-Report by Sejal Jethva
In this case, the custody of two children—who should live with their mother or father—is being settled between SALIM YOUSUF JAMADAR VS RESHMA SALIM JAMADAR
On May 19, 2010, the appellant and respondent were married in Pune in line with the customs and principles of Mohammedanism. The respondent-wife gave birth to a girl called Akira on May 16, 2014, and a son named Arsalan on September 21, 2011, both outside of marriage. Arsalan is currently about 11 years old, while Akira is about 8 years old. The respondent and her children were then violently forced out of her marital home on August 28, 2019, due to a marital quarrel. It is claimed that the children were kidnapped from the respondent’s wife’s custody at her parent’s house in Aloor by the appellant’s relatives under the guise of feeding them chocolates.
On October 11, 2021, the respondent-wife filed a case in the Omerga Court of Judicial Magistrate (First Class) under the provisions of the Protection of Women from Domestic Violence Act. The court only granted the respondent-wife visitation rights, allowing her to see her children once a month in Pune at the office of the protection officer, without interfering with the minor children’s custody arrangements with their father. The respondent-wife does not contest the court’s decision to deny custody and solely grant visitation rights in the aforementioned judgment. The wife ultimately filed a procedure under Section 8 of the Guardians and Wards Act in the trial Court over the custody of minor children as a result of the marital strife between the parties.
The attorney for the applicant has submitted a written statement outlining the events leading up to the Respondent’s (wife) filing of this application under Section 8 of the Guardians and Guardians Act. He also brought up the issue of jurisdiction, claiming that an educated trial judge had incorrectly ruled that the children had a habitual abode in Alloa based solely on inference. Welfare and child protection Concerning the query, he said that the Scientific Court had neglected to consider a few clauses in Articles 17 and 25 of the Guardians and Guardians Act.
The respondent-wife vehemently disagreed with the arguments put out by the knowledgeable Attorney representing the appellant’s spouse. He defended the contested order and argued that the learned trial court correctly dismissed the husband’s complaint about jurisdiction. He emphasised that although the children were enrolled in an English-medium school in Aloor, the appellant-husband requested that they attend an Urdu-medium school instead, which is unquestionably dangerous for the development of young children.
He did reasonably acknowledge, however, that up until this point, the respondent-wife had not requested maintenance from her husband. He contends that the respondent, who does not leave the house for employment, is better able to provide for the children’s needs because the appellant is unable to do so because of his continued absence from the home for work. He called for the appeal to be dismissed as a result.
1. Upon reading the contested decision, it is clear that this aspect of the highest consideration was not discussed in detail by the competent court, given the applicant’s capacity. It can be seen that the entire judgment discusses the jurisdictional aspect and the Labor Court only made a puzzling statement on this aspect of the child’s well-being in the last paragraph. , does not argue whether it is fit to act in the best interest of children by providing them with a good future education and the facilities they need. Under guardianship laws, custody of minors remains with the mother until the age of five. However, in this case, both minor children are over 5 years of her age. Their son Arsalan is 11 years old and their daughter Akira is 8 years old. Therefore, with their best interests in mind, they must be provided with a good education, safety, and other conveniences. On the other hand, the applicant’s husband discovered that he was not at home due to his work and his wife. Therefore, she is promoted to a higher level, giving her time to grow and care for her children. However, feeding a minor child is not only about giving the child time to grow, but other aspects such as financial support, a good atmosphere, and safety are also important.
2. As a result, the appeal is upheld, and the contested order from the learned District Judge-1, Omerga, District Osmanabad in Civil Miscellaneous Application No. 45/2020 is revoked and reversed. There is no expense order.
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