JUDGMENT
D.G. Deshpande, J.
Page 1038
1. Heard advocates for the appellant/mother and respondent/father. Appeal No. 692 of 2003 is filed by the mother. The mother had filed a petition claiming custody of the child Girisha. That petition was dismissed. Access was given to the mother during holidays and school vacation. The order of dismissal of petition was passed by the 4th Additional District Judge, Thane on 10.05.2002. By the time, the appeal was filed and it has come for hearing today, the child Girisha attains the age of 13 years. Therefore on the basis of judgment of the Supreme Court [Rosy Jacob v. Jacob A. Chakramakkal] the mother claims that the custody should be given to her. My attention was specifically drawn by the counsel for the mother to para 16 of the judgment which is as under :
“16. The respondent’s contention that the Court under the Divorce Act had granted custody of the two younger children to the wife on the ground of their being of tender age, no longer holds good and that, therefore, their custody must be handed over to him appears to us to be misconceived. The age of the daughter at present is such that she must need the constant company of a grown-up female in the house genuinely interested in her welfare. Her mother is in the circumstances the best company for her. The daughter would need her mother’s advice and guidance on several matters of importance. It has not been suggested at the bar that any grown-up woman closely related to Maya alias Mary would be available in the husband’s house for such motherly advice and guidance. But this apart, Page 1039 even from the point of view of her education, in our opinion, her custody with the wife would be far more beneficial than her custody with the husband. The youngest son would also, in our opinion, be much better looked after by his mother than by his father who will have to work hard to make a mark in his profession. He has quite clearly neglected his profession and we have no doubt that if he devotes himself whole-heartedly to it he is sure to find his place fairly high up in the legal profession.”
2. The counsel for the appellant/mother, in addition, contended that Girisha is about 13 years of age and she is at a stage of age where she requires company and care of her mother for her physical, mental, emotional and psychological developments She also contended that there is no female member in the family of the respondent/father now. The mother of the respondent, who was available at the time of passing of the order, is now dead.
3. This prayer is strongly opposed by the counsel for the respondent/father. According to the learned Counsel for the respondent/father, the child has been interviewed four times by the Judges of this Court and the child, during these interviews, has expressed her opposition to go to the mother. He also contended that even though the mother of the respondent is dead, there are four uncles residing in the same building, their wives and daughters are capable of looking after and are also looked after the welfare of the child Girisha. He also contended that the respondent/father has engaged or appointed a Governess to look after the child. His further contention was that the school is just near the house of the respondent/father and, for all these arrangements, if the custody of the child with the father is disturbed, that will affect the child adversely.
4. None of the submissions of the counsel for the respondent/father can be accepted in view of the specific and clear cut judgment of the Supreme Court. The relevant paragraph in which the Supreme Court has considered the problem of growing-up children particularly daughter, when they attain the age of puberty, has been reproduced by me above and, therefore, continuing the custody of the child with the father/respondent is not proper, not desirable. It was tried to be contended that initial stand of the mother was that the child should be kept at a boarding school. The counsel for the respondent/father tried to suggest that the mother was trying to avoid the responsibility of the child. No such inference can be drawn even if such suggestion came from the side of the mother.
5. The respondent/father has enjoyed the custody of the daughter Girisha from 1999 till this date and there are no allegations that the mother is incompetent to look after the welfare of the child. The mother is also earning woman. She can spend for education of the child Girisha and, therefore, the judgment of the Supreme Court, referred to and reproduced by me above so far as it relates to para 16, squarely applies to the facts of the present case. It is not necessary to examine the child again. She may have stated earlier about her prejudice against the mother. But looking to the fact that now she is in the age of 13, the company of the mother is most vital and important for all sides development.
Page 1040
6. Availability of other members and relatives in the family of the husband cannot be equated with the company of the mother. Even if the child is hostile today against the mother, it is the company and love of the mother that can change her attitude towards the mother. Therefore, this appeal has to be allowed. However, in stead of allowing the appeal fully today I pass the following order :
:ORDER:
Respondent/father Ajit Hariram Lakhani to hand over the custody of child Girisha to the appellant/mother Kiran Ajit Lakhani within eight days from today. Girisha will be in the custody of the mother Kiran up to the end of her academic year i.e. up to 29th April 2006. Thereafter the Court will examine the child and Court may also call upon the teacher and Head Mistress of the school to know about the further development of the child Girisha.
If the child Girisha has any problem in the mean time of the custody i.e. from the time of handing over the custody to the mother, the Respondent/father will be at liberty to move to the court after 48 hours notice to the mother or her advocate.
The matter to appear before this Court on 29th April 2006.