Whether court can grant custody of child to father if mother is proceeded exparte in guardian and ward Act proceeding?

It is trite law that paramount consideration in such matters is
the welfare of the children.  In my opinion, it was the duty of the District
Judge to cause appearance of the child­Aryan before the Court and hold
interview of the child in­camera to know view of the child  supposedly
with   sufficient understanding.   Had the District Judge held interview
with the child, I think, he would have known several things which have
come to the surface due to the ex parte judgment.    There is a failure to
find out whether the welfare of the children could be found out at the
present place of residence of the wife.  It is difficult to understand as to

how the learned District Judge could record a finding in para 10 that
merely because the written statement was not filed and the husband was
not cross­examined, he has no reason to disbelieve the allegations of the
respondent­husband   It is not possible for me to agree with such kind of
approach since in a case under the Guardian and Wards Act, the District
Judge was bound to make thorough enquiry, keeping in mind that the
paramount consideration is welfare of the children.  In my opinion, there
is a failure on the part of learned District Judge in adverting to the above
aspects.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Appeal From Order No.100/2013
Smt. Kiran Amol Ambhore, 

V 
Amol Ramdas Ambhore, 

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CORAM:­ A. B. CHAUDHARI, J.
DATED :­ 04.04.2014
Citation; 2015(7) ALLMR264

1. Heard.   Admit.  By consent of the parties, taken up for final
hearing.
2. The appellant­wife has put to challenge judgment and order
dated 30.10.2013 passed by District Judge­1, Akola in  M. J. C. No.
29/2013 by which custody of child Aryan, aged 6 years has been ordered
to be handed over to the respondent­husband.

3. The learned counsel for the appellant­wife, challenged the
impugned order on the ground that the learned District Judge did not
make requisite enquiry before making the order of handing over custody
of the son born out of the wedlock.  According to the learned counsel for
the appellant, she had authorised her Advocate to enter appearance and
look   after   her   interests   in   the   said   M.   J.   C.   No.   29/2013,   but   her
Advocate failed to appear in the said court. The District Judge proceeded
ex parte and passed the impugned judgment and order.  According to the
learned counsel for the appellant, it was the fault of the Advocate of the
appellant who neither appeared nor contested the proceeding.
4. Per contra, Mr. Tathod, learned counsel for the respondenthusband,
supported the impugned order and vehemently argued that the
appellant­wife   appeared   in   the   matter   and   her   reply   to   the   interim
application   was   already   on   record.   He   further   argued   that   the
respondent examined himself but was not cross­examined and, therefore,
there was no alternative for the trial court to rely on the evidence and to
pass an ex parte order with which no fault can be found out.  According
to him, the appellant does not have financial capacity to educate the
child and on the contrary the respondent­husband is capable of giving
proper education to him.  He further submitted that on most of the dates
the appellant­wife chose to remain absent, perhaps deliberately, in the
guardian and ward case. 

5. I have perused the impugned judgment and order made by
the Ad hoc District Judge, Akola.  I have perused the record produced
before   me.     It   is   a   fact   that   the   appellant­wife   preferred   to   appear
through Advocate  in M. J. C.No. 29/2012 and, thereafter, remained
away from the court.    It is the fact that the appellant­wife failed to file
written statement and the Court proceeded ex parte against her and the
respondent­husband was not even cross­examined and, therefore, the
Court accepted his evidence and proceeded to pronounce the judgment.
I do not find any fault with the learned District Judge. But then, under
the Guardian Wards Act, 1940, onerous duty is cast on the District Judge
while trying and adjudicating a case in relation to the custody of children
whenever there is a dispute between the husband and wife.  
6. It is trite law that paramount consideration in such matters is
the welfare of the children.  In my opinion, it was the duty of the District
Judge to cause appearance of the child­Aryan before the Court and hold
interview of the child in­camera to know view of the child  supposedly
with   sufficient understanding.   Had the District Judge held interview
with the child, I think, he would have known several things which have
come to the surface due to the ex parte judgment.    There is a failure to
find out whether the welfare of the children could be found out at the
present place of residence of the wife.  It is difficult to understand as to

how the learned District Judge could record a finding in para 10 that
merely because the written statement was not filed and the husband was
not cross­examined, he has no reason to disbelieve the allegations of the
respondent­husband   It is not possible for me to agree with such kind of
approach since in a case under the Guardian and Wards Act, the District
Judge was bound to make thorough enquiry, keeping in mind that the
paramount consideration is welfare of the children.  In my opinion, there
is a failure on the part of learned District Judge in adverting to the above
aspects.
8. In that view of the matter, following order would subserve the
ends of justice. 
O R D E R
(i) Appeal   From   Order   No.   100/2013   is
partly allowed.
(ii) Judgment and order dated 30.10.2013
in M. J. C. No.29/2013 passed by Ad hoc District
Judge ­1, Akola, is set aside.
(iii) Proceedings   in   M.   J.   C.   No.   29/2013
are remitted to the District Judge, Akola for fresh
hearing and disposal, in accordance with law.  
(iv) The   appellant­wife   as   well   as
respondent­husband shall appear before the Court
on   05.05.2014   and   shall   abide   by   further
instructions of the Court  

(v) The Ad hoc District Judge­1, Akola shall
make an enquiry in the light of the observations in
this judgment and shall dispose of the said case as
early as possible and, in any case, within a period of
four  months  from  the  date  of  appearance  of  the
parties.  
(vi) The   appellant­wife   is   granted   a   last
opportunity   to   file   written   statement   within   a
period   of   15   days   days   from   the   date   of   first
appearance and also to lead evidence.
No order as to costs.