IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION

WRIT PETITION NO.4086 OF 2012

Savita Sachin Patil …Petitioner
Vs.
Sachin Suresh Patil …Respondent

Mr. Haribhau Deshinge i/b. Mr. Vijay Killedar,Advocate for the Petitioner
Ms. Preeti B. Walimbe, Advocate for the Respondent

CORAM : MRS. ROSHAN DALVI, J.
DATED : 18TH JULY, 2012
P.C. :

1. The Petitioner wife has challenged the order of District Judge, IV, Sangli dated 10th February 2012, which was passed upon her application for interim custody of her minor child Nikhil. The parties have been married since 2007. The child was born in 2008. The parties separated since 2010. A complaint under Section 498A came to be filed on 9th April 2010. The wife had left the matrimonial home with the child and was living with her parents in their village. She has claimed that since January 2011 the husband had forcibly taken the child. The wife claims that thereafter the husband represented to her that the child should stay with him for some days and has thereafter kept custody of the child with him after she delivered the child to him. The wife accepted the plea of the husband to avoid further controversy, but whenever she called upon him to deliver back the child, he on some pretext or the other failed to comply.

2. The father has applied for the custody of the child in the trial Court. This itself shows that the father did not have custody prior to the application. The child has remained with the father pending the application.

3. The mother took out the application for interim custody of the child on 20th August 2011. In the impugned order the learned Judge has not considered the merits of the matter. He has neither accepted, nor rejected her application on the ground of delay of 8 months. He has found no urgency to deal with the application for interim custody filed by the mother of the child. He has observed that the application would be heard along with the main petition and the custody of the minor son Nikhil would be continued to be with the father till the decision is taken on merits.

4. The Counsel on behalf of the Respondent has contended that the writ petition does not lie because an appeal is maintainable under Section 43 of the Guardian and Wards Act, 1890. That would be after the interim custody application is either accepted or rejected. Counsel has argued that the fact that the custody of the minor child is to be continued with the husband, shows the order of rejection.

5. I find that the contention is incorrect in view of the
observation of the learned Judge in the impugned order that the
application would be decided with the main Petition. Consequently, only a writ petition would be maintainable.

6. It is contended in the writ petition that the mother does not live with her own parents at her parental home. She lives separately in Lonawala where she has procured an employment. That aspect is admitted by the mother of the child. However, the mother claims that she is prepared to give up her job and take custody of the child by residing with her parents in her parental home. She has also stated to Court that in the alternative, her mother is prepared to live with her in Lonawala.

7. Considering an application of custody of a child of 4 years by the mother is a fragile matter. The Court requires to consider such an application with the child’s interest at the tender age. The urgency or lack of urgency in an application upon any delay may be rightly considered by any Civil Court or even a Family Court in a dispute between the parties themselves who are adults. The order of access applied for by the mother is not granted by the Court upon considering the rights of the mother.

It is granted upon considering the rights as well as the welfare of
the child to have access to his own mother and to be in custody
of the mother. A child of such tender years is even under the
statutory provision contained in Section 6 of the Hindu Minority
and Guardianship Act, 1956 required to be ordinarily given to the mother. Consequently, urgency is implicit in an application
filed by a mother, no matter whatever the previous circumstances.

8. In this case the father has contended that the mother left
the child with her own parents and has gone to another village.
The allegations of adultery are also made. The father has
contended that thereafter the parents of his wife themselves left
the child with him. It may be mentioned that the contention of
the mother stands to reason and would have to be accepted.
Considering the fact that the main Petition itself has been filed
on 3rd January 2011, the contention of the Respondent that after
filing the petition for custody the custody voluntarily came to
him is rather difficult to accept.

9. Under these circumstances I considered it appropriate to meet the child as well as the father, mother and the grandfathers of the child. The maternal grandfather has not been able to attend as he is from Sangli. The father as well as the mother have attended before the Court. The father has also brought with him the paternal grandparents of the child as also the child. The child is of too tender an age to be interviewed. The child has been allowed to meet his mother during the course of the afternoon session of this Court. Over a period of time the child has gone to the mother, played with the mother and has been comfortable with the mother despite a long lapse of 1½ years during which the child was deprived of the love or care of the mother for whatever reasons.

10. The mother of the child who is present in Court undertakes
to the Court that she will leave her employment in Lonawala and go to her parental residence to be with the child after she gets the interim custody claimed by her. The mother also states that in the alternative her own mother will come to live with her in Lonawala so that she can continue her employment.

11. It is seen that the father lives near Sangli at the distance
of only 35 Kms from the parental home of the mother. If the mother is to be given custody of the child, the father must obtain access comfortably. If the Petitioner mother lives in Lonawala that would not be possible. Hence, the mother cannot be allowed to live in Lonawala and claim even interim custody of the child. She would then only be entitled to access at the convenience of the parties and the child. Under these circumstances, the mother gives an undertaking to the Court that she would leave her employment and go to her parental
residence after she gets interim custody.

12. Her undertaking is accepted. The mother shall submit her
resignation and show the Court that fact. The mother shall also
file a written undertaking in the above terms.

13. S.O to 24th July 2012 in Chambers at 2.30 p.m. The father shall bring the child to Court on the next date of hearing.

(MRS. ROSHAN DALVI, J.)