Anita Balu Chavan And Others vs Balu Anna Chavan
2022 Latest Caselaw 7454 Bom

                                   {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 :      1st 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 of both the children deserves to be given to the mother."

6. I fnd substance in the contentions raised by the learned

counsel for the petitioners. However, this application was

{4} WP 6826 OF 2022

rejected because of absence of the Advocates and the parties.

Shri Kudale, learned counsel for the petitioners submits that

parties should not sufer because of the mistakes committed by

the Advocates. He is right in making this submission. Therefore,

costs is to be paid by the Advocates themselves.

7. In view of this, petition is allowed.

8. Learned District Judge, Majalgaon, shall permit the parties

to lead oral and documentary evidence subject to costs of

Rs.500/- each to be paid by both the Advocates for the

petitioners and respondent. Rule is made absolute accordingly.

( M.G.SEWLIKAR ) JUDGE SPT