IN THE SUPREME COURT OF INDIA

CIVIL APELLATE JURISDICTION

SPECIAL LEAVE PETITION (C ) NO. 8525 OF 2010

Vishnu & Ors.

…Petitioners

Versus

Jaya

….Respondent

O R D E R

Petitioner no.1 (hereinafter ‘the petitioner’) and the respondent used to

be husband and wife. The petitioner married her after the death of his first

wife who had left behind a two and a half year old son. The petitioner and

the respondent are now separated by a decree of divorce obtained by the

former. The respondent has filed an appeal against the decree but there is no

stay in the pending appeal.

On July 15, 2003 the petitioner’s son Parag (eleven and a half years

old) from his first wife died by falling into a well. The petitioner was then

away from home. He suspected that the respondent had killed the child from

his first wife and instituted a criminal case against her under section 302 of

the Penal Code. The respondent was put on trial in which her two sons from

the petitioner deposed against her. Anyway, the trial ended in her acquittal.

The death of the petitioner’s son from his first wife completely broke

down his marriage with the respondent and he eventually obtained a decree

of divorce against her. For past seven years, as also noted by the High Court

the petitioner and the respondent have been engaged in a series of litigation.

The present SLP arises from the proceedings for the custody of their

two children (Kumar Gaurao and Kumar Kunal aged 11 years and 9 years

respectively) instituted on the basis of an application filed by the respondent

under sections 7 and 9 of the Guardian and Wards Act and registered as

Misc. Civil Application No.158 of 2008 in the court of the District Judge- 2,

Jalgaon. The District Judge by his order dated March 25, 2009 rejected the

respondent’s petition and left the two children in the custody of their father,

the present petitioner. In appeal by the respondent, the High Court of

Bombay, Aurangabad Bench by its judgment and order dated February 3,

2010 passed in FA No.887 of 2009 with Civil Appeal No.5044 of 2009

reversed the order of the District Judge and directed that the custody of the

two children be given to the respondent wife within 15 days of the date of

the order. The petitioner, the father of the two children has now brought the

matter to this court.

2

When the case was called out, apart from the counsel for the

petitioner, the counsel for the respondent was also present on caveat. We

were informed that not only the petitioner and the respondent were present

in court, but the petitioner had also brought along the two children whose

custody is the subject matter of the dispute. We, therefore, decided to pass

any order in the matter only after meeting the two children and the petitioner

and the respondent. After rising from the court at 2pm, we met the two

children and their two parents, one by one, in the chamber. Certain facts that

came to light from the meeting may be enumerated as follows:

1. The elder child, Kumar Gaurao is slightly mentally retarded.

He is more comfortable speaking in Marathi. Nevertheless,

he made his wishes quite clear to us. The younger child,

Kumar Kunal, is perfectly normal and speaks freely in

Hindi.

2. Both the children live in a house at Bhusawal with their

paternal grandmother. Both of them are going to schools.

The younger boy is in class five. The paternal aunt of the

children (petitioner’s sister) lives close by.

3

3. The petitioner is a member of the Railway Protection Force.

Till sometime ago he was posted at Bhusawal and lived

there together with his mother and children.

4. Sometime ago, he has been transferred to Kalyan (according

to him, to Mummar, 2 or 3 stations beyond Kalyan) and he

can no longer live at Bhusawal. (This was the main ground

on which the High Court held that he was not in a position to

look after the children properly). According to the petitioner,

he did not take the