IMPORTANT POINT
The welfare of the children is the paramount consideration in custody matters, and the conduct of the parents should be evaluated in relation to the children's welfare.

JUDGMENT

Neena Bansal Krishna, J.

"Adulterous Spouse" is not equivalent to "Incompetent Parent". Points for consideration in Divorce proceedings and custody matters may be co-related but are always mutually exclusive. Any adulterous relationship or extramarital affair of either spouse, cannot be the sole determining factor to deny custody of a child, unless it is proved that the adulterous relationship in itself is pernicious/detrimental/injurious to the welfare of the child.

1. The present Appeals under Section 19 of the Family Courts Act, 1984 read with Section 47 of the Guardians and Wards Act, 1890 (hereinafter referred to as "Act, 1890") has been filed on behalf of the both the parties respectively, against the Judgment and Final Order dated 23.12.2019 passed in GP No. 22/2019 filed by the mother/respondent under Section 25 of the Act, 1890, whereby both the parties have been granted joint custody of the minor children with the shared parenting as provided therein.

2. Briefly stated, the parties got married on 28.11.2004 according to Hindu rites and customs. From their wedlock, two daughters i.e., `S' was born on 17.04.2011 and `A' was born on 19.05.2013. The matrimonial life of the parties was tumultuous and strained and the parties ultimately got separated on 27.02.2018 i.e. for last about six years.

3. The respondent/mother had claimed in the Petition that the behaviour of the appellant/father was erratic and irresponsible. He had run away to some ashrams and unknown places and had abandoned the respondent/mother and the two aforementioned daughters for a period of 2.5 years from 24.08.2014 till March, 2017. During this period, she was forced to stay at her parental house along with kids, and she took care of the children as well as her in-laws all by herself. Subsequently, though the husband returned and the respondent/mother shifted to Noida along with him in an attempt to save their married life, but their relations did not improve.

4. It was further asserted that their children were kidnapped by the sister of the appellant/father and removed from the custody of the respondent/mother, on 16.02.2018 and the appellant/mother was ousted from the matrimonial home on 27.02.2018. Since 16.02.2018 she was not even allowed to talk to children on phone as they have been in the custody of the appellant/father and she did not know the whereabouts of the children. Aggrieved, the mother filed the custody petition seeking permanent custody of both the daughters.

5. Per contra, the appellant/father asserted in the Written Statement that the Guardianship Petition is a counter blast to the Divorce Petition filed him on 13.02.2018 against the respondent/mother on the grounds of cruelty and adultery and to the criminal complaint filed by him on 28.03.2018 against petitioner and her paramour Amit Garg, for the offence u/s 497/498/34 IPC, in Gautam Budh Nagar Court, Noida.

6. He further alleged that the conduct of the respondent/mother was irresponsible as she did not take care of the minor daughters. She invested most of her time and energy in her illicit relationship with her paramour Amit Garg, thereby neglecting the minor children. Hence, the respondent/mother has no motherly care and concern for the minor daughters.

7. The appellant/father further explained that he had caught the respondent/mother and her paramour, Amit Garg in Hotel Apple Pie, Sector-30, Noida, on 16.02.2018 which had precipitated the entire incident of separation of the parties and the children.

8. It is not in dispute that a divorce petition was filed by the appellant/father on 13.02.2018, while the parties were still residing together. Soon, thereafter, the Guardianship Petition No. 22/2019 was instituted by the respondent/mother on 21.08.2018.

9. The issues on the pleadings were made on 25.02.2019 which read as under:

"i. Whether the petitioner, being mother, is entitled to the custody of the minor girls named S and A aged seven and half years and five and half years on t