The welfare of the child is the paramount consideration in deciding custody matters, and the court must ensure a congenial atmosphere for the upbringing of the children.

Rajiv Sharma, J.

This petition is instituted against the orders dated 18.8.2015 and 24.8.2015 rendered by the Civil Judge (Senior Division), Court No.2, Shimla in case No.6-2 of 2015.

2. “Key facts” necessary for the adjudication of this petition are that marriage between petitioner and respondent No.1 Gaurav Rana was solemnized on 29.1.2007. Two children were born. Son, namely, Yuvraj is approximately 7 years of age and daughter is approximately 5 years of age. The relations between petitioner and respondent No.1 are strained. Petitioner has taken away the children to her parents’ house. Children were admitted in Adarsh Senior Secondary School on 14.8.2015. They are pursuing their studies at Pragpur. Respondents filed a petition under section 6 of the Hindu Minority and Guardianship Act, 1956 read with sections 25, 7, 8 and 10 of the Guardian and Wards Act, 1890 for the custody of minor children before the learned Civil Judge (Senior Division). Application under section 12 of the Guardian and Wards Act, 1890 was also filed. Civil Judge (Senior Division) allowed the application on 18.8.2015 and directed the petitioner to produce the minor son Yuvraj before the court between 10.00 A.M. to 4.00 P.M. on 22.8.2015.

3. Petitioner filed an application under section 151 of the Code of Civil Procedure for recalling/modification of order and also application for extension of time to produce the child before the trial court. She also filed an application under sections 9 (1) and 3 of the Guardian and Wards Act, 1890 for returning the petition to be presented before the appropriate court. Petitioner was permitted to file the reply and show cause notice was issued to the petitioner why contempt proceedings for deliberate disobedience of order dated 18.8.2015 be not initiated against her. Hence, the present petition.

4. Ms. Anjali Soni Verma has vehemently argued that orders dated 18.8.2015 and 24.8.2015 are not in accordance with law. She has also argued that while deciding the custody of child, paramount consideration is the welfare of the child.

5. Mr. Sanjeev Bhushan, learned Senior Advocate has supported the orders dated 18.8.2015 and 24.8.2015.

6. I have heard the learned counsel for the parties and have gone through the record carefully.

7. The marriage between petitioner and respondent No.1 was solemnized on 29.1.2007. Son Yuvraj is 7 years old. He needs constant care and protection by the mother. It has come on record that respondent No.1 is in habit of consuming liquor and taking drugs. He used to go for treatment in habitation centre Panthaghati. Congenial atmosphere is of utmost importance while up-bringing the children. Learned Civil Judge (Senior Division) while ordering the custody of the child to the respondents has opined that Yuvraj was studying in reputed St. Edwards’ School, Shimla and annual examinations are to be held in the month of December. He has also opined that respondent No.1 is a businessman having sufficient means to take care of his son Yuvraj. It is reiterated that it is not affluence of the party which is to be taken into consideration, but the existence of congenial atmosphere is also required to be taken into consideration while deciding the custody of the children. In view of this, the court below has erred in law by directing the production of child in the court on 22.8.2015 and rejecting the application for modification of the order and issuing show cause notice to the petitioner for violation of order dated 18.8.2015. There is no inherent contradiction in the reliefs sought for by the petitioner while moving applications for extension of time as well as for compliance of the order.

8. Their Lordships of the Hon’ble Supreme Court in Rosy Jacob vs. Jacob A. Chakramakkal AIR 1973, SC 2090 have held that whether under one Act or the other the primary consideration governing the custody of the children is the welfare of the children and not the right of their parents. Their Lordships have held as under: