The welfare of minor children is the paramount consideration in custody disputes, with preference for the mother as primary caregiver, irrespective of financial circumstances.

ORDER :

(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

1. This appeal under Section 19 of the FAMILY COURTS ACT is filed against judgment and order dated 17.09.2024 passed by the Principal Judge, Family Court, Gandhinagar in Civil Misc.Application No.10 of 2022. By the said impugned judgment and order, the application filed by the respondent-wife was allowed.

2. The Court had issued notice and learned Advocate Mr.V.B.Vaghela has appeared on behalf of the respondent. As considering the nature of issue involved and as the relevant document of the case are already submitted, at the request of both sides, the appeal is taken up for final hearing.

3. The original proceedings before the Family Court were under Section 25 (1) of the Guardians and Wards Act, 1890 for permanent custody of their twin children, viz. Minor Pranay AND Pranjal. The proceedings were filed by the respondent-wife. The Family Court allowed the application and granted custody to wife and visitation to the appellant husband.

4. Learned Advocate for the appellant-husband has argued that the best interest of the minors lies in the husband having custody as he has sufficient financial means to support the children, also the children were going to a very good pre-school and their future is secured in a city like Ahmedabad.

4.1 It is submitted that the appellant has already spent good amount to secure their future by making proper financial investment in insurance policy.

4.2 Learned Advocate for the appellant submitted that the appellant is better positioned to take care of the children as his employment require him only to attend office till 03;00 pm and then he can attend his children and during his office hours, his mother (grand-mother of children) is there to take care, whereas the respondent-wife is staying alone and is working as a lawyer, so she has to rely upon her parents, who are staying at a different place. Also, as per the appellant, the family atmosphere is not proper for upbringing of the children.

4.3 It is further submitted that the respondent-wife, after the impugned order, in highhanded manner, took the custody of the children.

4.4 It is lastly submitted that the respondent-wife has not got financial support and therefore, only she has claimed maintenance on the ground that she is not able to maintain herself.

5. Learned Advocate for the respondent-wife has refuted this claim by submitting that the husband has a full time job starting from 06;00 am onwards, therefore, he is completely relying on the grand-mother, who also is aged.

5.1 It is submitted that it is the responsibility of the father to financial support the upbringing of the family.

5.2 It is submitted that the children being minor, the best interest would lie with the mother and that the mother, though a lawyer by profession, is well discoursed to take care of minors.

6. The Court has considered the rival submissions of the parties. The issue that arises is the paramount interest of the minor children, whether the best interest lies in custody with the mother or father.

7. Section 6 of the HINDU MINORITY AND GUARDIANSHIP ACT , 1956 reads as under:-

“6. Natural guardians of a Hindu minor.—The natural guardians of a Hindu minor; in respect of the minor's person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are—

(a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl—the mother,