The welfare and interest of the child is the primary criteria for deciding custody and guardianship of a minor, and the financial status of the parties, the willingness of the children to stay with their father, and the paramount interest of the children are crucial factors in deciding custody.

JUDGMENT :

RAJEEV MISRA, J.

1. Challenge in this appeal under section 47 of Guardian and Wards Act, 1890 (hereinafter referred to as 'Act, 1890'), wrongly mentioned as Section 19 Family Court Act, 1984 is to judgment dated 1.5.2017, passed by Principal Judge, Family Court, Baghpat, in Misc. Case No. 01 of 2013 (Smt. Komal Vs. Arvind Kumar), under section 25 of Act 1890 whereby claim of plaintiff mother for custody of her minor children has been rejected.

2. We have heard Mr. Krishna Mohan Tiwari, learned counsel for appellant and Mr. Mahesh Sharma, learned counsel for respondent.

3. It transpires from record that marriage of appellant was solemnized with respondent Arvind Kumar on 22.2.1999 in accordance with Hindu Rites and Customs. After marriage, appellant came to her matrimonial home and discharged her espousal obligations. Inspite of aforesaid, respondent and his family members did not extend love and affection to appellant. Their conduct towards appellant was vindictive and aspersions were cast upon her for not bringing sufficient dowry. The matrimonial bond however continued and from wedlock of appellant and respondent, a daughter namely, Chavi and a son namely, Nakul were born. It is alleged by appellant that respondent was a drunkard and under spell of intoxication, used to assault and abuse appellant. Ultimately, appellant alleges to have been ousted from her matrimonial home on 16.2.2010 but custody of minor children was retained by respondent. Apprehending damage to the personality of her minor children on account of bad habits of respondents and further that they may not come up with strong moral character, coupled with refusal on part of respondent to hand over custody of minor children, appellant filed Suit No. 01 of 2013 (Smt. Komal Vs. Arvind Kumar) under section 25 of Act, 1890, claiming custody of her minor children. It was also pleaded by appellant that respondent is not paying required interest for welfare of minor children. They are unable to study properly. The minor daughter of appellant is being looked after by her grand mother. As appellant is capable of looking after her minor children and also a natural guardian of minor children, therefore, their custody be given to appellant.

4. Suit filed by appellant was contested by defendant respondent by filing a written statement whereby not only plaint allegations were denied but also additional pleas were raised. It was pleaded by respondent that appellant is incapable of meeting educational expenses of minor children as she herself has filed case No. 69 of 2011 under Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'Act, 2005') wherein she has claimed interim maintenance on account of financial constraints Appellant has also filed a case under section 125 Cr.P.C. in the competent Court at Muzaffarnagar for payment of maintenance. Minor son Nakul is studying in Class-XI at, Diwan Public School, which is one of the best public schools in Meerut. The respondent is himself bearing expenses of his son. The Phupha and Buwa of minor have been appointed as guardian, as they are working in Meerut. Photocopy of certificate showing payment of fees was filed in evidence to support the same. In respect of minor daughter Chavi, it was pleaded that she is studying in Class-V at C.B.S.M Public School. The respondent is bearing her educational expenses. The minor daughter is being looked after by respondent along with his parents. Photocopy of fees card pertaining daughter, Chavi, was also filed in evidence. It was then urged that respondents is looking after his minor children to the best of his ability and means, they are receiving good education. Appellant is living separately, since 16.2.2010, without any reason. Appellant is unable to sustain herself and to get the amount of maintenance enhanced, she has filed application for custody of minor children to exert pressure upon respondent. On the aforesaid pleas, it was submitted that applicati