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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR

WRIT PETITION NO. 307 OF 2019

RANJEET DNYANESHWAR KADU
Aged : 37, Occupation : Service
R/o : Shivaji Colony, Sane Lay Out,
Nachangaon, Taluka : Deoli,
District : Wardha .. PETITIONER

…V E R S U S…

SUSHMA RANJEET KADU
Aged : 36, Occupation : Service,
C/o Namdevrao Mahalle, Tenant at
Mone Engineer House, Behind Sai Mandir
Gadge Nagar, Nachangaon,
Taluka : Deoli, District : Wardha .. RESPONDENT

——————————————————————————————-

Shri. Prasad Dharaskar Shri.D.G.Sharma, counsel for Petitioner.
Smt. Shilpa Tapadiya, counsel for respondent.

——————————————————————————————-

CORAM:- MANISH PITALE J.
DATED :- 03/02/2020

ORAL JUDGMENT

Heard.

(2) Rule. Rule made returnable forthwith. Heard

finally by the consent of learned counsel appearing for the

rival parties.

(3) By this writ petition, petitioner has challenged

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order dated 12/12/2018, passed by the Court of Civil

Judge Senior Division, Wardha, whereby an application for

interim custody of child filed on behalf of the respondent

has been allowed and the petitioner has been directed to

handover custody of the child forthwith to the respondent.

This Court while issuing notice on 18/01/2019, granted ad-

interim stay to the impugned order passed by the Court

below.

(4) The petitioner herein has filed a petition for

divorce under Section 13(1)(ia) and (iii) of the Hindu

Marriage Act, 1955. The petitioner has, inter alia, made

allegations of cruelty and the fact that the respondent

suffers from psychiatric ailments, which is a ground for

seeking divorce. The respondent has stoutly denied the

allegations made by the petitioner.

(5) In the pending divorce petition, the respondent

made an application for interim custody of the child i.e. a

son, who was at that time about 5 years old. The

application was resisted by the petitioner, emphasizing

upon the fact that the respondent had suicidal tendencies,

that her behavior was abnormal and that she was

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admittedly undergoing treatment for Bipolar disorder.

(6) The Court below has passed the impugned

order granting interim custody to the respondent despite

noticing the fact that the respondent is taking treatment for

such ailments. It is found by the Court below that even if

there was material on record to show that the respondent

was taking treatment, she was found by the Court to be

mentally and physically fit to take care of the minor child,

who according to the Court below needed company of his

mother. Reference was also make to specific questions put

to the child regarding treatment meted out by the

respondent to him when the parties were living together.

The Court emphasized upon the responses given by the

child, indicating that he had been treated properly by the

respondent.

(7) The learned counsel appearing for the

petitioner invited attention of this Court to various

documents placed on record, including some medical

documents pertaining to a period prior to and immediately

after marriage solemnized between the parties on

15/02/2014. In fact, there are documents on record

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showing treatment being taken by the respondent for

Bipolar disorder. In one of such documents, it is recorded

that the respondent was suffering from severe depression

and that her medical history was divulged by her own

father before the Mahatma Gandhi Institute Medical

Sciences at Wardha, wherein it was categorically stated that

the respondent had been suffering from such disorder for

the past 12 years. The document also shows that the

respondent was on continuous medication for such

disorder and she was undergoing psychiatric counseling

from the year 2012 onwards. It is also recorded that in

2018, the respondent had attempted suicide. The

respondent was also shown to have been advised specific

medical treatment to be taken regularly in order to get over

the disorder suffered by her.

(8) Such comprehensive medical documents have

been dealt with in a very casual manner by the Court below

by holding that on the basis of responses given by the

minor child and the interaction of the Court with the

respondent, it was found that the respondent was

medically and physically fit to take care of the minor child.

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There is no dispute about the fact that the child has been in

the company of the petitioner (father) since the beginning.

This aspect and the material on record indicating prima

facie that the respondent does suffer from depression and

related disorders, this Court is of the opinion that the order

passed by the Court below directing the petitioner to

handover custody of the minor child to the respondent

forthwith is wholly unsustainable. This Court on the basis

of the material on record finds that given the medical

history of the respondent, which is narrated even by her

own father before the concerned Doctors, it would be in the

interest of the child that the custody is retained with the

father, of course with visitation rights to the mother during

the pendency of the divorce petition before the Court

below.

(9) In view of the above, the impugned order is

quashed and set aside. It is directed that the respondent

shall have access to the minor child from 10.00a.m. to

4.00p.m. on every Sunday during the pendency of the

divorce petition before the Court below. The petitioner

shall co-operate with the respondent in this aspect.

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Considering the fact that the divorce petition presently is at

the stage of recording of evidence, in the peculiar facts and

circumstances of the present case, it would be in the

interest of justice that the divorce petition is decided at the

earliest. It is directed that the Court below shall also pass

appropriate orders on the question of custody of the minor

child while disposing of the divorce petition on merits.

(10) In view of the above, the Court below is

directed to dispose of the divorce petition filed by the

petitioner expeditiously and in any case on or before 30 th

April, 2020.

(11) Needless to say, the observations made by this

Court in the present order are only prima facie in nature

and that the Court below will not be influenced in any

manner by such observations while deciding the divorce

petition filed by the petitioner on merits, including the

question of grant of custody of the minor to either party.

(12) Rule made absolute in above terms.

JUDGE

KOLHE/P.A.

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