VIVEK YASHWANT BHAGWAT Vs. REKHA VIVEK BHAGWAT

JUDGEMENT

(1.) The husband's present appeal is only against that part of the interim order of the trial Court passed under Sec. 26 of the Hindu Marriage Act whereby the custody of the minor son Rahul aged 5 years is directed to be given to mother viz., Mst. Rekha Vivek Bhagwat within the period as specified in the said order.

(2.) Proceedings under Sec. 26 ibid are obviously governed by the provisions of the Hindu Minority and Guardianship Act. Sec. 26 enables the Court from time to time, to pass such interim order and make such provisions in a decree as it may deem just and proper with respect to the custody, maintenance and education of minor children. It enables the Court to do so, not only during the time the proceedings are pending but also after a decree has been passed in any proceedings under the Hindu Marriage Act.

(3.) Rahul, by now, admittedly, is above five years of age and therefore, the mother cannot ordinarily be considered his natural guardian. The order regarding custody of the minor child in accordance with Sec. 26 has to be made consistently with the wishes of the child wherever possible. This section, therefore, enjoins upon the Court to take into consideration the wishes of the minor child wherever that course possible as where the minor child has reached the age of understanding. Rahul even if he be a little over five years, cannot ordinarily be stated to have reached the age of understanding. However, all the same, considering the welfare of the child Rahul, it would be desirable for the Court to form its own opinion after confidentially talking to the child Rahul, taking full care that he is not under any duress or pressure. This may, well, be on of the considerations but other more weighty circumstances too will have to be taken into account solely with a view to see that the benefit and welfare of the child is ensured.