The Bombay High Court at Nagpur Bench has held that though the provisions of the special statutes govern the rights of the parents, the paramount consideration is the welfare of the child, and therefore, for ascertaining the welfare of the child, the trial court was bound to make a thorough enquiry.

The Bench of Justice Urmila Joshi Phalke observed that the word “welfare” used under Section 13 of the Hindu Marriage Act, 1956 (HMA) has to be construed literally and must be taken in the widest sense since the moral and ethical welfare of the child must be looked into.

Advocate R.L. Kadu appeared for Appellant and Advocate A.J. Thakkar appeared for Respondent.

Going by the background of the case, after a child was born from the wedlock of the respondent (applicant/husband) and the opponent/wife, there were matrimonial dispute between the applicant and the opponent. Since the opponent was not ready to cohabit with the applicant she left the home, the applicant approached the Woman Cell of Buldana Police and filed an application under Section 9 of HMA for restitution of conjugal rights. On the other hand, the opponent filed an application for a grant of maintenance under Section 125 of CrPC.

Later, the applicant settled the dispute and withdrew the proceedings under Section 9 of HMA for better care and protection of the child. Now, since the child has attained the age of six years and requires special care and treatment which, opponent was not capable to afford, and the academic career of the minor child was also getting affected, the applicant claimed custody of the child.

The opponent failed to appear before the trial court and the application proceeded ex-parte, directing the opponent to hand over the custody of the child to the applicant. This order passed by Principal District Judge had been challenged under the present appeal.

After considering the submissions, the Court found from the Bailiff report that the notice was properly served on the opponent and, therefore, the ground regarding the proper opportunity is not available to her.

The paramount consideration in matters of matrimonial dispute, is the welfare of the children, added the Bench.

The High Court noted that the trial court had recorded its finding by merely observing that the father is a natural guardian, and the evidence adduced by the applicant remained unchallenged.

It was the duty of the trial court to cause appearance of the minor child before the court and hold interview of the child in camera to know a view of the child supposedly with sufficient understanding. Had the trial court held interview, the trial court would have been known several things like desire of the child to come to the conclusion”, added the Court.

Accordingly, since there was a failure to find out whether the welfare of the child could be found out at the present place of the residence of the opponent, the High Court remanded back the matter for deciding the same afresh by giving an opportunity to the opponent.

Cause Title: Sau. Reshma Sumedh Bawaskar v. Sumedh

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