The welfare of the child is the paramount consideration in custody disputes, favoring the mother when she can provide a supportive environment.

ORDER :

(BIREN VAISHNAV, J.)

1. This First Appeal has been filed by the original applicant before the Family Court - Ashma Farukbhai Dakwala under Section 19 of the Family Court Act, 1984 . She had approached the Family Court by filing Civil Misc. Application No.51 of 2019 for getting custody of her minor daughter Aayesha from the respondent father under Section 25 of the Guardians and Wards Act, 1890 . By the Judgment and Decree dated 08.04.2024 passed by the Family Court No.3, Ahmedabad, the application came to be rejected. Hence, the appeal.

2. Facts in brief indicate that the marriage between the appellant and the respondent was solemnized on 28.03.2010. Out of the wedlock, daughter Aayesha was born on 02.11.2014. Before the Family Court it was the case of the applicant that she was driven out of her matrimonial home in August, 2018. On 19.11.2018, a notice of Talaq was sent to her and hence she was then compelled to perform Iddat for three months. She then resorting to Section 97 of the Code of Criminal Procedure on 18.03.2019 sought custody of her daughter. The application was then filed under Section 25 of the Guardians and Wards Act in the year 2019 inter alia praying for custody of her daughter. In the interim application filed for custody, by virtue of order passed by this Court in the First Appeal, visitation rights were granted to her as directed in the order of the First Appeal. By the impugned order, her application for custody has been rejected. The contents of the application before the Family Court indicate that it was her case that at the time when custody was sought, Aayesh was aged 4 years. That she was not being taken care of by her father. That she was being made to undertake house-hold works in light of the fact that her mother-in-law was bed ridden and that her husband had a step father with whom the mother- in-law was residing. Before the Family Court, she had by way of evidence sought to produce photographs as she was residing adjacent to the house of her husband from where she could visually view the house of the husband where the child was in custody.

3. In short, it was her case that as a mother she would naturally be befitting to have the custody of her minor daughter as she was capable of taking care of her because apart from her, in the family she had her sister and her mother. As compared to this, the family of her in-laws consisted of her husband, and her step father. The only female member in the house was her mother-in-law who was bed ridden and she therefore, was not in a position to take care of the daughter. The applicant offered herself for examination-in- chief and cross-examination and she stood by her statement made in the memo of the application. She was examined at Exh.-28.

3.1 The respondent husband filed written statement contesting the custody application. In the written statement apart from making claim that as a father he was competent to have custody of the daughter and that custody had remained with him for over a period of 6 years, there was no reason why the daughter’s custody be moved out of his control to that of the mother. In the written statement, it was the case of the respondent that the applicant was a quarrelsome wife, that she had an extra marital relationship with one Jitendra Mali and therefore, being a lady of doubtful character, she was not entitled to the custody of daughter Aayesha. It was further his case that he was economically sound inasmuch as he was a lawyer of good practice, his step father was also working as a lawyer and that since fees and expenses of the child’s education were borne by him, the custody ought to be retained by him, the father. He also, in support of his evidence apart from being examined and cross-examined, had sought to bring on record phone chats and video clips and copy of a diary recovered from the possession of the wife to indicate that the wife was in relationship with one Jitendra Mali from whom they would purchase groceries and