Smt. Bhagwatibai vs Kamal and Others

Heard. The appellant has assailed the judgment of Family Court at Khargone, in case No. 181/2006 delivered u/s 47 of the Guardian and Wards Act, 1890, granting the custody of the respondents No. 2 and 3 to the first respondent. It is submitted that the petition u/s 25 of the Guardian and Wards Act in which, the impugned order has been passed was filed by the first respondent only after, the appellant filed the petition u/s 125 of Cr.P.C. for grant of maintenance for herself and two children namely � Shubham and Shyam i.e. respondent No. 2 and 3. In the said petition, the appellant supplied sufficient cause for her not staying with the first respondent as he inflicted cruelty upon the appellant.

In that petition, maintenance at the rate of Rs. 1000/- per month granted for the appellant by the first respondent and Rs. 600/- each for the respondent No. 2 and 3 but not a single penny has been paid by the first respondent towards maintenance. In fact, on account of this default even warrant was also issued against the first respondent, which fact is admitted by the first respondent in his cross examination.

It is only after the representation of the appellant u/s 125 of the Guardian and Wards Act was filed, the first respondent just to avoid to pay the maintenance, filed a petition u/s 25 of the Guardian and Wards Act seeking custody of the respondent Nos. 2 and 3, despite having no such intention to maintain them.

The petition has been decided by the learned Family Court at Khargone, despite noting that the children were undertaking education and were passing with good marks and that the first respondent was never ready and willing to maintain them, granted custody of the respondents No. 2 and 3 in favour of the first respondent.

The reasons given by the Family Court are in paragraphs 11 and 12 of the judgment:-

It is submitted on behalf of the appellant that the reasons given by the learned trial Court are in ignorance to the real dispute between the parties. In fact, respondent No. 1 has no intention to keep the appellant with him or to maintain the children. The children who are aged about 16 and 10 years respectively, are happy to live with the appellant and are not ready to go and live with the father i.e. the first respondent.

In this regard, this Court also examined the two children, who were produced before us, they wished to live with their mother i.e. with the appellant. As per the respondent No. 1 is concerned, he has no care to appear or contest the proceedings.

In these circumstances, considering the timing of filing of this petition u/s 25 of the Guardian and Wards Act by the first respondent and that the order of maintenance was passed against him, it is apparent that the petition filed by him was not bonafide. In view of the aforesaid, considering wish of the children, we feel that the order of the trial Court can not be sustained, accordingly, it is set aside. The custody of the respondent No. 2 and 3 will remain with their mother i.e. with the appellant. There shall be no order as to costs.

C.c. as per rules.