{1} WP 6826 OF 2022

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

29 WRIT PETITION NO.6826 OF 2022

1.

Anita Balu Chavn

Age: 33 years, Occu.: Household,

R/o. C/o. Bajranga Dudha Rathod,

At Post. Laul, Tq.Majalgaon,

Dist.Beed.

2.

Swapnil Balu Chavan

Age: 15 years, Occu.: Education,

R/o. As above.

3.

Shreyas Balu Chavan

Age: 13 years, Occu.: Education,

R/o. As above.

(Petitioners 2 & 3 being minor

U/g. Of Real mother Anita Balu

Chavan, Petitioner No.1)

..Petitioners

VERSUS

.

Balu S/o. Anna Chavan

Age: 35 years, Occu.: Service,

R/o. House No.J-11/12,

Aurangabad Central Jail Colony,

Harsul, Aurangabad.

Tq. & District Aurangabad.

At present residing at

Central Jail, Dhule, Dist.Dhule.

..Respondent

...

Advocate for Petitioners : Shri Bhagwan S. Kudale

Advocate for Respondent : Smt.Manjushri V. Narwade

...

CORAM : M.G.SEWLIKAR, J.

DATE : 1^st August, 2022

ORAL JUDGMENT :-

1.

Rule. Rule is made returnable forthwith.

{2} WP 6826 OF 2022

2.

Heard learned counsel for both the parties at the time of

admission for fnal hearing.

3.

Respondent and petitioner No.1 are husband and wife.

Petitioner Nos.2 and 3 are children from their marriage. Their

marriage is on the rocks, therefore, respondent fled an

application before the District Judge, Majalgaon under Sections 7

and 25 of the Guardian and Wards Act, for getting the custody of

petitioner Nos.2 and 3.

4.

During the pendency of the application, petitioners fled

application for production of documents at Exhibit-25 for leading

oral and documentary evidence. On 15^th June, 2022, the learned

District Judge rejected the application on the ground that both

the parties and their Advocates were absent despite calling them

repeatedly till 03:30 p.m. He, therefore, rejected the application

and posted the matter for argument.

5.

Shri B.S.Kudale, learned counsel for the petitioner submits

that this is a custody matter. The matter involving the important

rights of the parties cannot be decided without recording

evidence. He placed reliance on the Judgment of this Court in

Ratnamala Pandurang Zate vs Pandurang Udhav Zate [LAWS

(BOM)-2021-7-3]. Paragraph No.17 of the Judgment reads as

under :

{3} WP 6826 OF 2022

“17. The procedure that was adopted by the learned

Trial Judge was itself wrong. He ought to have given proper

opportunity to lead the evidence to both sides. The point,

which could not have been decided only on the basis of

afdavits have been considered in that way. The learned

Advocate for respondent though relied on Smriti Madan

Kansagra's case (supra), it can be seen that in that case

also there was oral evidence and the parties were allowed

to cross examine each other. That means, the procedure

that was contemplated was not merely on the basis of the

afdavits and this ought to have been considered by the

learned Trial Judge. This fact is also observed in Nil Ratan

Kundu's case (supra). At the costs of repetition that the

Hon'ble Supreme Court has stated that, "In deciding a

difcult and complex question, a Court of law should keep in

mind relevant statutes and the rights fowing there from,

but such cases cannot be decided solely by interpreting

legal provisions." Thereafter, how the guardian is to be

selected has been laid down, and therefore, for proving

comfort of the child, contentment, health, education,

intellectual development and favourable surroundings etc.,

an opportunity should be given to the parties to lead

evidence. This Court feels that since the proper opportunity

appears to have not been given to the parties to lead

evidence, it is necessary to relegate the matter back to the

Trial Court and in the meantime, till the decision of the said

application on its merits, the custody o