The paramount consideration in custody disputes is the welfare of the child, which must be assessed based on the parents' conduct and living conditions.

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. With the consent of the learned advocates of the respective parties, the matter is taken up for final hearing.

2. Admit. Mr.Vivek R. Trivedi, learned advocate, waives service of notice of admission on behalf of respondent.

3. The father is the appellant before us, who has challenged the judgment and order dated 29.04.2024 passed by the learned Family Judge, Family Court No.2, Ahmedabad in Civil Misc.Application No.100 of 2023 below Exh.41 filed by the respondent - mother seeking permanent custody of daughter “Riyu” under Section 25 of the Guardian and Wards Act. By the order under challenge, the application of the mother for custody of her daughter, has been allowed. Hence, this Appeal.

4. The facts in brief are as under:-

4.1 The application was filed by the respondent - mother under Section 25 of the Guardian and Wards Act for the custody of her daughter “Riyu”. The case of the respondent – mother was that she married the appellant on 01.12.2019. They were living together. Daughter “Riyu” was born on 17.10.2020. The case of the respondent - applicant before the Family Court was that the father - appellant started inflicting mental and physical cruelty, that he was a head strong person, drank alcohol and quarreled with the mother. It was not proper for the father to retain custody of the daughter.

4.2 In the application, the mother further stated that a false complaint of theft was filed against her on 10.11.2022. Pursuant to this complaint, she along with her daughter and her family members were called to the police station on 10.11.2022 at the Danilimda Police Station, she was threatened to confess the crime of theft and she having refused to do so, the police took away custody of her daughter and handed over the daughter to the father. The complaint before the police station regarding theft was lodged on 17.11.2022. She obtained anticipatory bail. Under this circumstance, she approached the Court that she, as a mother, being a natural guardian, would deserve the custody of the daughter looking to the welfare of the child.

4.3 The application was opposed by the appellant - father. That the case of the appellant - father is that it is he, who should be granted the custody as he was more financially capable of taking care of the daughter and it was in the interest of the child that the father be given custody.

4.4 Both the appellant – father and respondent – mother were examined and cross-examined and the Family Court, by the order under challenge, granted the custody to the mother. The father is, therefore, in appeal.

5. Mr.Manish Shah, learned advocate for the appellant - father would submit that during the currency of the marriage, the family, essentially the father and the mother of the appellant, noticed that some gold ornaments belonging to the family were missing. As a result thereof, the appellant filed an FIR on 17.11.2022 alleging that the wife - respondent had committed theft of the ornaments. He would, therefore, submit that prior to the filing of the complaint, the mother left the matrimonial home on 05.11.2022 with the daughter. Proceedings were initiated by her under the provisions of Section 97 of the Code of Criminal Procedure applying for a search warrant of the child. That application was rejected by the Judicial Magistrate First Class against which a revision application was filed, which was also rejected by the Court of Additional District and Sessions Judge, Botad.

6. Mr. Shah, learned advocate would also invite the attention of this Court to the order passed by the Session Judge at Botad to submit that the Application for search was rejected and therefore, it was in the fitness of things that the father retains the custody of the child. Taking us through the application is filed by the mother, Mr Shah would submit that not one averment is made in the application to suggest that the mother was entitled to the custody on the ground of paramount consideratio