RUPA MAHESH PAI Vs. MAHESH VINAYAK PAI

JUDGEMENT

(1.) HEARD. Admit. By consent of the parties heard forthwith. The challenge in this appeal is to the Order dated 22nd February, 2006 passed by the Civil Judge, Senior Division, Mapusa in Civil Misc. Application No.192/03/B filed by the respondent herein. Briefly the facts which are relevant for disposal of the appeal are as follows:

(2.) THE appellant and respondent got married on 21st May, 1991 and were staying at Mumbai. Out of the wedlock, Pooja was born on 29th October, 1994. Somewhere in the year 2000 the appellant and the respondent were separated. In October, 2001 the appellant filed Matrimonial Petition No.51/01/Sr/1 in the Court of the Civil Judge Senior Division, Mapusa, seeking divorce on the ground of cruelty. On 10.02.03 the respondent filed an application seeking custody of the minor child and in the alternative he sought visitation rights to see his daughter in Goa as well as to take his child to Mumbai or any other place during vacation. After separation the appellant has been residing at Porvorim with her parents and the respondent has been residing at Mumbai with his parents. The minor child has attained puberty.

(3.) MR. Mulgaonkar, learned counsel appearing for the appellant, submitted that the trial Court erred in granting relief (c) claimed by the respondent without considering the wishes of the minor child which are of paramount importance while deciding whether even temporary custody should be given either to the mother or father. The learned counsel further submitted that the wishes of the child have to be considered before granting any relief of custody or visitation rights and the trial Court erred in not ascertaining the wishes of the child. According to the learned counsel, the child is not prepared to stay even for a short period with the respondent and therefore the impugned Order deserves to be quashed and set aside. He further submitted that while deciding the application for custody of a minor child, the Court has to take into consideration the wishes of the child and not the rights of the parents. In support of his submissions, the learned counsel relied upon the following Judgments: