The welfare of the minor is the paramount consideration in guardianship matters, and the prescription that a child below 5 years should ordinarily reside with the mother should be considered in assessing the best interests of the children.

JUDGMENT :

SUDHIR MITTAL, J.

1. Children are innocence personified. For their ideal development, it is essential that the period of innocence be cherished and protected. This however remains a pipe-dream where parents clash. Reasons for such clashes may be many but primarily it is ego or lust. One or the other parent is unable to check this primordial urge even though parents are supposedly mature and responsible. As a result, the children suffer. Courts are asked to decide what is in their best interests because the parents have abdicated their duties and responsibilities.

2. Facts in brief are that marriage between the parties was solemnized on 03.05.2008. A male child namely Lakshin was born on 16.07.2009 and a female child namely Tiana was born on 13.03.2017. Thus, Lakshin is presently about 11 and a half years old and Tiana is about 04 years old. The parents have separated since 16.02.2019. The case of the wife is that she has been thrown out and has not been permitted to take the children along with her, whereas the husband says that she has deserted the family. Be that as it may, the fact remains that a petition under Sections 7, 10 & 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as the Guardian Act) has been preferred by the wife on 30.05.2019 in which an application under Section 12 thereof has been filed for grant of interim custody. The said application has been rejected vide impugned order dated 05.02.2020. However, the mother has been permitted to meet the minor children as provided in the said order.

3. The petitioner-mother was working as a teacher in Delhi Public School, Sector 40, Chandigarh, since April, 2009. She resigned on 15.02.2019. She is a Post Graduate. After the separation, she has taken up a teaching job in June-July, 2019 in Panchkula. Currently, she is residing with her parents in Mansa Devi Complex, Panchkula.

4. While issuing notice of motion, an Amicus Curiae was appointed to interact with the parents and the minor children so that an assessment could be made regarding the best interests of the children. The learned Amicus Curiae has submitted her report dated 14.08.2020 and the same has been perused. In the said report, incidents which took place during various meetings have been narrated and the response of the children to different situations has been recorded. It emerges that the children miss their mother's company. It also emerges that Lakshin, being older in age, is being indoctrinated against his mother. Despite the same, he is keen on meeting his mother and enjoys her company. Instances have been recorded which reflect that the father and the paternal grandmother bad mouth the mother in front of the children with the aim of alienating them from her. On the other hand, the mother has never attempted to do the same against the father or the paternal grandparents.

5. Learned counsel for the petitioner has argued that Tiana is below 05 years of age and Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as the Minority Act) stipulates that custody of such child should ordinarily be with the mother. This legal position has been ignored by the learned trial Court. The petitioner is working as a teacher and lives with her parents who are extremely affectionate. In such an environment, the children would blossom whereas in the company of their father and paternal grandparents they are withering. This has been revealed to the petitioner by the children during the course of telephonic conversations. Allegations of infidelity made against the petitioner are false and are the outcome of a perverted mind. The trial Court has found that the same are unproved and yet it has relied on the said allegations to deny interim custody. Thus, the impugned order deserves to be set aside being perverse and contrary to law. Reliance has been placed upon Division Bench judgment of this Court in Mukul Chauhan vs. Neha Aggarwal and others, 2019(4) RCR (Civil) 342 and