The welfare of the children is the primary consideration in custody and guardianship disputes, and factors such as financial capacity, mental stability, and compliance with court orders are crucial in determining guardianship.

JUDGMENT :

Alok Aradhe, J. –

1. This appeal emanates from judgment dtd. 28/2/2019 passed by the Family Court by which the petition filed by the appellant / wife under Sec. 7 of the Guardian and Wards Act, 1890 (hereinafter referred to as 'the Act' for short), has been dismissed, whereas the petition filed by the respondent / husband seeking appointment of guardian with respect of the children of the parties, has been allowed.

2. Facts giving rise to filing of this appeal briefly stated are that the marriage between the appellant and the respondent was solemnized on 15/7/2005 in Bengaluru. Out of the wedlock, a son namely Lakshya (hereinafter referred to as 'the son' for short) was born on 11/9/2006 and a daughter namely Pariniti (hereinafter referred to as 'the daughter' for short) was born on 1/3/2013. The appellant as well as respondent resided together till May 2016. The respondent, on 23/5/2016 noticed that the appellant is using another mobile phone for secret communications and secured the custody of the aforesaid phone of the appellant. The appellant thereafter, on 25/5/2016 left the matrimonial home and went to New Delhi. The conversation recorded between the appellant and the respondent reflects that the appellant has admitted the fact of having adulterous relationship with her brother-in-law (sister's husband) namely Rakesh Gupta.

3. The appellant returned to Bengaluru some time in the first week of June 2016 and filed a petition on 7/6/2016 seeking her appointment as guardian in respect of two children. The respondent thereafter filed a petition on 16/6/2016 under Sec. 13 of the Hindu Marriage Act, 1955 seeking dissolution of marriage on the grounds of cruelty and adultery. Thereafter, on 17/6/2016, the respondent filed a petition under Sec. 7 of the Act.

4. By an order dtd. 16/10/2017, the Family Court permitted the children to spend Diwali vacation with the respondent. However, the appellant was granted the custody of the children on 19/10/2017 between 10 a.m. to 7 p.m., on 20/10/2017 between 9 a.m. to 1 p.m. and 21/10/2017 between 10 a.m. to 7 p.m. On 21/10/2017, the son was taken by the appellant to the police station in HSR Layout, Bengaluru, where he lodged a complaint against the respondent, his grand mother and his uncle alleging assault. Thereafter, the Family Court, by an order dtd. 22/10/2017, allowed the son to be with the appellant.

5. However, by an order dtd. 2/11/2017, the Family Court directed to return the custody of the daughter to the appellant. The said order was challenged in W.P.No.51253/2017 before this Court which was dismissed on 16/4/2018. The respondent returned the custody of the daughter to the appellant on 2/5/2018. The Family Court by an order dtd. 10/9/2018, granted an interim order with regard to custody of the children. The appellant filed an application for modification of the said order which was rejected by an order dtd. 14/9/2018. The respondent thereafter filed interlocutory applications seeking action against the appellant for having violated the orders passed by the Family Court. The said applications were allowed in part on 29/9/2018. The order passed by the Family Court dtd. 29/9/2018 was subject matter of challenge in W.P.No.50186-87/2018.

6. During the pendency of the aforesaid writ petition before this Court, the parties filed a joint memo and agreed for interim custody of the children to the respondent, from 10 a.m. on Saturday till 2 p.m. on Sunday. In pursuance of the aforesaid order between the period from December 2018 to 23/2/2019, the children spent time during the weekend with respondent and his family and even travelled to Ooty.

7. The Family Court, by a common judgment dtd. 28/2/2019, decided the petitions filed by the appellant as well as the respondent seeking custody of the children. The Family Court, inter alia, held that respondent is staying alone in an apartment and has no independent source of income to maintain children. It was further held that conduct of