The welfare of the child is the paramount consideration in custody matters, and the issue of permanent custody can be decided by an appropriate Family Court/Guardianship Court.

SANJEEV SACHDEVA, J.

CRl. REV. PET. 76/2018 & CRL.M.A.1555/2018 (stay)

1. Petitioner seeks quashing of order dated 16.10.2017 of the Mahila Court and order dated 18.01.2018 of the Appellate Court, whereby, the appeal of the petitioner, impugning order dated 16.10.2017 of the Mahila Court, was dismissed and the petitioner/father was directed to handover the interim custody of the minor daughter to the respondent/mother.

2. Respondent/mother had filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 and inter alia asked for custody of the minor child aged about 2 years.

3. Both the Mahila Court as well as the Appellate Court noticing the gender as also the age of the child were of the view that there is nothing on record to show that it would be detrimental to the interest of the minor child if the custody of the minor child was given to the mother. Both the Mahila Court as well as the Appellate Court were of the view that the issue of the permanent custody could be decided by an appropriate Court/Guardianship Court and the Mahila Court could only decide on the issue of temporary custody.

4. Petitioner has impugned the orders of the Mahila Court as well as the Appellate Court primarily on the ground that it would not be in the interest of the child if the custody is granted to the mother.

5. Petitioner/father has contended that the Respondent/mother had left the matrimonial house without any reasonable cause and has deserted both her husband and her child and, as such, was disentitled to custody of the child. Further, it is contended that the mother does not have any independent source of income and, as such, would not be in a position to take care of the child.

6. Further, it is contended that the atmosphere at the residence of the mother is not cordial as the mother of the respondent has filed several cases against her son.

7. Per contra, learned counsel for the respondent submits that the petitioner/father is not residing with the minor child and the minor child lives in Hisar with the grandmother whereas the petitioner father works in Kota.

8. Further, it is contended that the respondent mother is living with her brother at his house and there is no material to show that the atmosphere at the house of the brother where the respondent is residing is not cordial.

9. Before adverting to the legal rights of the parties, some brief background of the factual matrix would be necessary to be referred to.

10. Parties were married according to Hindu Rights and Ceremonies on 27.10.2014. A female child was born on 17.11.2015. The allegation of the petitioner is that the respondent deserted the petitioner and the child and left her matrimonial home on 28.10.2016. The contention of the respondent wife is that she did not voluntarily leave the house but was forced to leave the house and was deserted by the petitioner.

11. Subject petition under Section 12 of the Protection of Women from Domestic Violence Act was filed on 31.01.2017. Application seeking custody of the minor daughter was filed on 15.07.2017. By the impugned order dated 16.10.2017, the Mahila Court was of the view that since the female child was less than 2 years of age and needs care of the mother, interim custody was granted to the respondent mother. This order has been upheld by the Appellate Court.

12. On 12.04.2018, under orders from this Court, the child was produced in Court. Since the child had not seen her mother for nearly 1½ years and was aged only about 2½ years, efforts were made for the child to meet her mother, however, the child was not comfortable with her mother. This Court directed that a meeting be organized in the Delhi High Court Mediation & Conciliation Centre between the mother and the child in the presence of a Child Psychologist/Counsellor.

13. Thereafter, report of the Child Psychologist/Counsellor Ms. Swati Shah dated 04.05.2018 was received. Subsequently, further meetings were also directed between the mother and