The welfare of the child is the paramount consideration for custody matters, and each case must be decided on its own facts, considering the stability and consistency of the child's living arrangements and the potential trauma of a change in custody.

Headnote:
Custody - Child Welfare - Protection of Women from Domestic Violence Act, 2005 - Sec. 12, Sec. 21 - The court considered the welfare of the child as the paramount consideration for custody matters and emphasized that each case has to be decided on its own facts. The court also highlighted the importance of stability and consistency in the child's living arrangements and the trauma that the child may experience in the event of a change of custody. The court directed the Magistrate to dispose of the custody petition expeditiously within three months.
Fact of the Case:

The petitioner challenged the orders granting temporary custody of the child to the respondent. The child had been living with the father for over a year, and the father argued that it was not conducive to the child's welfare to change custody during the pending legal proceedings. The mother contended that as the legal custodian of a female child below 5 years of age, she was entitled to custody.
Finding of the Court:

The court found that the child had been living with the father for a significant period and that the father had provided medical treatment and enrolled the child in a playgroup and extracurricular activities. The court also noted the child's adverse reaction towards the mother and the reluctance to meet her during visitation. Considering the welfare and mental setup of the child, the court decided not to interfere with the existing custody arrangement at the interim stage.
Issues: The main issue was the temporary custody of a female child aged 5 years and 5 months, with the father and mother both seeking custody during the pending legal proceedings.
Ratio Decidendi: The welfare of the child is the paramount consideration for custody matters, and each case must be decided on its own facts. Stability and consistency in the child's living arrangements, as well as the potential trauma of a change in custody, were also crucial factors considered by the court.
Final Decision: The court allowed the petition, quashed the impugned orders, and continued the interim custody with the father, subject to visitation rights for the mother. The court directed the Magistrate to dispose of the custody application within three months.

JUDGMENT

1. Rule. Rule made returnable forthwith. Heard finally by consent of the learned counsel appearing for the parties.

2. Whether the father or the mother shall be preferred for temporary custody of a female chilled aged 5 years 5 month, is the short question for consideration in this petition. The petitioner/husband has challenged the impugned orders passed by both the Courts below directing to handover temporary custody of child to the respondent/wife. By invoking writ jurisdiction, petitioner/father has called in question the legality and sustainability of both impugned orders.

3. The petitioner got married with the respondent/wife on 7/9/2014. The parties are governed under the Hindu Law. The petitioner/husband was hailing from District Jalna whilst the parental house of the respondent/wife is at village Sangadi, District Bhandara. The petitioner was serving as a Scientist/Technecian at Hyderabad. Soon after the marriage, couple started to reside at Hyderabad. During Wedlock, they had a female child born on 2/1/2017. In the year 2020, after Dasera festival, the couple came to Jalana and thereafter, respondent alongwith her minor child stayed at her parental house due to differences.

4. On 27/2/2021, the petitioner/husband went to the respondent's maternal house and took child under one or other pretext, but never returned. The respondent/wife has filed application under Sec. 12 of the Protection of Women from the Domestic Violence Act, 2005 ('D. V. Act') in the Court of jurisdictional Magistrate. In said proceedings, she has applied for temporary custody of minor child in terms of Sec. 21 of the D.V. Act. The petitioner/husband resisted for grant of temporary custody to the wife. After hearing both sides, the learned Magistrate vide order dtd. 24/12/2021 has granted temporary custody of child to the respondent/wife till disposal of main petition. The said order was carried by the petitioner/husband in Criminal Appeal No. 49/2021, however the appeal was dismissed vide order dtd. 17/1/2022.

5. Undisputedly for initial 4 years from marriage, the couple lived with child at Hyderabad. It is not in dispute that while the respondent/wife was staying at her maternal house, on 27/2/2021, the petitioner/husband took away child to Hyderabad. The learned counsel for the petitioner has primly canvased that since the child is comfortably living with father from 27/2/2021, it is not conducive for the welfare of child to transmit her during pendency of lis. It is submitted that the child was suffering from physical as well mental problem. The father has extended necessary medical aid to the child at Hyderabad. Moreover, father has admitted the child in nursery and looking towards welfare of the child. On the other hand, the learned counsel appearing for respondent wife would submit that the petitioner/husband has forcibly taken the custody of child. It is submitted that the child was barely 4 1/2 years old at relevant time, and therefore, the mother being legal custodian of female child below 5 years of age, she is entitled for custody. Both learned counsels have relied upon various decisions to support their respective stand.

6. The learned counsel for petitioner, by relying on the decision of this Court in case of Arun Sharma Vs. Roxann Sharma (Writ Petition No. 79/2014) decided on 2/8/2014 advanced submission that when the child is with her father for more than one year, it is not appropriate to change the custody at interim stage. He has also relied on the decisions of the Supreme Court in cases of Mausami Moitra Ganguli Vs. Jayant Ganguli, (2008) 7 SCC 673, Athar Hussain Vs. Syed Siraj Ahmed and others, (2010) 2 SCC 654, Sumedha Nagpal Vs. State of Delhi and others, (2000) 9 SCC 745 and R.V. Srinath Prasad Vs. Nandamuri Jayakrishna and others, (2001) 4 SCC 71 to impress that welfare of child is the paramount consideration in the matters of custody.

7. On the other hand, learned counsel for respondent by placing reliance on the d