The welfare and interest of the child are paramount in determining custody, and the role of the mother in the child's development is crucial.

JUDGMENT :

ASHOK KUMAR VERMA, J.

1. This order will dispose of FAO No.4545 of 2017 and CREF No.3 of 2018 as common questions of law and facts are involved in both the cases. FAO No.4545 of 2017 arises out of the judgment dated 30.5.2017 passed by the Family Court, Gurugram whereby petition under Sections 7 and 25 of the Guardian and Wards Act, 1890 (for short “Act of 1890”) read with Section 6 of the Hindu Minority and Guardianship Act, 1956 (for short “Act of 1956”) filed by the respondent-mother was allowed against the appellant-father thereby giving the custody of the minor girl, namely, Dishita to the respondentmother.

The Civil Reference (CREF No.3 of 2018) arises out the applications filed by the appellant/father-Rajat Agarwal for interim custody of the girl child before the Court of learned District Judge, Family Court, Gurugram, which were transferred to this Court from the Family Court vide order dated 5.4.2018 passed by this Court in TA No.851 of 2017.

2. The foundation of a happy marital home is love, sharing of joys and sorrows, and not in that sense bricks and concrete. There should be cementing of hearts and not cementing of floors and walls. Ultimately, in the fight between the partners, the victims more often than not are the children. It is unfortunate that in their fight more often on account of egoism and misunderstandings/misconceptions, the children suffer, more particularly when the child is a girl. The child has practically no role in the discord of the marriage, but he or she suffers. The marital discord sometimes reaches such a height that the parties are unmindful of what psychological, mental and physical impact it has on child/children. The best way to make children good is to make them happy.

3. A brief reference to the factual aspects leaving out the maize of unnecessary facts would suffice. The parties got married on 17.4.2006 at Gurugram and out of the said wedlock, a female child, namely, Dishita was born on 15.1.2008. After some time of the marriage, the relations between the appellant and the respondent ran into rough weather. The respondent-wife has lodged an FIR dated 21.10.2016 under Sections 498- A and 406 IPC against her husband and his parents. The respondent-wife also filed a complaint in the month of February, 2017 under the provisions of the Protection of Women from Domestic Violence Act, 2005. The respondent-mother filed petition under Sections 7 and 25 of the 1890 Act read with Section 6 of the Act of 1956 before the Family Court, Gurugram for the custody of the minor female child on the ground that the appellant-father was not taking care of the minor girl and further schooling and career of the minor was unsafe etc. From the pleadings of the parties, the Family Court framed the following issues:-

“1. Whether the petitioner is entitled to the custody of the minor Dishita Agarwal, as prayed for?OPP

2. Whether the petition is frivolous and vexatious. If so its effect?OPR

3. Relief.”

4. In support of her case before the Family Court, the respondent-mother examined herself as PW1 and her father, namely, Sushil Goyal as PW2. She adduced the documents which are Ex.P1 (copy of report card of minor daughter Dishita Agarwal), Ex.P2 (copy of orders of school case), Ex.P3 (copy of petition under DV Act case) and Ex.P4 (a certified copy of charge sheet in FIR No. 625 of 2016).

5. On the other hand, the appellant-father examined himself as RW-1 and his father, namely, Anand Parkash Agarwal as RW2. He adduced the documents in evidence which are Ex.R1 and Ex.R2 (Copies of Bank statements).

6. The Family Court, after hearing both the parties, allowed the petition of the mother vide its judgment dated 30.5.2017 and gave the custody of the minor girl- Dishita to her mother. Hence, the appellantfather has filed the present appeal under Section 19(1) of the Family Courts Act, 1984.

7. The appellant, who is himself a practising lawyer, has appeared in person and, inter alia, submitted that the appellant being th