The welfare of the child is paramount in custody disputes, and procedural technicalities should not impede substantive justice.

JUDGMENT

MANOJ JAIN, J

1. Another battle between the two sparring spouses over custody of their child.

2. For the sake of convenience, I would be referring to the petitioner Sh. Pankaj Jain as “father” and respondent Ms. Parul Jain as “mother” in the present judgment.

3. The facts are somewhat unusual and multifaceted.

4. The parties got married on 22.04.2006 in accordance with Hindu rites and ceremonies. They were blessed with a baby girl on 11.02.2013.

5. The mother left matrimonial home along with her daughter on 10.03.2018.

6. Soon thereafter, the father filed a petition seeking divorce on the ground of cruelty. Such petition is pending adjudication and we are, presently, not concerned with the same.

7. The matter herein relates to one Guardianship Petition filed by the father.

8. Such petition was filed in May, 2018 under Section 7 and 25 of the Guardians and Wards Act, 1890 (in short “G&W Act”). The petition has been registered as GP No.54/2018 and seeks custody of said daughter.

9. The abovesaid petition is being contested, tooth and nail, by mother. On the basis of the averments appearing in the pleadings, the following issues were framed: -

I. Whether petitioner is entitled to permanent custody of minor daughter Ms. Pinar Jain? (OPP)”

II. Relief.

10. In the interregnum, there were also directions regarding interim custody for weekends, including overnight custody and the custody during the vacation and certain special occasions and festivals.

11. According to the father, their daughter was uncomfortable with her mother and since her such distress level continued to go up, she came to his house on 16.03.2023, claiming that she had decided not to stay with her mother anymore.

12. Thus, according to father, their such daughter was not at all interested in going back to her mother, being in a very bad psychological state on account of conduct of her mother. Whereas, according to the mother, there was nothing of that sort and, actually, she had been tutored by her father.

13. And, as already noted, the father wanted her custody and for said purpose only, he had filed the above guardianship petition.

14. It will be also appropriate to mention, albeit in brief only, that during further proceedings, the learned Family Court directed the father to restore the custody to her mother, else to face arrest. Aggrieved by such order, the father filed an appeal before learned Division bench of this Court, which was dismissed summarily.

15. Eventually, the father i.e. the petitioner herein filed a Special Leave Petition (SLP) before the Hon‟ble Supreme Court. The Hon‟ble Supreme Court stayed arrest and also interacted with the child.

16. Said petition i.e. SLP (C) 14915/2023 was disposed of on 15.02.2024 and it will be appropriate to extract the abovesaid order, which reads as under:-

“Heard learned counsel for the petitioner and the respondent.

The dispute out of which the present proceeding arises is over custody of the girl child of the parties. The petitioner and the respondent, being the mother and father of the child have matrimonial disputes and are living separately. The father‟s application for custody of the child under Sections 7 and 25 of the Guardianship and Wards Act, 1890 registered with the Family Court, Tis Hazari(West), Delhi is still pending. On 5thJuly 2023, an order was passed by the Family Court in certain interlocutory proceedings in connection with the aforesaid petition in exercise of jurisdiction under Section 45 of the 1890 Act, directing, inter-alia, handing over custody of the child to the mother by the next day. The father preferred an appeal in the High Court of Delhi against the said order and a Division Bench of the High Court on 10thJuly 2023, dismissed the said appeal. In this petition, the aforesaid order of the High Court has been assailed.

We are of the view that the Family Court would be the appropriate forum for taking a final decision on the question of custody in the pending petition made under Sections 7 and 25 of