Rahul S/O Ashokrao Darokar vs Harshali W/O Rahul Darokar
2022 Latest Caselaw 6845 Bom

9.cwp.239.22.jud                                                                  1/6

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH, NAGPUR

                      CRIMINAL WRIT PETITION NO.239 OF 2022

Petitioner                 :       Rahul s/o Ashokrao Darokar,
                                   Aged about 33 years, Occupation : Labour,
                                   R/o. Jarud, Tah. Warud, District Amravati.

                                   - Versus -
Respondent                 :       Sau. Harshali w/o Rahul Darokar,
                                   Aged about 25 years, Occupation : Household,
                                   R/o C/o. Dilip Makode, Tarasawanga,
                                   Tah. Ashti, District Wardha.

                    =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                    Mr. R.M. Bhongade, Advocate for the Petitioner.
                     Mr. Mahesh Rai, Advocate for the Respondent.
                    =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

                   CORAM       :      VINAY JOSHI, J.

                   DATE        :      19th JULY, 2022.


ORAL JUDGMENT :-

Rule. Rule made returnable forthwith. Heard finally by consent of

the learned Counsel appearing for the parties.

02] The petitioner-father has posed a question to be answered as to who

would be the proper person to have interim custody of a minor female child

aged 2½ years, who is now 3 years and 4 months of age. The first Court i.e.

the Court of Judicial Magistrate First Class, leaned in favour of the petitioner-

father, whilst the appellate Court leaned in favour of the respondent-mother.

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By invoking writ jurisdiction, the petitioner-father has questioned the legality

and sustainability of the impugned order passed in appeal.

03] The petitioner got married with the respondent-wife on

16/05/2017. The couple had a female child born on 04/03/2019. The

marriage does not run smooth for long as due to matrimonial flue, the wife

started to reside separately with her parents from the month of August, 2021.

The child remained with the father for which both are fighting for custody.

04] The respondent-wife has filed application to the Magistrate in terms

of Section 12 of the Protection of Women from Domestic Violence Act seeking

multiple reliefs as made available under the statute. The wife has filed

application for interim custody of child, which was rejected. The said order

was reversed in appeal. The learned Counsel appearing for the petitioner-

husband strenuously argued that the appellate Court seriously fell in error in

reversing the order of the Magistrate. It is argued that the wife is financially

as well as mentally not capable to maintain child. She was of cruel nature as

she used to beat the child and thus the child also dislikes her. It is submitted

that in the month of August, 2021, the wife left matrimonial house leaving

child and thereafter never turned. During long span, she had even not asked

for visitation rights.

 9.cwp.239.22.jud                                                               3/6

05]           Per contra, the respondent-wife's learned Counsel supported the

impugned order by stating that having regard to the tender age of the child,

mother would be the proper option. It is submitted that the mother is running

a boutique as well as taking tuition and thus she is capable to maintain her

daughter. The wife has also levelled certain allegations against the husband

contending that it was his second marriage and the husband is liquor addict.

She expressed her desire to maintain her own kid for child's proper

upbringing.

06] Undisputedly, the child born on 04/03/2019 meaning thereby on

the date of applying to the Magistrate, the age of child was barely 2½ years.

In that context, the matter is to be viewed. Certainly, we must give regard to

the current age of child, which is barely 3 years and 4 months. The appellate

Court while reversing the order of trial Court expressed that welfare of child is

a paramount consideration. It is stated that since it was a female child, for the

physical, psychological and emotional development, mother would be the

proper custodian.

07] The legal position is no more res integra. In catena of decisions, it

is held that welfare of the minor is the prime consideration for deciding the

custody matters. The Court is not bound by mere legal rights of the parties,

but the factual circumstances relating to the welfare of child would take

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precedence. Undoubtedly, nothing can stand in the way of the Court

exercising its parens patriae jurisdiction in the matter.

08] It is to be remembered that the issue involved is about interim

custody of a minor child. Yet the evidence is to be recorded before the trial

Court. The learned Magistrate while refusing interim custody application

expressed that since wife is claiming maintenance, she has no source and,

therefore, she would not be in a position to maintain the child. The

respondent-wife has come up with an affidavit filed in this Court stating that

though earlier she was jobless, by the time, she started boutique, taking

tuitions and earning Rs.8,100/- per month. Her endeavour was to show her

financial capability to shoulder the responsibility of tender child. On the other

hand, the petitioner-husband makes out a case that he has admitted the child

in kindergarten, for which a receipt of payment of fees has been produced. It

was learnt that the distance between two places, where the parties are living,

is hardly 20-25 kms. The parties can have avail visitation rights without any

hindrance.

09] The core issue is, what would be the best option on the premise of

welfare of child. In series of decisions, it has been held that the mother is

entitled for custody of child which is below five years. In a reported case of

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Nithya Anand Raghavan vs. State (NCT of Delhi) and another - (2017) 8 SCC

454, the Supreme Court observed that guardianship of mother is of utmost

significance for development of a girl child's personality, especially when she is

around seven years of age, unless circumstances indicate that it would

harmful for her. I am aware that currently for the period for more than six

months, the child is living in father's family, however, that cannot be a sole

criteria in view of the child's extreme tender age. Though, it is stated that

there are female members in the father's family, however, hardly there can be

any option than mother for small female child. It is to be borne in mind that

the child was barely 3 years of age having different kind of requirements from

the parents. Needless to say that the mother can cater multiple needs of child,

especially having regard to the gender of child. In order to carve out

exceptions to the rule that mother would be custodian of a child below 5 years

of age, a specific case adverse to the mother has to be made out.

10] At present, there is nothing to suggest that welfare of child would

get staked if she lives with mother. When such type of dispute arose, the

question is of delicacy as in the fight of parents, the children would be

sufferer. The father is naturally supposed to devote time for his earning,

herein it is said that he is doing labour work. Per contra, the mother is doing

some miscellaneous work from her house for survival. Considering the very

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tender age of child and particularly her gender, it would be in the interest of

minor that at this growing age, she should live with mother. In that view of

the matter, the impugned order of the appellate Court cannot be termed as

unjust and contrary to law. In the circumstances, the petition stands rejected.

11] At this juncture, the learned Counsel appearing for the petitioner-

husband seeks to stay the order, as the petitioner desires to challenge the

order before the higher forum. It reveals that though the appellate Court has

directed husband to hand over child's custody to the mother, however, this

Court has granted stay, which was prevailing till date. Having regard to the

said fact, the impugned order of handing over custody shall be executed after

three weeks from the date of uploading of this order.

12] The petition is disposed of in the above terms. The rule stands

discharged.

(VINAY JOSHI, J.) *sandesh

Signed by:SANDESH DAULATRAO WAGHMARE Private Secretary to the Hon'ble Judge Signing Date:21.07.2022 17:07