JUDGMENT
H.H. Kantharia, J.
1. This appeal arises from the judgment and
order passed by the learned Third Extra Assistant Judge, Pune on 7th June,
1984 in Miscellaneous Civil Application No. 60 of 1984 partly allowing the
appellant’s application for custody of her minor daughter Chandrakala and
rejecting the same for the custody of minor son Vaibhav.
2. The relevant facts giving rise to the appeal are as under:
“The appellant is the second wife of the first respondent. The
second respondent is said to be the mother of the first respondent and
the third respondent is the first wife of the first respondent. The
marriage between the appellant and the first respondent took place
about eight years prior to making of the application in the year
1984. Thereafter they stayed as husband and wife at village Kadus
Dangleshwar of Khed taluka in Pune District. During this time,
the appellant gave birth to four children out of whom one died.
Respondent No. 3 who is the first wife of the first respondent did
not give birth to any child but in the month of June, 1983 she gave
birth to a male child. It is the case of the appellant that thereafter
the respondents started ill-treating her and her minor children and
she was driven out of the house on 3rd January, 1984. Thereafter
on 30th January, 1984 the appellant filed an application for custody
of her minor children on the ground that she was the natural
guardian and the welfare of the children would not be safe in the
custody of the respondents. The said application was resisted by
the first respondent on the ground that he was the father of the
minors and as such the natural guardian. He denied that he had
ill-treated his children and the appellant. According to him, the
appellant had on her own left his house on 3rd January, 1984 and
that too after setting fire to the cradle and fodder for which a police
complaint was lodged aginst her. According to the first respondent,
the appellant is mentally ill and the welfare of the children would
not be safe in her custody and that she herself was unable to
maintain herself as she had no source of income and would not be
in a position to maintain the children if their custody was handed
over to her. He contended that he was an agriculturist and as such,
well to do and was in a position to take good care of the children.
Respondent Nos. 2 and 3 did not contest the application. The
appellant examined herself in the trial Court and relied upon
documentary evidence in the nature of birth extracts of the minor
children. The respondents remained absent and the matter proceeded
ex-parte against them.
3. On consideration of the evidence adduced before him, the learned
trial Judge came to the conclusion that during the pendency of the application
admittedly one child by name Jitendra died and that the custody of daughter
Chandrakala who was three years old should be handed over to the appellant
and the custody of son Vaibhav who was five years old should be handed
over to the first respondent. He passed orders accordingly by the impugned
judgement and order. Hence this appeal.
4. Now, the record shows that after the appellant was driven out of
the house or she left the matrimonial house of her own accord on 3rd January,
1984, the minor children had remained in the custody of the first respondent
during which time son Jitendra had died on 30th January 1984. Therefore,
all throughout till the custody of daughter Chandrala was handed over to the
appellant, the children had remained in the custody of the first respondent.
The custody of Chandrakala who was three years old was correctly handed
over to the appellant but so long as son Vaibhav was concerned he was at
that times five years old and his natural guardian was naturally the first
respondent. The learned trial Judge was also conscious of the fact that there was no evidence on the record that either the appellant or her father had
sufficient source of income to maintain Vaibhav and, therefore, it was in the fitness of the things that his custody was retained with the first respondent. At any rat, I am of the opinion that Vaihbav has remained with the first
respondents for thirteen year all throughout his life and it would not be in his
interest and welfare that he should be now separated from the father and be
handed over to the mother at this age. Thus, I find no merits in this appeal
which deserves to be dismissed.
5. Appeal is accordingly dismissed but with no order as to costs.