to take care of the child. He drew attention of the Court to the Medical Certificate which according to him does not indicate such incapacitation on her part. He placed reliance on the Medical Certificate filed along with Civil Application No 1590/2024 to indicate that she is capable of taking care of herself and her baby. It is his submission that relief granted by the Family Court is not final in nature though the custody is directed to be handed over. It is his submission that the burden is on the father to show that mother is unable to take care of the child below age of 5 years and in absence of any material to that effect, there is no reason to cause any interference in the impugned order. To support his submission he placed reliance on the judgment of Hon’ble Supreme Court in case of Roxann Sharma Vs. Arun Sharma (2015) 8 Supreme Court Cases 318 , Pushpa Singh Vs. Inderjit Singh 1990 Supreme Court Cases (Cri) 609 and the order passed by this Court in case of Swapnil s/o Dinesh Adhyapak and ors Vs. Mansi w/o Swapnil Adhyapak in Criminal Revision Application No. 60/2021.

6. There cannot be any dispute with regard to the proposition that the interest of the child and his welfare is of paramount importance. The Court, therefore, will have to see as to whether the interest of the child is taken into consideration by the Family Court while passing order impugned.

7. The Hon’ble Supreme Court in case of Pushpa Singh (supra) has held that there is burden on the father to show that the mother is incapable o