JUDGMENT :

(1.) Heard Mr. Samir Afzal Khan, learned advocate for the appellant-wife as also Mr. Bhunesh C. Rupera, learned advocate for the respondent-husband.

(2.) This appeal is filed under Section 47 of the Guardian and Wards Act, 1890 challenging order passed by the learned Judge, Family Court No.3, Ahmedabad dated 21.2.2019 rendered in Civil Misc. Application No.52 of 2017 whereby, the application preferred by the wife for custody of minor son' Dhrij' wrongly stated as 'Dwij' in the impugned judgment and order as submitted by learned advocate for the appellant, who was then 2 years, came to be refused.

(3.) Mr.Samir Afzal Khan, learned advocate for the appellant submitted that considering the age of the child at the time of filing an application being 2 years in view of Section 6 of the Hindu Marriage Act, 1956 ordinarily custody of the child should be handed over to the wife as per the mandate of the statute. He has further submitted that despite her efforts to get the custody or visit the child, she has been deprived and no custody was handed over to her. He has further submitted that the petitioner is also working woman and she can take good care of child as she is staying with her parents as also brothers and sisters.

(4.) Assailing the impugned judgment and order, it is submitted that now she has settled at Viramgam where she is serving as a Teacher. Therefore, along with the service, she can take good care of her child and therefore, custody is to be handed over to the petitioner-mother of a child.

(5.) Reading examination in-chief on oath filed by the petitioner before the Family Court and the cross examination, it is submitted that no one has attempted from the side of the respondent-husband to pursue her to join matrimonial home. He has further asserted that despite ill health of her father neither husband nor his family member have visited him. It is further submitted that she was also looking after her son very well though, at present he is suffering from which ailment, she does not know as the custody is not with her. Therefore, he has submitted that in view of the statutory provisions, the custody of the child 'Dhrij' be handed over to her by allowing this appeal filed by the appellant.

(6.) It is further submitted that in her application before the Family Court she had asserted that custody of the child 'Dhrij' was snatched away from her. However, admission in the cross examination is seen, she has clearly admitted that on 16.3.2017, leaving her son at matrimonial home in the evening that she went to visit her father as he was ill. However, it is further submitted that since then, she has not joined her matrimonial home therefore, claim made in the examination in chief that she being deserted and deprived of a custody of a child is incorrect.

(7.) As against that, Mr.Bhunesh Rupera, learned advocate for the respondent-husband drawing attention to the affidavit in reply submitted that as such, she deserted not only the husband but the child aged 2 years then, has been brought up by the respondent-husband with the help of his family members. On 16.3.2017 and thereafter, she has never returned to join the matrimonial life with the respondent-husband. He has further submitted that despite so many efforts along with the family members and other relatives to pursue her to join matrimonial home, she refused to do the same and on the contrary, she picked up quarrel and filed the complaint against not only the husband but other family members including relatives, in all 5, in number under Sections 498A, 323 and 114 of the Indian Penal Code (hereinafter referred to as 'the Code'), as also under Sections 3 and 7 of the Dowry Prohibition Act. However, as submitted by Mr.Rupera, learned advocate for the respondent-husband except husband, all have been honorably acquitted and against the conviction of the husband under Section 498A of 'the Code', appeal is already preferred, which is pending before the Court.

(8.) Not only that,