Bombay High Court: In an appeal preferred by the appellant (‘husband’) against the judgment and order passed by the District Judge, Aurangabad (‘Trial Court’) ruling in favour of respondent 1 (‘wife’), regarding the custody of children, the single-Judge Bench of Kishore C. Sant, J., considering the welfare of the children, upheld the decision of the Trial Court and directed the husband to hand over their custody to the wife.
Background
The dispute was regarding the custody of the children. The wife had filed an application under Section 25 of the Guardians and Wards Act, 1980 for the custody of the minor children from the husband. The parties were married in 2015 and have three children of tender ages (all below 7 years of age).
The wife submitted that while staying with the husband’s family post their marriage, she was ill-treated for a demand of Rs. 1.5 lakhs. Therefore, she was constrained to file a First Information Report (‘FIR’) for the offences punishable under Sections 498-A, 504, 506, read with 34 of the Penal Code, 1860 (‘IPC’). Since she was driven out of her matrimonial home, she filed a proceeding under Section 97 of the Code of Criminal Procedure, 1973 (‘CrPC’), seeking custody of her children. Both proceedings are pending before the Trial Court. Thereafter, the wife filed another application for the custody of children as their natural guardian.
The husband submitted that his and his family’s financial condition is sound and denied the allegations of ill-treatment and driving the wife out of the house. He submitted that the children were taking good education at reputed schools and were displaying good educational progress. However, no evidence had been adduced by the husband vis-a-vis the same, therefore, the Trial Court had directed him to give the custody of children to the wife. In the impugned judgment and order, the Trial Court had observed that wife can take best care of the children, as minor children need company of their mother. It had further observed that the wife had sufficient time for children as she is a housewife and not involved in any business, whereas the husband is busy with his grocery shop and does not have time to look after the children.
Analysis and Decision
The Court interacted with the children to access their situation and to ask for their willingness. The children had been until the date of this decision, in the custody of the husband and thus very naturally they stated that they were happy with their father, and they do not want to go with their mother. However, the Court considered that since the children were residing with the father, they favoured the father.
The Court considered the submissions of the parties, and perused the cases cited by the parties. The Court viewed that the settled principle is that the interest of children is paramount, and mere desire of a child at a tender age shall not be a sole factor for deciding the status of their custody, as they are not fully aware of their welfare. There is a tendency to be with the parent with whom they are residing and are prone to being tutored by the parents.
The Court considered the aspect of better company and care, wherein it evaluated the parties’ living arrangements, schedules and availability to cater to the children. The Court noted that almost every family member of the husband was involved in business, and only the children’s grandmother was available to look after the children for the entire day. However, the wife was not working and stayed at home with her parents. The Court further noted the geographical proximity of the parties and noted that their residences were within 2 kms from one another, therefore, visitation of parents would not be difficult.
The Court noted that the girl child had been staying with the wife and required the care and attention of her mother. The Court viewed that if all siblings were to stay together it would help them in growing together. The Court also noted that under Muslim law, the custody of children below 7 years of age is required to be with the wife.
Therefore, the Court upheld the direction of the Trial Court to the husband for paying an amount per month to each child. The Court found no merit in the appeal and directed the husband to hand over the custody of children to the wife within a month from the date of this judgment. Hence, the appeal and any associated applications were dismissed and disposed of.
[Mukhtar v. Habiba, 2024 SCC OnLine Bom 2888, decided on 28-08-2024]
Advocates who appeared in this case :
For the appellant: Advocate Krishna Pratap Rodge
For the respondents: Advocate Sayyed Tauseef Yaseen
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