1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.887 of 2009 with C.A. NO. 5044 of 2009 Sow.Jaya w/o Vishnu Phalak, Aged 34 yrs. Occu.Household, r/o. 346/J Ashaniketan, Arera Colony, Bhopal, Madhya Pradesh, At present Residing at Jalgaon. ...APPELLANT VERSUS 1. Shri Vishnu s/o Madhukar Phalak, Aged 42 yrs. Occu. Service, r/o Railway R.P.F., Bhusawal, Bach No.656, Bhusawal, Dist. Jalgaon. 2. Kumar Gaurao s/o Vishnu Phalak, Aged 10 years, Occu. Education. 3. Kumar Kunal s/o Vishnu Phalak, Aged 8 years, Occu. Education Both minor, under guardianship of their father i.e. respondent no.1. ...RESPONDENTS ... Mr.V.B.Patil, Adv., for the appellant. Mr. B.R.Kedar, Adv., for respondent nos. 1 to 3. ... CORAM: K.U. CHANDIWAL, J. DATE :3rd Feb.,2010 *** 2 PER COURT : 1. Admit. Counsel for respondents waive service. Heard forthwith. 2. The marital knot between the husband and wife in the year 1994 could not have its positive impact on its prosecution as bickerings commenced from the very inception. The husband had a son, namely, Parag, from his earlier wedlock, who was two years, two months old at the time of his marriage with the wife Jaya. Unfortunately, Parag, at his age of 11/12 years expired on 13.7.2003. It was alleged, it was a suicide abated by wife Jaya, however, subsequently, the husband, by a private complaint, initiated prosecution in terms of Section 302 of IPC against Jaya and her mother, branding homicidal death of Parag. It is a matter of record, the wife Jaya is acquitted in the criminal prosecution. 3. The parties had the luxury of several litigations; at Nashik, Bhusaval and wherever it was convenient for them. In Divorce Petition No. 161/2005 initiated by the husband there operates a decree in his favour dt.20th Dec.,2006, under Section 23(iv) of the Hindu Marriage Act. Appeal is preferred by wife, it is pending. There is 3 no stay in the appeal moved by wife Jaya. The present controversy revolves to custody of two minors; Gaurav and Kunal, aged around 9 & 7 years. For their custody, wife initiated proceedings before the District Court in Misc. Criminal Application No.158/2008, which she lost on 23.3.2009, hence the First Appeal. 4. The Counsel harp to the welfare of the children, however, oblivious to the fact that the demeanour of the parents has made life of the children a casualty and miserable affair, depriving them from smooth living and to have proper nourishment. 5. The settled position of law is, welfare of the child needs to be a paramount affair, as it evolves their development, nourishment, considering their respective ages. In the instant case, as per the pleadings, the children, at the time of the Petition No.158/2008 dt. 24.9.2007, were aged 9 and 7 years, respectively (Kumar Gaurao 9 years, Kumar Kunal 7 years). It is said, Kumar Gaurao is is mentally ill, which has been disputed on behalf of husband by flashing certificate issued by Headmaster, Bhagirathi Primary School, Bhagirathi, dt.10th Jan.,2010, he is studying in third Standard and has a good curricular activities, possesses 4 talent, as having been observed in search examination. 6. The learned District Judge-II, Jalgaon, while rejecting wife's application in terms of Sections 7 and 9 of the Guardians and Wards Act, was more concerned, as could be seen, with observation of this Court in proceedings under Section 97 Cr.P.C. The learned Judge patently erred when he says that the custody of the two children was handed over to the husband on the directions of High Court. This Court simply endorsed observation of the learned District Judge that no custody of the children could be bestowed in favour of the mother, barring provisions of Guardians and Wards Act, taking recourse and short-cut to the summary procedure in terms of Section 97 Cr.P.C. 7. The learned Judge was unnecessarily swayed away and got ill influenced with the criminal prosecution between the parties, oblivious to the fact that the wife is honourably acquitted from the same. 8. The pivotal part in the matter which the learned Judge probably lost sight of while deciding the case on 25th March, 2009, that there is divorce decree in favour of the husband dt. 20.12.2006 and it cannot be said that the husband 5 would remain a moot spectator in life, without entering into a second marriage. In fact, there looms a potent threat to future prospcts of Gaurao and Kunal, owing to the decision in divorce proceedings. 9. The Counsel for the husband indicated, there was maintenance petition in terms of Section 125 of Cr.P.C. moved by the wife, however, he corrected himself that no such petition is pending, the wife has withdrawn it. 10. It is informed, the husband is now shifted from Bhusaval to Kalyan on account of his employment while Kumar Gaurao and Kumar Kunal are taking education at Bhusaval, may be taken care by their grand mother. 11. It is transpired, the wife Jaya is a graduate and she has also completed her M.B.A. course. The Counsel for the wife Jaya canvassed, the change in the circumstances at her parental house provides her with adequate financial support from rentals ( this, he has addressed, being a recent development, not surfaced on the record). 12. Counsel for the husband took recourse to the judgment in the matter of Shila B.Das V. P.R.Sugasree ( 2006(3) Mh.L.J. 567) and also to 6 the judgment of the Apex Court in the matter of Mausami Moitra Ganguli V. Jayanti Ganguli ( AIR 2008 S.C. 2262). In the latter case, the observation of the Apex Court in para no.14 in itself, are an eye opener: "14. The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the 7 family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration." 13. It is more than clear, each case projects its own scene and situation to be dealt with. Pragmatism in the approach with prattler need not be left to winds. Looking to the factum of the welfare of the minor, the age indicated above demonstrates that the ward needs custody, protection, moral support, added to it is the ethical values to be inculcated in the child which only is possible if the children remain in the custody of the wife/their mother. It is the mother who alone could be making the children to suit their contentment and to ensure to have intellectual development, coupled with favourable surroundings. It will naturally add to the ethical moral comforts of the child. 14. In Rosy Jacob V.Jacob A.Chakramakkal 8 ( AIR 1973 S.C. 2090) a three Judge Bench of the Apex Court has observed, " The children are not mere chattels; nor are they mere play- things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in normal balanced manner to be useful members of the society. " 15. The facts in the matter illustrate, though the bickerings between the parties have reached its height, still the welfare will be with their mother and their life would be more happy, while resting positively in the custody/company of the wife than the husband who himself is wandering on account of his service and apparently left incapacitated to take care of the tender kids. In the result, the appeal is allowed, the order under challenge of the learned District Judge, Jalgaon, is set aside. The custody of the two children to be given to the wife within 15 days from today. No costs. Civil Application also disposed of. The order is stayed for a period of two months. [K.U. CHANDIWAL, J.] agp/887-09fa