-1- IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 101 OF 2008 Mr. Allison Simplicio D' Souza, Major of age, Resident of House No. 284, Udoim, Aldona, Bardez-Goa. ...... Appellant V e r s u s Mrs. Mrunalini D' Souza e Tavora Major of age, Resident of House No. 284, Udoim, Aldona, Bardez-Goa. ...... Respondent Mr. P. Lotlikar, Advocate for the Appellant. Mr. Sudin Usgaonkar, Advocate with Ms. P. Kamat, Advocate for the Respondent. CORAM: A. P. LAVANDE, J. DATE : 8 th April, 2009. ORAL JUDGMENT Heard Mr. Lotlikar for the Appellant and Mr. Sudin Usgaonkar for the Respondent. 2. Admit. By consent heard forthwith. 3. The controversy involved in the present appeal is regarding custody of minor child Astrea of the appellant and the respondent. -2- 4. By the impugned Order dated 05.05.2008, application filed by the appellant herein, who is the defendant in Matrimonial Petition No. 16/2006/B pending before the Civil Judge, Senior Division, Margao, has been dismissed. 5. By Order dated 29.09.2007 passed by this Court in Appeal From Order no. 73/2007, the appellant was permitted to take his daughter from the home of the respondent at 3.00 p.m. and to return her by 6.00 p.m. on ensuing Sunday and during rest of the period, the child was to be in custody of the respondent. The appellant filed application dated 12.03.2008 seeking custody of the minor child during May 2008 and for half of every long vacation in future and also sought permission to take the child out of State for holidays. The Trial Court by the impugned Order dismissed the application. 6. Mr. Lotlikar, learned Counsel for the appellant, submitted that the appellant being father of minor child, is also entitled to the custody of his daughter and there is absolutely no reason given by the Trial Court to reject the application. Learned Counsel submitted that the custody of the child be given for half of all the vacations in future 7. Per contra, Mr. Usgaonkar for the respondent submitted that there is absolutely no illegality or perversity in the impugned Order and the impugned Order is just and proper and no interference is called for with the same. However, Mr. Usgaonkar, upon taking instructions from the Respondent, who is present in the -3- Court, fairly submitted that respondent would have no objection if the custody of the minor child is given to the appellant for one third of May Vacation provided the custody of the child is given to the appellant only on every Sundays and not on Saturday as provided in Order dated 29.09.2007. 8. Astrea is aged four years four months. It is not in dispute that when Order dated 29.09.07 was passed by this Court, the minor child was aged two years ten months old. There is also no dispute that the child has been attending KG classes from June 2008. 9. It is well settled by a catena of decisions of the Apex Court that while considering the application filed by father/mother of the minor child for custody, the interest of the minor child has to be primarily considered and not the relative rights of the parents. Having regard to this principle and having regard to the fact that presently the minor child is attending KG classes, I am of the considered opinion, that the interest of minor child as well as of the parents would be served by passing the following Order : 1. The appellant shall be permitted to have the custody of the minor child during one third of all the vacations. The choice of the period during which the child will be with the appellant shall be that of the respondent. 2. The appellant shall be entitled to take the minor child on every Sunday at 9.00 a.m. from the respondent and the appellant shall deliver back the child at the house of the Respondent at 6.00 p.m. on the same day. -4- 10. The appeal stands disposed of in the aforesaid terms with no order as to costs. A. P. LAVANDE, J. arp/*