1 1. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.6602/2009 (Shivshaila w/o Parmeshwar Chamnar Vs. Parmeshwar s/o Sambhu Chamnar and Anr.) ----------------------------------------------------------------------------------------------------------- Office notes, office Memoranda of Coram,appearances, Court’s orders Court’s or Judge’s orders. or directions and Registrar’s orders ----------------------------------------------------------------------------------------------------------- Mr. SS Kazi, Advocate for petitioner; Mr.AM Gaikwad, Adv. for Respondent No.1. *** CORAM : K.U.CHANDIWAL ,J. DATE : 4 th October, 2010. ... 1) Learned Counsel for Respondent No.1 tenders a Rejoinder to affidavit in reply, taken on record, copy of which is reported to be served on the other side. 2) Heard extensively. 3) Two children, born out of the wedlock are the subject of controversy between the spouses. It is apparent, ignoring the welfare of the children, egoistic clash between the petitioner/wife and respondent/husband – Parmeshwar is the root cause. Several proceedings apparently are initiated between the spouse. 4) Regular Civil Suit No. 140/2007 was for grant of maintenance, where the petitioner/wife is showered with maintenance amount for the children at 2 Rs.600/- per month and Rs.1100/- for her maintenance. Another suit being RCS No. 184/2007 is filed by the respondent – Parmeshwar, seeking declaration of certain status, including challenge to the grant of maintenance. Third proceeding is of nature of criminal prosecution bearing RCC No.146/2006, initiated by respondent/husband. 5) The petitioner/wife initiated proceedings for execution of an Award in RCS No.140/2007, in which, husband filed his reply on 2nd July, 2007, clarifying he has moved Misc. CA No.77/2006, it is pending before the learned District judge at Ambejogai. 6) Mr.Gaikwad, learned Counsel appearing on behalf of the Respondent no.1/husband submits that it was a clear indication from the husband about he initiating proceedings and the wife with sinister motive has dodged the proceedings to be prosecuted deligently. In spite of knowledge by way of reply, the wife did not appear in MCA No.77/2006, resulting in grant of custody of the children in favour of respondent/husband – Parmeshwar. 7) A crucial question, that could be seen is, even though reply is filed in execution proceedings (Regular Darkhast No.10/2006) on 2nd July, 2007 before the 3 learned Judge, whether the petitioner/wife got its copy or knowledge in tune prior to date of order dated 25.10.2007, subject of challenge. I find there is no proof to illustrate that there was conscious knowledge to the petitioner/wife as regards on-going proceedings before the learned District Judge, subject of challenge in the present writ petition. 8) It was canvassed on behalf of respondent-husband that petitioner/wife has remarried on 20th May, 2006. It may be correct, however, yet to be established. There is word against word for this phenomena, which the parties instead of breaking their heads, should get resolved. 9) For the present, the fact remains that the two children are under the shelter of their mother, the petitioner herein. The children should not be treated as a chattel or casualty. Considering age, the umbrella of shelter and culture will be nurtured with force by wife than the husband. Welfare of children being paramount aspect, the petitioner/wife, being harbinger of well being, having sufficient means to maintain with additional maintenance to the tune of Rs.600/-, the order, directing custody of the children in favour of respondent 4 no.1-Parmeshwar, is uncalled for and consequently required to be set aside. 10)It is clarified, in spite of setting aside order of learned District Judge, subject of present petition, right vested in respondent no.1/husband, to seek custody of the children in changed circumstances, i.e. adjudication of RCC No.146/2006, establishing that the petitioner/wife has re-married, is unbridled. In the light of proof of re- marriage, the prospects and welfare of the children will be put in jeopardy or has become casualty or victim of parasites, and would be burdened in the new company of the petitioner/wife with her second husband. These aspects are kept open, to be addressed by both the sides; at proper stage. 11)For the present, the order under challenge, with the above set of facts, is set aside. No costs. (K.U.CHANDIWAL) JUDGE bdv/