1 96 fa.1538.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION FIRST APPEAL NO. 1538 OF 2010 Hanif Ibrahim Memon. ... Appellant Versus Urusa Hanif Memon. ... Respondent ----- Mr. Kuldeep S. Patil for the Appellant. Ms Pallavi N. Dabholkar for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 03 rd October, 2011. P.C. 1 This appeal was fixed for final disposal at admission stage by the order dated 16 th March, 2011. The dispute is between the husband and wife regarding custody of minor sons. 2 An application was made by the Appellant by invoking Sections 7 and 10 of the Guardians and Wards Act, 1890 praying for custody of the minor sons of the parties. The date of birth of the elder son – Akbar is 3 rd May, 1998 and the date of birth of the younger son – Azhar is 20 th June, 1999. Various allegations were made in the 2 96 fa.1538.10 application filed by the Appellant. It is alleged that on 21 st October, 2003, the Respondent left the matrimonial home with her children without the permission of the Appellant. Thereafter, she started residing with her mother at Nallasopara. It is contended that the Respondent never returned thereafter. 3 The custody was sought on the ground that the Respondent is not having any income and she is not capable of taking care of the minors. It is stated that the Respondent ill-treated the minors. Reference was made to a police complaint filed against the Appellant under Section 498-A of the Indian Penal Code. The application for declaration and for custody was contested by the Respondent by filing a written statement. Parties were adduced evidence. By the impugned order, the learned District Judge declined to disturb the custody. 4 The submission of the learned counsel appearing for the Appellant is that during the pendency of the proceedings, both the 3 96 fa.1538.10 minors have completed the age of seven years and therefore, now the Appellant is the only natural guardian of the minor sons. He invited attention of the Court to the evidence on record. He submitted that the allegation that the Appellant may not be able to give time for looking after the children, is no ground to deny the custody to the Appellant. He submitted that evidence on record shows that the Respondent may not have any income and the Appellant has sufficient income to take care of all the needs of the minor children and especially meet the expenses of higher education. The learned counsel appearing for the Respondent supported the impugned judgment and order. 5 I have perused the pleadings and notes of evidence on record. The admitted position is that both the minor sons are in custody of the Respondent – Mother from 21 st October, 2003. It appears that there is a matrimonial dispute between the parties and in fact the Respondent has filed a complaint against the Appellant complaining of offence punishable under Section 498-A of the Indian 4 96 fa.1538.10 Penal Code. Perusal of the examination-in-chief of the Appellant shows that he was having business of grocery shop and he was approximately earning Rs.4,000/- to Rs.5,000/- per month. It is submitted that he has secured admission of both the sons in a reputed convent English medium school. An apprehension was expressed that the Respondent may remarry. It is stated that Respondent No.1 was not allowing the Appellant to meet the children. Perusal of the examination-in-chief of the Appellant shows that there is nothing produced on record to show that the children were not being properly looked after by the Respondent – Mother. The Appellant admitted that he was earning a net profit of Rs.5,000/- per month. In the cross- examination, he stated that his mother was residing with him who is aged about 65 years. He denied the correctness of the suggestion that the Respondent is engaged in business of selling ready made garments and was earning income. The mother of the Appellant also filed the affidavit in lieu of examination-in-chief. She made a reference to the proceedings for the maintenance filed by the Respondent. 5 96 fa.1538.10 6 The Respondent also filed an affidavit in lieu of examination-in-chief. She stated that from her business, she was earning and her brother was paying her a sum of Rs.3,000/- per month. She produced in evidence, the copies of the examination results of both the sons. In the cross-examination, she stated that she was earning Rs.2,000/- to Rs.2,500/- per month and the other expenses are being taken care of by her brother. It is stated that the children are studying in VII th and VI th standard respectively in the St.Anthoney Convent High School at Vasai. The Respondent also examined her brother by filing an affidavit in lieu of examination-in- chief, who reiterated the income of the Respondent. He stated that he alongwith his brother were giving monetory help to the Respondent to the extent of Rs.2,500/- to Rs.3,000/- per month. 7 It is well settled that the dispute regarding custody of the minor children cannot be decided only on the basis of the legal rights of the parties. There is nothing brought on record to show that the 6 96 fa.1538.10 minor sons are not being treated well by the Respondent. The minor sons are taking education in a convent school. For last seven years and more, the custody of the minors is continuously with the Respondent – mother. Only on the basis of the legal right claimed by the Appellant, the custody of the minors cannot be disturbed at this tender age when they are continuously in the custody of the Respondent – mother. It is well settled that the orders regarding custody of the minors are never final in the sense that in the event of a drastic change in the circumstances, parties can always apply for modification of the said orders. 8 By the order dated 20 th August, 2011, this Court has made an arrangement for grant of access to the Appellant to meet the minor children. 9 While dismissing the application made by the Appellant, the trial Court did not make any order for grant of right of access and therefore, the said arrangement made by this Court will have to be 7 96 fa.1538.10 made by modifying the impugned order to that extent. 10 Hence, I pass the following order: i. The impugned order rejecting the prayer for custody is confirmed ; ii. However, the Appellant shall be entitled to meet the minor children in accordance with clause (4) of the order dated 20 th August, 2011 passed by this Court ; iii. In the event, there is any difficulty in implementation of the said order or in case of change of circumstances, the parties will be free to approach the trial Court for seeking necessary modification ; iv. The appeal is partly allowed on above terms ;and v. There will be no order as to costs. [ A.S.OKA, J ]