Case Note & Summary
The appellant-wife challenged the judgment and order dated 30.10.2013 passed by the District Judge-1, Akola in M.J.C. No. 29/2013, whereby custody of the child Aryan, aged 6 years, was ordered to be handed over to the respondent-husband. The appellant contended that her advocate failed to appear in the trial court, leading to an ex parte order. The respondent argued that the appellant had appeared and filed a reply, but failed to cross-examine him, leaving the court no option but to rely on his evidence. The High Court observed that under the Guardian and Wards Act, 1940, the District Judge has an onerous duty to conduct a thorough enquiry, keeping the welfare of the child as the paramount consideration. The court noted that the District Judge did not cause the child to appear or interview him in-camera to ascertain his views. The court found fault with the District Judge's approach of accepting the husband's allegations merely because the wife did not file a written statement or cross-examine him. The High Court set aside the impugned order and remanded the matter to the District Judge for fresh consideration, directing the judge to conduct a proper enquiry, including interviewing the child and considering the welfare of the child.
Headnote
A) Family Law - Child Custody - Welfare of Child - Paramount Consideration - Guardian and Wards Act, 1940 - The court held that in matters of child custody, the paramount consideration is the welfare of the child. The District Judge failed to conduct a thorough enquiry, including interviewing the child in-camera, to ascertain the child's welfare. The ex parte order was set aside and the matter remanded for fresh consideration (Paras 5-7).
Issue of Consideration
Whether the District Judge was justified in passing an ex parte order for custody of a child without making a thorough enquiry into the welfare of the child as required under the Guardian and Wards Act, 1940
Final Decision
Appeal allowed. Impugned judgment and order dated 30.10.2013 set aside. M.J.C. No. 29/2013 restored to file of District Judge-1, Akola for fresh decision after conducting thorough enquiry, including interviewing child Aryan in-camera, and considering welfare of child as paramount. Parties directed to appear before District Judge on 28.04.2014.
Law Points
- Welfare of child is paramount
- duty of court to conduct thorough enquiry
- interview child in-camera
- ex parte order not justified without proper inquiry
