ARUNPRABHA G NAVALE Vs. GAJANAN NAVALE

JUDGEMENT

(1.) In the above civil application, the applicant, who is the appellant in the above appeal has prayed for a direction to her husband, respondent No. 1, to deliver the custody of the third child of the marriage between them forthwith to the petitioner. She has also prayed for other reliefs, which are not pressed at the stage. The appeal is filed against an order on her notice of motion dated March 7, 1974 taken out in her M.J. Petition No. 1950 of 1974 for nullity of the marriage between the petitioner and the respondent No. 1, under section 24(1)(a) of the Special Marriage Act as the respondent No. 1 had suppressed the fact that respondent No. 2, his former wife was bring at the time of the second Marriage. The Notice of Motion was taken out for custody of ornaments and other moveable properties and also for other reliefs including delivery of the custody of the three children of the marriage Manoj, Mukesh and Mrinalini to the petitioner.

(2.) The Motion was opposed by the husband, respondent No. 1. The wife has made several allegations of a serious nature against the husband . The husband in his affidavit in reply has stated that since December 8, 1973. When the wife left the matrimonial home, she has never cared to see the children and the children are happy in his custody and the welfare of the children requires that they should continue in his custody because at the time of an inventory taken in the matrimonial home, certain letters written by one Thube addressed to the wife as Priya Arus C/o Arunprabha Gopal Thube, revealed the illicit intimacy between the wife and the said Thube. According to the husband, the welfare of the child Mrinalini requires that she should not be in the custody of the wife, who is leading an adulterous life with Thube.

(3.) On October 15, 1974 the learned Judge in the City Civil Court, who heard this Motion directed that the petition itself should be immediately heard and disposed of along with the Notice of Motion and accordingly fixed the petition to be heard on November 26, 1974, subject to overnight part-heard. The learned Judge found that having regard to the serious nature of the allegation, it wad not desirable that the matter should be decided on the Notice of Motion merely on the basis of affidavits. Feeling aggrieved by the said order. The wife has filed the above appeal from Order No. 505 of 1974, in which she has filed the above civil application for custody of only the youngest child Mrinalini, who was born on July 10, 1972.