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2014 DIGILAW 896 (BOM)

Kiran Amol v. Amol Ramdas Ambhore

2014-04-04

A.B.CHAUDHARI

body2014
JUDGMENT 1. Heard. Admit. By consent of the parties, taken up for final hearing. 2. The appellant-wife has put to challenge judgment and order dated 30.10.2013 passed by District Judge-1, Akola in M. J. C. No. 29/2013 by which custody of child Aryan, aged 6 years has been ordered to be handed over to the respondent-husband. 3. The learned counsel for the appellant-wife, challenged the impugned order on the ground that the learned District Judge did not make requisite enquiry before making the order of handing over custody of the son born out of the wedlock. According to the learned counsel for the appellant, she had authorised her Advocate to enter appearance and look after her interests in the said M. J. C. No. 29/2013, but her Advocate failed to appear in the said court. The District Judge proceeded ex parte and passed the impugned judgment and order. According to the learned counsel for the appellant, it was the fault of the Advocate of the appellant who neither appeared nor contested the proceeding. 4. Per contra, Mr. Tathod, learned counsel for the respondent-husband, supported the impugned order and vehemently argued that the appellant-wife appeared in the matter and her reply to the interim application was already on record. He further argued that the respondent examined himself but was not cross-examined and, therefore, there was no alternative for the trial court to rely on the evidence and to pass an ex parte order with which no fault can be found out. According to him, the appellant does not have financial capacity to educate the child and on the contrary the respondent-husband is capable of giving proper education to him. He further submitted that on most of the dates the appellant-wife chose to remain absent, perhaps deliberately, in the guardian and ward case. 5. I have perused the impugned judgment and order made by the Ad hoc District Judge, Akola. I have perused the record produced before me. It is a fact that the appellant-wife preferred to appear through Advocate in M. J. C.No. 29/2012 and, thereafter, remained away from the court. It is the fact that the appellant-wife failed to file written statement and the Court proceeded ex parte against her and the respondent-husband was not even cross-examined and, therefore, the Court accepted his evidence and proceeded to pronounce the judgment. It is the fact that the appellant-wife failed to file written statement and the Court proceeded ex parte against her and the respondent-husband was not even cross-examined and, therefore, the Court accepted his evidence and proceeded to pronounce the judgment. I do not find any fault with the learned District Judge. But then, under the Guardian Wards Act, 1940, onerous duty is cast on the District Judge while trying and adjudicating a case in relation to the custody of children whenever there is a dispute between the husband and wife. 6. It is trite law that paramount consideration in such matters is the welfare of the children. In my opinion, it was the duty of the District Judge to cause appearance of the child-Aryan before the Court and hold interview of the child in-camera to know view of the child supposedly with sufficient understanding. Had the District Judge held interview with the child, I think, he would have known several things which have come to the surface due to the ex parte judgment. There is a failure to find out whether the welfare of the children could be found out at the present place of residence of the wife. It is difficult to understand as to how the learned District Judge could record a finding in para 10 that merely because the written statement was not filed and the husband was not cross-examined, he has no reason to disbelieve the allegations of the respondent-husband It is not possible for me to agree with such kind of approach since in a case under the Guardian and Wards Act, the District Judge was bound to make thorough enquiry, keeping in mind that the paramount consideration is welfare of the children. In my opinion, there is a failure on the part of learned District Judge in adverting to the above aspects. 7. In that view of the matter, following order would sub-serve the ends of justice. ORDER (i) Appeal From Order No. 100/2013 is partly allowed. (ii) Judgment and order dated 30.10.2013 in M. J. C. No.29/2013 passed by Ad hoc District Judge 1, Akola, is set aside. (iii) Proceedings in M. J. C. No. 29/2013 are remitted to the District Judge, Akola for fresh hearing and disposal, in accordance with law. ORDER (i) Appeal From Order No. 100/2013 is partly allowed. (ii) Judgment and order dated 30.10.2013 in M. J. C. No.29/2013 passed by Ad hoc District Judge 1, Akola, is set aside. (iii) Proceedings in M. J. C. No. 29/2013 are remitted to the District Judge, Akola for fresh hearing and disposal, in accordance with law. (iv) The appellant-wife as well as respondent-husband shall appear before the Court on 05.05.2014 and shall abide by further instructions of the Court. (v) The Ad hoc District Judge-1, Akola shall make an enquiry in the light of the observations in this judgment and shall dispose of the said case as early as possible and, in any case, within a period of four months from the date of appearance of the parties. (vi) The appellant-wife is granted a last opportunity to file written statement within a period of 15 days days from the date of first appearance and also to lead evidence. No order as to costs.