@JUDGMENTTAG-ORDER
Mr. A.S. Bopanna, J. - The petitioner is before this Court assailing the order dated 19-8-2015 passed on I.A. No. 5 in M.C. No. 3420 of 2013 at Annexure-E to the petition. In that light, the petitioner is seeking that the application in I.A. No. 5, in M.C. No. 3420 of 2013 be allowed.
2. The petitioner is the wife of the respondent. Due to certain difference in their marital life, they are residing separately The petition in M.C. No. 3420 of 2013 is instituted by the petitioner-wife seeking dissolution of the marriage. In the pending petition, she has filed an application under Section 26 of the Hindu Marriage Act, 1955 in I.A. No. 5 seeking that a direction be issued to the respondent to hand over the custody of their child Ryan. The application was objected to by the respondent. The Court below after taking note of the rival contentions has partly allowed the application. Though the prayer for handing over the custody of the child is rejected, the visitation right is granted to the petitioner on the first arid fourth Saturday at Mediation Centre, Bengaluru, between 10 a.m. to 2 p.m. The petitioner claiming to be aggrieved by the said order insofar as rejecting the custody of the child, is before this Court in this petition.
3. Learned Counsel for the petitioner while assailing the order would contend that the Court below while considering the application has proceeded at a tangent and in that light has arrived at a wrong conclusion. It is pointed out that though the Court below accepts the fact that the petitioner is the biological mother of the child, has wrongly arrived at the conclusion that the custody cannot be granted due to the delay in filing the application, there being time lapse and there is no familiarity between the mother and the child. It is contended that such conclusion is not justified.
4. Learned Counsel for the petitioner has relied on the decision of the Hon''ble Supreme Court in the case of Roxann Sharma v. Arun Sharma, AIR 2015 SC 2232 : (2015) 8 SCC 318 to contend that when the child is below'' five years, ordinarily the custody should remain with the mother and even beyond that, if for any reason the custody is to be denied to the mother, there should be specific reasons for doing so to indicate that the possibility is of such a nature the custody can never be granted due to any such disability. In that light, it is contended that the order is necessary to be set aside and appropriate direction be issued to grant the custody.
5. Learned Counsel for the respondent apart from seeking to sustain the order passed by the Court below would contend that the consideration which was being made at present was not with regard to custody as prayed under the Guardians and Wards Act. It is pointed out in a matrimonial case for dissolution, the application was filed for interim custody and keeping that aspect in view, the Court below has taken into consideration the welfare of the child and it is in that circumstance, the Court below was of the opinion that it would not be in the interest of the child to grant the interim custody at this stage and in any event, the Court below has granted the visitation rights which is being adhered to by the respondent.
6. To fortify the said contention, the learned Counsel for the respondent has relied on the judgment of the Hon''ble Supreme Court in the case of Mausami Moitra Ganguli v. Jayant Ganguli, AIR 2008 SC 2262 : (2008) 7 SCC 673, Civil Appeal No. 3500 of 2008.
7. In the light of the rival contentions, I have perused the petition papers, more particularly the order impugned herein. It cannot be in dispute that ultimately it is the welfare of the child which would matter and that would have to be considered by the Courts while granting custody. Though the Court below has made reference to the fact that at this point there is no familiarity between the child and the mother and even if the same is considered to be a wrong expression used by the Court below, the intention that was being put forth by the Court below was that "due to separation of the child and the mother for quite some time, it would not be possible for the child to immediately adopt to the change". Even to the said extent, I am of the opinion that when a biological mother seeks to have the child unless there is strong reasons to hold that the same cannot be granted, in a normal circumstance, it would not be refused.
8. In any event, in the instant case, in order to enable the child to adopt the change after the long separation, the Court below in any event has granted the visitation rights. Further, what is also not in dispute is that at this point the child is aged about six years and is studying in Bishop Cotton School. In that view, if the interest and welfare of the child is also taken into consideration, a sudden change should not be given effect to at this stage. Since the consideration is only with regard to interim custody in a pending matrimonial case and presently the Court below in any event has granted the visitation rights and also considering the fact that the academic sessions is also coming to close and the child would have summer vacations, appropriate course would be to grant liberty to the petitioner to make an appropriate application before the Court below to increase the visitation timings or to seek for overnight visitation rights by way of spending time during the weekends and also to seek for such visitation/interim custody during the vacations to be regulated by the Court below.
9. That apart, if the petitioner desires seeking custody in an appropriate proceedings in addition to the visitation rights being sought herein, she would also have the liberty of filing tire appropriate proceedings in that regard. Therefore, in the said circumstance, though the order impugned does not call for interference, liberty is however reserved to the petitioner to make such application before the Court below. If such application is made by the petitioner, the Court below shall take note of the same and notwithstanding the observations made during the course of the impugned order shall consider the said application insofar as extension of visitation rights or sharing of vacations as indicated above on hearing the respondent and on ascertaining the views of the child. If such application is made for having the company of the child during the vacations, the Court below in all eventualities shall decide the application before summer vacations for the child would commence.
10. In terms of the above and reserving such liberty to the petitioner, the petition stands disposed of.
