Mrs. Venetia E. Dias vs Jude Francis Dias

R.K. Batta, J.—The appellant challenges order dated 25th April, 1997 passed by the Civil Judge, Senior Division, Mapusa declining to give regular custody of the children to her. By the said order, the appellant was permitted to take children with her from the custody of the respondent on Sundays or any other Holidays and during the Winter and Summer Vacation of die School in which the children are studying. The total period of custody of the children by the appellant was restricted to one and half months in a year. In this appeal, the appellant challenges only the first part of the order whereby the regular custody of the children was declined. In respect of the second part of the order by which the appellant was permitted custody for a total period of one and half months in a year. Appeal No 30/97 had been filed by the present respondent which was withdrawn.

Today, the respondent is present with the children, but the appellant is absent. Learned Advocate for the appellant states that the appellant had gone to Bangalore where she suffered from slipped disc as a result of which she has not been able to come today. It may be mentioned here that even on the last date of hearing, the appellant was absent. It appears that difficulties were experienced in the implementation of the order relating to handing over of custody to the appellant and the respondent had filed an application for review of orders dated 25.4.1997 and 7.5.1997 in this respect before the Trial Judge. By order in Roznama dated 27.5.1997, it was agreed between the parties that the children shall be brought to the house of a common friend at Calangute, suggested by me appellant, and the children will remain there from 10.00 a.m. to 5.00 p.m. where the appellant would meet them. On 3.6.1997, Advocates for the parties informed the Court that conciliation is going on between the parties and they expect positive results. Thereafter, on the next two hearings the appellant did not appear.

Learned Advocate Mrs. Agni urged before me that the Trial Court was not justified in declining the regular custody of the children to the appellant solely on me ground mat the respondent was financially better equipped economically. There are allegations and counter-allegations by the parties as are usually found in such type of disputes. The appellant has labelled the respondent as alcoholic and the respondent has labelled the appellant as an adulterer. While passing the order, the Trial Court was aware of the fact that in such proceedings it is the welfare of the children which is of paramount importance. Admittedly, the respondent is stated to be financially better-off than the appellant. The Trial Judge found mat the educational institution in which the children were studying was not quite satisfactory and expressed hope that the respondent will put the children in reputed educational institution. Respondent has agreed before me that lie will change the present School of the children and put them from the next academic year 1998 1999 in St. Joseph''s High School, Arpora, which is at a distance of about 2 Kilometres from the house of the respondent where they are living. Learned Advocate for the appellant disputed this fact and stated that the children are residing at "Rose Garden", restaurant-cum-guest house, belonging to Lydia de Souza, sister of the respondent, situated at Tembi grounds, Anjuna. The respondent, who is present in'' person, has stated that the children are staying with him at House No. 541, Baga-Calangute, near St. Ann''s Chapel. In view of this controversy, it is considered necessary that it should be specifically stated in me order that the child ren shall stay alongwith the respondent at House No. 541 near St. Ann''s Chapel, Baga-Calangute, Bardez, Goa. The appellant, who is not even appearing for some hearings now either before the Trial Court or in the proceedings before this Court, is not considered fit for the purpose of the present order for handing over regular custody of the children to her. Accordingly, I am of the opinion that the order passed by the Trial Court declining regular custody of the children to the appellant cannot be interfered with till the final disposal of the suit. The Trial Judge, after the evidence is recorded on behalf of both the parties, shall decide afresh the question of regular custody of the children without being in any manner influenced either by order dated 25.4.1997 passed by him or by the order passed by this Court today. In other words, the Trial Court shall come to its own independent conclusion uninfluenced by any previous order as to whom the regular custody of the children be given.

In view of the above and subject to the directions, given above, the appeal is hereby dismissed with no order as to costs. The respondent shall file compliance report relating to change of the School by July, 1998 before the Trial Judge.