The paramount consideration in deciding custody cases under the Guardians and Wards Act is the welfare of the child, taking into account the ability of each parent to provide care and education.

JUDGMENT :

A.J.DESAI, J.

1. By way of present appeal under Section 47 of the Guardians and Wards Act, 1890 read with Section 19 of the Family Courts Act, the appellant – original opponent – father has challenged the judgment and order dated 27.10.2021 passed by the learned Principal Judge, Family Court, Jamnagar in Misc. Civil Application No.3 of 2020 which was filed by the respondent – original applicant – mother for the custody of the minor child Om aged about 5½ years at that time under Section 25 of the Guardians and Wards Act and the said application has been allowed and the present appellant – father is directed to hand over the custody of the minor child Om to the respondent mother on certain terms and conditions.

2. The appeal came to be admitted after hearing the parties by order dated 8.12.2021 by the Coordinate Bench. Since the child Om was studying in the school and was residing with the appellant – father at Rajkot, by order dated 23.12.2021, stop gap arrangement was made for the welfare of the child Om by directing the appellant father to drop the child Om with the respondent mother, who was residing at Jamnagar, on every Friday at 5:00 p.m. It was further directed to pick him up on every Sunday at 6:00 p.m. The said stop gap arrangement is continued till date.

2.1 The Record & Proceedings were also called for and accordingly, the same has reached to this Court.

2.2 This Court has also called for the parties along with the child Om to remain present before the Court by order dated 23.3.2022. Accordingly, both the parties along with the child Om remained present on 29.3.2022. The matter was taken-up in the Chamber and thereafter, the matter was adjourned to 12.4.2022 for further consideration. Since, it is prima facie found that there is no possibility of settlement between the appellant – father and the respondent - mother, the matter is listed for final hearing today.

3. Though the Family Court has directed to hand over the custody of the child to the respondent wife, in his interest, the parties have agreed that minor Om should continue his study at Rajkot staying with his father. This appeal has been taken-up for final hearing in view of the fact that new academic year would start latest by 2nd week of June-2022 and therefore, it is desirable for the future of the child Om that the issue of custody is decided so he can pursue his study at appropriate place.

4. The short facts arising from the record are as under:

4.1 That the marriage between the parties was solemnized on 9.2.2012 at Jamnagar as per the Hindu rites and rituals. Thereafter, the respondent wife started to reside with the appellant husband at her matrimonial home at Rajkot. Out of the said wedlock, the respondent wife delivered a baby boy on 6.3.2014 who was thereafter named as Om. The marriage life was initially smooth, however, in the month of January-2019, some dispute arose and therefore, they started living separately. The respondent mother started living with her parents along with her child Om at Jamnagar at her parental house. The relatives of both the sides tried to settle the dispute between the parties and as per the case of the respondent mother, on 3.6.2019, her husband, his parents and other relatives visited her parental house for settlement and brought back the child Om. It is also the case of the respondent mother that her family members requested for custody of the child Om for 10 days, however, custody of the child Om was not handed over. Therefore, the respondent mother filed application under Section 25 of the Guardians and Wards Act, which is the matter in question.

4.2 During the pendency of the proceedings, application for interim custody was also moved by the respondent mother for the son Om who was allegedly taken away by the appellant father by force under the pretext of settling the issue as she was always ready and willing to stay with her husband and wished to continue her marriage life.

4.3 The respondent – mother examined he