JUDGMENT
R.G. Vaidyanatha, J.
1. This is an appeal filed by the Appellant against the order dated 20.9.1995 in Misc. Application No. 242/88 on the file of Second Additional District Judge, Thane, Heard both sides.
2. The Appellant and the Respondent were husband and wife. The marriage has been dissolved by a decree of divorce on 9.8.1991. The couple have a child by name Nikhil, who was born to the couple on 29.8.1986. It appears the child is residing with the mother, the present Appellant.
That is why the Respondent- Father filed a petition in the Court below for custody of the child under Section 7 of the Guardians and Wards Act. The Appellant filed a reply opposing the application.
At the time of recording evidence, the Respondents evidence was recorded, he was not cross examined. The Appellant remained absent and did not adduce any evidence. The Trial Court, therefore, appreciated the materials on record and came to the conclusion that the father is the proper guardian of the child and granted the application by the impugned order. Hence, the mother has come up with the present appeal.
3. The short point for consideration is whether impugned order is liable to be set aside or not?
4. After hearing both sides, I feel that no final order can be passed at this stage regarding custody of the child for want of evidence. The Respondent has not been cross-examined in the Court below. The Appellant has not entered the witness box to give evidence. Further the child Nikhil has not been interviewed by the trial Court. What value should be given for the interview of the child is a different matter. But in a matter like this, it is always desirable to know the wishes of the child. Further, boy is about 10 years and odd and is sufficiently mature to give any reply. Then, on the basis of the interview with the child and taking over all evidence into consideration, the Court may form its opinion as to whether the father or the mother is the fit guardian for the child. Since, we do not have the evidence of the Appellant and the interview of the child, it may not be desirable to express any final opinion as to who should be appointed as a guardian of the minor child. I therefore, feel that this is a fit case in which the matter should be remanded to the Trial Court with certain directions. Since, the case was filed in 1988 in the Trial Court, it is necessary that the proceedings should be expedited.
5. It is common ground that both the parties have remarried. The Appellant has shown her name in the appeal memo as Mrs. Shweta Chittal, since that was the name shown in the proceedings in the Trial Court. But now it is brought to my notice that the Appellant is now known as Mrs. Sandre Lee. It is also stated that she is now working as an Air-Hostess in Gulf Airways. The learned Counsel for the Appellant submits that the address of the Appellant in the lower Court proceedings is correct except the change of name.
6. In the result, the impugned order is hereby set aside. The case is remanded to the Trial Court. Both the parties or their advocates arc directed to appear before the learned 2nd Additional District Judge on 17.3.1997. The Trial Court shall fix a convenient dale for recording the evidence. The Trial Court shall also take interview of the child before passing final order. Then after interviewing the child, and on the basis of the evidence to be adduced by both the parties dispose off the case on merits in accordance with law. The learned Counsel for the Appellant may move the Trial Court for fixing convenient date to bring the child to court and also for the purpose of interview. The Trial Court is directed to expedite the disposal of the case and it should he disposed of preferably within a period of 4 months from the date of receipt of records. However, if due to unavoidable reasons the matter cannot be disposed of within 4 months, then the learned Trial Court should write a letter to the High Court and get lime extended. Both the Counsel submit that they will co-operate with the Trial Court in the disposal of the matter expeditiously. In the circumstances of the case, there will be no order as to costs.
Send a copy of this order along with R & P within one week from today to the Trial Court.