The paramount interest in custody matters is the welfare of the children, and creating a congenial atmosphere for the children to meet the father is crucial.

G.S.SISTANI, J (ORAL)

1. Challenge in this appeal is to the order dated 18.12.2015 passed by Family Court on an application filed by the appellant herein seeking interim custody of his two minor children during the winter vacations commencing from 24.12.2015.

2. Notice was issued in the matter. The parties are present along with their counsel.

3. Counsel for the appellant submits that the order passed by the Principal Judge is wholly erroneous and contrary to law and facts and the same has resulted in gross miscarriage of justice. Counsel submits that the Family Court has erroneously relied upon the observations made by its predecessor that the children seem reluctant to meet their father. Counsel submits that the appellant being the father of the children has a right over them and it would be desirable that the children have equal access to both the parents and thus, the Family Court should have focused on the welfare of the children and, therefore, the order of the Family Court cannot be held to be in the best interest of the minor children. Counsel contends that the father is the natural guardian and he has full right to meet the children and the appellant cannot be deprived of his right to meet the children. It is submitted that the appellant was desirous to spend quality time during the winter vacation with his children, including taking them to some tourist place.

4. Counsel for the respondent submits that he has filed a reply in the Registry on 05.01.2016. The reply has been called to Court. Counsel for the respondent submits that the appellant has never thought of the welfare of the children nor acted in their interest. Moreover, till the time the children are comfortable, the appellant cannot be permitted overnight custody. He further submits that the past conduct of the appellant would show that the appellant had kidnapped/removed the children from the custody of the mother on 29.04.2011 as also on 08.05.2013 and for 20 days did not permit the minor children to meet their mother thereby traumatizing the children aged 06 and 04 years respectively. Counsel for the respondent further submits that the respondent was forced to file a habeas corpus petition W.P.(Crl). No.763/2014. Notice was issued and the appellant was directed to produce the minor children on 24.05.2013. Despite the direction, the appellant did not produce the children. The Court again adjourned the matter to 28.05.2013. Children were again deliberately not produced nor the appellant herein appeared in the matter and only after strict directions were issued, the children were produced on 29.05.2013 and the custody of the children was handed over to the mother.

5. Counsel further submits that the conduct of the appellant would further show that he despite an order of maintenance having been passed @ Rs.17,000/-per month, regular maintenance is not paid and has no concern about the wellbeing of his children as even as of today maintenance has not been paid for last four months.

6. Counsel further submits that since the children are not comfortable with their father, the Family Court has rightly rejected the application of the appellant for custody during the holiday including overnight custody. Counsel for the respondent further points out that the Family Court has granted meeting of one hour to the appellant on every 3rd Saturday of the month but the appellant has not been regularly meeting the children as per the order which would show that he is not interested in meeting his children. Counsel further submits that the sole aim and objective of the appellant is to harass the respondent which is evident from the fact that the respondent was residing in Delhi, children were studying in Delhi but the petition under the Guardianship Act was filed in Ghaziabad and when the respondent had approached the Hon’ble Supreme Court of India, the petition was withdrawn and refilled in Delhi.

7. Counsel for the appellant has strongly refuted all the allegatio