1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.243 OF 2010 Sau.Ujwala Yuvraj Patil ... Appellant. Versus Yuvraj S/o Sahebrao Patil and another ... Respondents. ... Mr.V.P.Patil, advocate for the appellant. Mr.P.B.Patil, advocate for the Respondent. ... CORAM : S.V.GANGAPURWALA,J. Date : 11.10.2010. PER COURT 1. This is an appeal filed by the original applicant who had filed an application for custody of the minor i.e. Respondent Nos.2 and 3. 2. The appellant is the wife of Respondent 2 No.1. Their marriage was solemnised in the year 1994. The Respondent Nos.2 and 3 were born from the said wedlock of appellant and Respondent No. 1. Since the year 2000, the appellant and Respondent No.1 are residing separate and since the said date i.e. since the year 2000, the Respondent Nos.2 and 3 are residing with Respondent No.1. 3. The present appellant for the first time in the year 2006 filed an application for custody of minors - Respondent Nos.2 and 3. The said application was rejected by District Judge-1, Amalner. The appellant has assailed the said judgment and order in the present appeal. 4. Vide order dated25.3.2010, this Court had observed that as the matter is regarding custody of minor children and also that the parties agree to argue the appeal finally at the stage of admission had kept the matter for final disposal. Record and proceedings were also called. 3 5. Mr.Vinod Patil, learned counsel for the appellant contended that admittedly the appellant is the mother of Respondent Nos.2 and 3. She would know the best interest and welfare of the minors. In the year 2006, the Respondent No.1 has performed second marriage and is residing with the said lady. In such circumstances, the Respondent No.1 would not take care of the minor children. Even the minors are kept at the place of the sister of the Respondent No.1 for education. As they are not residing with the Respondent No.1 and in absence of the same, it is only the appellant who would be entitled to the custody of the said minor children. Mr.Patil, further submitted that the Respondent No.3 is a girl and it is mother only who would be in a position to know better the problems of a girl. On all these counts, Mr.Patil, learned counsel submitted that the custody should have been granted in favour of the appellant. 6. Per contra, Mr.Paresh Patil, learned counsel for the Respondent submitted that the appellant is residing separate from Respondent 4 No.1 since the year 2000 and till the year 2006, not once, the appellant had even expressed her desire to meet the children. According to him, the appellant was never interested to maintain Respondent Nos.2 and 3 and as such had not taken any efforts for all these years. He submitted that all these allegations of the Respondent No.1 having performed second marriage are false and are just made to suit her purpose. According to him, it is only the Respondent No.1 who would be in a position to maintain and impart good education to Respondent Nos.2 and 3. The appellant is not earning anything and is also residing in a remote village, where she would not be in a position to impart education to the children nor she would be in a position to maintain them. Mr.Patil, supported the judgment of the lower appellate Court. 7. With the assistance of the learned counsel for the respective parties, I have gone through the record and proceedings and have considered submissions made by them. It is a fact that the appellant is residing separate 5 since 2000 but till the year 2006, there is nothing on record to show that the appellant at any point of time had inquired about the welfare of the children. It is for the first time in the year 2006, she filed an application, till this date, the appellant had not shown any concern about the well-being of Respondent Nos.2 and 3 and thus Respondent Nos.2 and 3 were all along residing with the Respondent No.1. With a view to impart better education, the Respondent No.1 has kept the Respondent No.2 at Nandurbar, at his sister's place as it is a District Place. There is nothing on record to show that the Respondent No.1 is not taking proper care of Respondent Nos.2 and 3. The Respondent No.2 is now aged about 15 years and Respondent No.3 is aged about 12 years. They are grown up and it could not be in the interest of the minors even to unsettle them at this stage and to remove them from the custody of Respondent No.1 and to give it to the appellant. The same would be against the interest and welfare of the minors. Their education also would be in jeopardy. 6 8. During pendency of the appeal even effort was made to resolve the dispute by mediation and the same was also referred for mediation to advocate Mr.P.R.Patil, wherein the parties have appeared. Mr.Patil, submitted that the parties could not reach at any amicable settlement. 9. In light of all above facts, I do not find any error committed by the District Judge-1, Amalner, in rejecting the application of the appellant and the said judgment deserves to be confirmed. 10. At this stage, Mr.Vinod Patil, learned counsel for the appellant submitted that the relations between the parties are undisputed and even otherwise the appellant being the mother should have access to the minor children. This aspect also needs to be considered. The appellant being the mother deserves to be given access to the children for some period. Mr.Paresh Patil, learned counsel for the Respondent on instructions of his client states 7 that twice in a year the Respondent Nos.2 and 3 can temporarily remain with the appellant. Taking into consideration this aspect of the matter, I pass the following order : ORDER (i) The judgment of the District Judge-1, Amalner, impugned in the present appeal is confirmed. However, the Respondent No.1 shall allow access of the minors i.e. Respondent Nos.2 and 3 twice in a year to the appellant mother. The appellant shall be entitled for access to the Respondent Nos.2 and 3 for a period of five (5) days in Diwali Vacation and for a period of one week in Summer Vacation. The appellant shall take Respondent Nos.2 and 3 in the presence of the maternal uncle of Respondent Nos.2 and 3 and Sarpanch or Police Patil of village Devgaon, Tq.Parola, Dist.Jalgaon in Diwali Vacation and Summer Vacation with prior intimation to the Respondent No.1. The Respondent Nos.2 and 3 shall stay with the appellant for a period of five (5) days in Diwali Vacation and for a period of one week in Summer Vacation. After the lapse 8 of said period, the appellant along with maternal uncle of Respondent Nos.2 and 3 shall return them i.e. Respondent Nos.2 and 3 to the Respondent No. 1. (ii). The First Appeal is accordingly disposed of. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/fa24310