The Bombay High Court allowed an appeal challenging the judgment and order dated 15.6.2019 passed by the learned Principal District Judge in Guardian and Wards Case. The Court observed that it was the duty of the trial court to cause the appearance of the minor child before the court and hold the interview of the child in camera to know a view of the child supposedly with sufficient understanding.
Brief Facts:
The marriage of the respondent (applicant/husband) was solemnized on 17.6.2012 with the opponent/wife. They had a son from the said wedlock. A matrimonial dispute arose between the husband and wife. As per the allegations of the husband, the wife left him and did not return despite his efforts. He filed an application before the Woman Cell in the office of the Superintendent of Police and an application under Section 9 of the Hindu Marriage Act, 1956 for restitution of conjugal rights. The opponent/wife had also filed an application for a grant of maintenance under Section 125 of the Code of Criminal Procedure.
As per the contentions of the applicant, for better care and protection of the child, the applicant settled the dispute and withdrew the proceedings filed by him. The wife did not have a sound economical condition to maintain the child which is also understandable from her application for maintenance. In such circumstances, the applicant alleged, she would be unable to take care of the child. The husband is the father who is a natural guardian and can provide due facilities and take care of his education, therefore, he claimed custody of the child by filing the application.
On the basis of his evidence, the trial court allowed the application and directed the opponent/wife to hand over the custody of the child to the applicant/husband. The wife has challenged the judgment and order dated 15.6.2019 passed by the learned Principal District Judge, in Guardian and Wards Case No.9/2019, by this appeal.
Contentions of the Appellants:
The Learned Counsels for the Appellants argued that the trial court did not make the requisite inquiry before passing the order of handing over the custody of the child born out of wedlock. He further submitted that the Notice was not served properly and relying upon the report of the Bailiff, erroneously the application was decided ex parte. He further submitted that the inquiry regarding the desire of the child was also not carried out.
Contentions of the Respondent:
The learned counsel for the respondent argued that after service of the Notice, the wife failed to appear and, therefore, the trial court rightly considered the application as the evidence adduced by the applicant/husband remained unchallenged. He further submitted that the opponent/wife has no financial capacity to educate the child and on the contrary, the applicant/husband can take care of giving proper education to him and pray for dismissal of the appeal.
Observations of the Court
The Court noted that the paramount consideration in such matters is the welfare of the children. It was the duty of the trial court to cause the appearance of the minor child before the court and hold an interview of the child in camera to know a view of the child supposedly with sufficient understanding.
The word welfare used under Section 13 of the Act has to be construed literally and must be taken in the widest sense. The moral and ethical welfare of the child must be looked into. Though the provisions of the special statutes govern the rights of the parents, the paramount consideration is the welfare of the child. For ascertaining the welfare of the child, the trial court was bound to make a thorough inquiry keeping in mind that the paramount consideration is the welfare of the child.
The decision of the Court:
The Bombay High Court, allowing the appeal, held that the matter deserves to be remanded back for deciding the same afresh by giving an opportunity to the wife.
Case Title: X vs Y
Coram: Hon’ble Justice Urmila Joshi-Phalke
Case no.: FIRST APPEAL NO.1031 OF 2022
Advocate for the Appellant: Mr. R. L. Kadu
Advocate for the Respondent: Mr. A. J. Thakkar
Read Judgment @LatestLaws.com
Picture Source :
