The Bombay High Court partly allowed an appeal filed against the order dated 12.01.2023, passed in Criminal Bail Application filed by the Respondent. The Court observed that the learned trial Court should have discussed the material on record by considering the welfare of the child and the capacity of either of the parties and then should have come to the conclusion as to who is in a better position to take care of the welfare and interest of the minor child.
Brief Facts:
The Respondent is the mother of child Kush, who is of 10/11 years of age at present. According to the Respondent, she was driven out from the house of her husband by the present appellants and they forcibly snatched Kush from her at the relevant time. As such, she was constrained to file the aforesaid Civil Misc. Application for getting his custody. The appellants resisted the said application by filing an application at Exhibit-18 and contended that they never drove out Respondent from their house but the Respondent, in fact, had raised a quarrel and left their house leaving Kush with them. According to the appellants, they, in fact, maintained Kush in a proper way and also gave him an education by getting him admission to a reputed school.
The learned trial Court, after considering the contentions and on the basis of evidence on record, decided the application and granted custody of Kush to Respondent ― mother Hence, this appeal.
Contentions of the Appellant:
The learned counsel for the Appellant submitted that minor son is in the custody of appellants, which is not at all adverse to the interest of Kush. Moreover appellant no.1 is a retired person getting pension and, therefore, he can very well look after the welfare of the child, who is taking education at Bhusawal in a reputed school. He pointed out that the learned trial Court did not consider the evidence adduced by the appellants at all and merely handed over custody of minor Kush by observing that Respondent-mother is the natural guardian of the child, and she can look after his education and welfare. He pointed out that the learned trial Court, despite having interaction with the child, who was willing to stay with the appellants, ignored the said fact. His main contention is that the learned trial Court did not utter anything as regards the welfare of the child, which is the paramount consideration for deciding custody matters.
Contentions of the Respondent:
The learned counsel for the Respondent supported the impugned order and submitted that the mother being the natural guardian is entitled to the custody of her son. Moreover, as per Section 6 of the Hindu Minority and Guardianship Act, 1956, the custody of the child needs to be given to the mother only since the appellants are not natural guardians.
Observations of the Court:
The Court noted that the learned trial Court has merely stated contentions of the rival parties, observations in case laws, relied upon by the parties and their respective evidence. However, nothing is there in the impugned order in respect of the welfare of the child in light of the facts and material produced by the appellants. The record and proceeding show that the appellants have produced on record a number of documents, which are exhibited, but nothing is discussed about the same.
The Court observed that the learned trial Court should have discussed the material on record by considering the welfare of the child and the capacity of either of the parties and then should have come to the conclusion as to who is in a better position to take care of the welfare and interest of the minor child. The matter needs to be remanded back to the learned trial Court for considering the valuable aspect of the welfare of the child in the light of evidence on record and to make an objective analysis to that effect. The capacity of either of the parties to safeguard the welfare of the child has to be discussed afresh by considering the evidence adduced by the parties.
The decision of the Court:
The Bombay High Court, partly allowing the appeal, held that the impugned judgment and order dated 12.01.2023 passed by the learned District Judge were set aside and the matter is remanded back to the learned trial Court for deciding it afresh.
Case Title: Vijay Ramlal Pival & Ors. vs Smt. Chaitali Chetan Pival
Coram: Hon’ble Justice Sandipkumar C. More
Case no.: FIRST APPEAL NO. 489 OF 2023
Advocate for the Appellant: Mr. A. G. Talhar
Advocate for the Respondent: Mr. P. R. Nangare
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