T.S. Misra, C.J. - (1.) DR . Ranjit Barthakur, the present opposite party has tiled a suit against his wife Mrs. Archana Barthakur, the present Petitioner for restoration of conjugal rights, That suit is still pending in the court below. The name of the daughter is Amrita @ Ruma, whereas the name of the son is 'Baba'. Amrita was born on 31st January, 1977, where is Baba was born on 7th September, 1979.
(2.) DURING the pendency of the said suit the present opposite party filed an application seeking an order "for restoring the custody and care of the said minor children to the Petitioner so as to enable the Petitioner to make necessary arrangement for the education of the daughter in a suitable school and hostel at Shillong". The application was resisted by the present Petitioner alleging, inter alia, that the "unsavoury, uncongenial and unfavourable environment is not conducive for proper upbringing of the minor children" and that she being the mother was equally anxious to see the welfare of her minor children. The Court below by an order dated 16th March, 1982 granted interim custody of the daughter Amrita @ Ruma to the present opposite party. Aggrieved, the Petitioner has preferred this revision petition. On 13th March, 1984, I heard the learned Counsel for the parties. I felt that in view of the provisions of Sub -clause (2) of Section 23 of the Hindu Marriage Act an endeavour may be made to bring about re -conciliation between the parties. The learned Counsel for both the parties stated that they would require at least one month's time to inform their respective clients to appear before the Court for the said purpose. The case was, therefore, adjourned to 11th April, 1984 and the parties were directed to appear before me in person on that date. The case could not, however, be taken on 23rd April, 1984 and was adjourned to 25th April, 1984 and on that date the parties appeared before me in my chamber. I tried to bring about reconciliation between them but unfortunately the reconciliation could not be brought about. Hence, the revision petition was ordered to be posted for hearing on merits. On 3rd May 1984 after hearing the learned Counsel for the parties, I felt the necessity of ascertaining the wishes of Kumar. Amrita @ Ruma, the daughter of the Petitioner and the opposite party. The learned Counsel for both the parties along with the Petitioner and the opposite party as well as Miss Amrita @ Ruma appeared before me in my chamber on 22.5.84. I ascertained the wishes of Amrita and put certain questions to her. Her reply was recorded by me. She stated that she was at present residing with 'Nani' at Gauhati where she was prosecuting her studies in Udaygiri English School as a student of Class II. She pointed out that her mother and father both were present in my chamber at the moment but categorically stated that she wanted to live with her mother. I asked her whether she would like to go and live with her father to which she replied that she would not like to go with him and live with him. When asked that she should live sometime with her father, she declined.
(3.) THE learned Counsel for the Petitioner submitted that the interest and welfare of the minor is of paramount consideration in such matters and as Amrita @ Ruma is aged 7 (seven) years and 4(four) months and is deeply attached to her mother and is not willing to go and live with her father, she should not be compelled to stay either with her father or in some hostel at Shillong. The submission was that as the mother is also highly educated and is earning about Rs. 2000/ - per month as a Government employee she is in a position to look after the welfare and studies of her daughter Ruma and son Baba. The learned Counsel for the opposite party, on the other hand, submitted that keeping in view the welfare of Amrita and Ruma it would be but fit and proper if she is kept in a hostel of a school at Shillong, where she can receive proper education, and all the expenses in that behalf shall be borne by the opposite party. In reply, the learned Counsel for the Petitioner submitted that Amrita @ Ruma is already receiving her education in Udaygiri English School at Gauhati and is staying with her 'Nani'. Her mother very after visits Gauhati and looks after Ruma as well. If at this tender age she is asked to live in a hostel, she would -be deprived of the love and affection of her mother which will certainly retard her mental and emotional development.;