IMPORTANT POINT
The welfare of the child is the paramount consideration in custody disputes, and the court must ensure judicial discipline and adherence to judicial discipline.

JUDGMENT :

Shree Chandrashekhar, J.

The judgment dated 26th July 2022 in Original (Guardianship) Suit No. 5 of 2016 (in short, Guardianship case) has been challenged by the mother, maternal grandfather, and maternal uncles of Deepanshu Darshan and Shreya Kumari @ Suddhi @ Arohi by filing First Appeal No. 87 of 2022 under section 19(1) of the Family Courts Act.

2. In the judgment dated 26th July 2022 (in short, 2nd Judgment) passed in the Guardianship case, the Principal Judge, Family Court, Giridih has held as under:

“19. It is true that there is no rule of law that a child of tender years should remain with mother. Whether it is better for the child to be with the mother or the father, depends the particular circumstances of each case. After perusing of overall materials and evidence on the record, it has come out that respondent-1/wife has no personal income and she depends upon either maintenance allowance or her parents. While the petitioner/father is a Associate Professor at RIMS, Ranchi and he has possess decree of M.B.B.S M.D. It appears that the petitioner/father can give good education to the minors in a good school at Ranchi and other places. Whereas, the mother has no secured income, dependent on the either maintenance or her parents. It is apparent that both the child have been living with the mother right from 12.07.2014 onwards. The both the children have now attend the age of about 13 years and 8 years and the fact that they have remained with the mother for last 7 years at village-Mirzaganj, PS-Jamua, District-Giridih which is 40 KM away from Giridih District Headquarter. In this connection, it is also necessary to note that the conditions available in the house of the maternal grandfather a village Mirzaganj is not claimed to be in any way detrimental to the welfare of the children. I am of the view that the children should be with the petitioner/father. The respondent no-1, mother is not in a position to look after the educational need of the son and daughter. In my opinion, looking to the peculiar facts of the case, it would be in the interest of the children that they stay with father. I am sure that the petitioner/father, who is a M.B.B.S M.D at RIMS, Ranchi is a well groomed person, with the help of his mother, namely, Kaushalya Devi, will be able to take very good care of children. Their education would not be adversely affected even in Ranchi as it would be possible for the petitioner to get them educated in a good school at Ranchi. The grand-mother of the children would also be in a position to look after the both children and infuse good culture values into them. Normally, grand-mother can spare more time with their grand children. In considering the question of the welfare of the minors due regard has of course to be paid to the right of the father to be the guardian, and also to all other relevant factors having a bearing on the minors welfare. The presumption is that a minors parent's would do their very best promote their children welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children. In this case, it is crystal clear that father to be entrusted with the custody of his both minors children (son and daughter) and considerations of their welfare, the father fitness has to be considered, determine and weighed predominantly in terms of the welfare of his minors children in the context of all the relevant circumstances.

20. At the time of hearing, the ld. Counsel for respondents has argued that the respondent no-1 lodged three criminal matrimonial case against the petitioner/husband and further there is several cases are pending in between the parties. Further the petitioner failed to search his son and daughter whereabouts. In this situation, the petitioner is not entitled for custody of the children. In my mind mere pendency of a criminal