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Smt. Gaytri vs Santosh on 11 April, 2018

M.A. No.1260/2017 1


M.A. No.1260/2017
(Smt. Gaytri vs. Santosh)

Indore, Dated: 11/04/2018

Ms. Nidhi Bohra, learned counsel for the appellant.
Shri Ashish Sharma, learned counsel for the respondent.

Heard on the question of admission.

Appeal is admitted for final hearing.

Let record of the lower Court be called for.

Also heard on I.A. No.5010/2017, an application under
Order 41, Rule 5 read with Section 151 of C.P.C for staying the
execution of order dated 01/08/2017, passed by the Principal Judge,
Family Court, Indore in Guardian Case No.55/2012.

The respondent/father has filed an application under
Section 6(a) of Hindu Minority and Guardianship Act, 1956 for
taking custody of his minor son and daughter before the Principal
Judge, Family Court, Indore. The said application is allowed by
impugned order and respondent/father is declared natural guardian
of the minor son daughter and it is directed that the
appellant/mother shall hand over the custody of both the children to
the respondent/father.

Being aggrieved by the said order, appellant/mother of
the minor children has filed the present appeal before this Court
under Section 47 of Guardian and Wards Act, 1890 and moved this
interlocutory application under Order 41 rule 5 read with Section
151 of C.P.C., for staying the execution of impugned order.

After hearing learned counsel for the parties, and on
perusal of record, this Court is of the opinion that it is well settled
preposition of law that interest and welfare of the minor becomes a
paramount consideration, while deciding the custody of a minor.

M.A. No.1260/2017 2

Both the minor children were present before this Court, therefore,
we had an occasion to interact with them in our Chamber. On
interaction with them, we found that the son is studying in Class
11th and daughter is studying in 6th Class in an english medium
school at Indore. The son is living with his mother from
30/10/2011, whereas the daughter is living with her mother since
her birth and they do not evince any interest in the father. They
have categorically stated that they are willing to live with their

Looking to fact that the impugned order passed by the
Principal Judge, Family Court for handing over the custody of the
children to the father, is the subject matter of challenge before this
Court in the present appeal, which is pending decision, therefore, it
would be appropriate to stay the execution of impugned order dated
01/08/2017, passed by Principal Judge, Family Court, Indore.

Accordingly, IA. No.5010/2017 is allowed and the
execution of impugned order shall remain stayed till the decision of
this appeal.

So far as the visitation right of respondent is concerned
it is directed that the respondent/father shall be free to meet with
both of his children for 2 hours on first Saturday of every month
from 5.00 pm to 7.00 pm in the place where the meeting can take
place at the convenience of both the parents.

List for final hearing in due course.

(P.K. Jaiswal) (S. K. Awasthi)
Judge Judge

Digitally signed by Sumati
Date: 2018.04.12 16:39:20 +05’30’

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