Sau. Sarika W/O Sachin Palsokar vs Sachin S/O Suresh Palsokar on 15 September, 2016 (Equal shared custody)
Family Court Appeal, the appellant (Wife) challenges the judgment of the Family Court, Nagpur dated 20.12.2011 allowing a petition filed by the respondent for a decree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. In the First Appeal filed by the appellant (wife), the respondent (husband) has filed a Cross Objection for seeking the custody of the minor child as the Family Court has held that the custody of the minor child, would remain with the appellant.
Who would be entitled to the custody of Anvesh (son). The wife has admitted in her cross-examination that her brother had threatened to kill Anvesh. She had also admitted in her cross-examination that though on 08.09.2011, she had telephoned the husband that Anvesh had a fall and had a bump on his head with a bleeding injury, she did not take Anvesh to a doctor.
Though the aforesaid admissions on the part of the wife would result in recording a finding that the wife was not taking proper care of Anvesh, we are not inclined to permit the husband to have the custody of Anvesh in the entirety. It is not in dispute that the husband is paying a sum of Rs.10,000/- to the wife and Anvesh and also paying the school fees, fees for the speech and development therapy and is bearing the other expenses for Anvesh. It is fairly stated on behalf of the husband that even if the custody of Anvesh is granted to the husband, the husband would still continue to pay a sum of Rs.10,000/- to the wife. We have found from the evidence of the husband and the statements made on his behalf in this Court at the time of hearing that the husband is conducting himself as a good father and is also desirous of giving a substantial amount to the wife towards her maintenance. It is also not disputed by the counsel for the wife that the husband used to drop and collect Anvesh from the school and the coaching classes, even after the parties had decided to share the custody-access to Anvesh, as per the terms of settlement executed on 19.09.2013. The husband and the wife had agreed in terms of the interim settlement that Anvesh would be in the custody of the wife from Monday to Friday and from Friday evening to Monday Morning, the custody-access of Anvesh would be with the husband. We find that the custody of Anvesh is given to the wife by the Family Court only because the custody of a child should normally remain with the mother, if the child is below five years of age. Now, Anvesh is seven years of age and in the circumstances narrated hereinabove, it would be necessary in the interest of justice to permit the husband to have the custody of Anvesh for some more time during the school days and equally with the wife during the vacations. In the circumstances of the case, we are not inclined to grant the custody of Anvesh only to one of the parents as the child is a slow learner, and in our view, both the parents should be able to shower their love and affection on Anvesh so that the child remains attached with both of them.
The terms of settlement executed between the parties on 19.09.2013 as an interim arrangement have worked to a great extent and in the circumstances of the case, we direct that the custody of Anvesh would be with the husband from Friday evening (after the School hours) till Tuesday morning, when Anvesh would be dropped to the school. It is needless to mention that the wife would have the custody of Anvesh from FCA 344/14 20 Judgment Tuesday evening (after the School hours) till Friday evening. We have arrived at this arrangement, with a view to give equal opportunity to both the parents to spend time with Anvesh who is just seven years of age and is a slow learner. The husband may continue to drop Anvesh to the school and classes and bring him back to the house of the wife even when Anvesh would be in the custody of the wife. During the vacations, the custody of Anvesh should be shared equally by the husband and the wife, that is to say that, if the vacations are for a period of twenty two days, Anvesh would remain with each of the parents for eleven days. This arrangement would apply to all the vacations including the Summer, the Winter and the Diwali vacations.
Though probably not the most important part of judgment but an observation by judges: "We have found from the evidence of the husband and the statements made on his behalf in this Court at the time of hearing that the husband is conducting himself as a good father and is also desirous of giving a substantial amount to the wife towards her maintenance"
Anvesh is given to the wife by the Family Court only because the custody of a child should normally reain with the mother, if the child is below five years of age.