JUDGMENT SMT. ABHILASH AKUMARI, J. Rule. Mr. Soeb R.Bhoharia, learned advocate, waives service of notice of Rule on behalf of the respondent. On the facts and in the circumstances of the case, and with the consent of the learned counsel for the respective parties, the petition is being heard and finally decided today. 2. This petition has been filed under Articles 226 and 227 of the Constitution of India with a prayer to quash and set aside order dated 27.07.2009, passed by the learned Principal Judge, Family Court No.1, Ahmedabad, below application Exhibit 5, in Civil Miscellaneous Application No.35 of 2009, whereby, the said application filed by the petitioner-wife, inter alia for custody of her minor daughter Oshiya, has been rejected. 3. The brief facts of the case, relevant for the decision of the petition are as follows. The marriage of the petitioner and the respondent took place on 18.10.2001. It was a second marriage for the respondent who has a son by his first marriage, who is with the first wife but the first marriage for the petitioner who was aged 21 years, at the time. The petitioner is now aged about 28 years and the respondent is aged about 44 years. The petitioner married the respondent against the wishes of her family. It is the case of the petitioner that at the time of the marriage, she was unaware of the criminal background of the respondent, who is involved in about 29 criminal cases. The baby girl Oshiya was born at the home of the petitioner's parents on 04.04.2003, and is about six and half years of age, at present. According to the petitioner, on 21.10.2003, soon after the birth of Oshiya, the respondent was taken into judicial custody, in a criminal matter. The respondent remained in judicial custody for five years and was released on bail, on 24.04.2008. All this time, the petitioner looked after the minor girl and when she became old enough to attend school, the petitioner admitted Oshiya to Euro Kids Kindergarten School. According to the petitioner, it is she who has taken care of the upbringing, education and development of the child until her custody was handed over to the respondent. At present, the child is studying in Standard-I of Zydus School of Excellence at Ahmedabad. According to the petitioner, it is she who has taken care of the upbringing, education and development of the child until her custody was handed over to the respondent. At present, the child is studying in Standard-I of Zydus School of Excellence at Ahmedabad. After the release of the respondent from jail, the parties mutually agreed to separate and executed a Deed of Divorce on 04.10.2008, which was got registered. No legal proceedings were resorted to by the parties, for divorce. As per the Deed of Divorce executed between the parties, the custody of the minor girl was agreed to be handed over to the respondent-father. It was agreed between the parties that in case the father remarries or has a live-in relationship, the custody of Oshiya will be handed over to the mother, and vice-versa. Accordingly, Oshiya came to reside with her father at Ahmedabad. The petitioner earlier resided at Jamnagar, and presently, she lives at Vadodara with her father. On 03.01.2009, soon after the Deed of Divorce was drawn up, the petitioner preferred Criminal Miscellaneous Application No.22 of 2009 under the provisions of Section 97 of the Code of Criminal Procedure, for custody of her minor daughter as, according to the petitioner, the respondent used to indulge in undesirable activities and brought strange women to the house, which activities would have an adverse impact upon the minor girl. On 17.02.2009, the Court rejected the said application on the ground that an alternative remedy was available. The petitioner, thereafter, preferred a habeas-corpus petition in the High Court, being Special Criminal Application No.324 of 2009, for the custody of the minor child. The petition was withdrawn on 25.02.2009 with liberty to avail of the alternative remedy. In this background, the petitioner preferred a substantive application, being Civil Miscellaneous Application No.35 of 2009, before the Family Court for custody, which is pending. An application at Exhibit 5 for interim custody was also preferred, that has been rejected by the impugned order, giving rise to the filing of the petition. 4. Mr. Amar D. Mithani, learned counsel for the petitioner has submitted that the impugned order has been passed mechanically, and without taking into consideration the welfare of the minor. The respondent is involved in 29 criminal cases and has remained in jail for a period of about five years, after the birth of the child. 4. Mr. Amar D. Mithani, learned counsel for the petitioner has submitted that the impugned order has been passed mechanically, and without taking into consideration the welfare of the minor. The respondent is involved in 29 criminal cases and has remained in jail for a period of about five years, after the birth of the child. In the application submitted before the Family Court, it has been specifically stated by the petitioner that the respondent indulges in activities that are not conducive to the welfare of the minor girl and brings girls to the home, in front of the child. Moreover, the respondent calls his friends to the house and indulges in drinking and this atmosphere is detrimental to the minor's welfare. It is submitted by the learned counsel for the petitioner that the memorandum of the application preferred before the Family Court contains the details of the activities going on in the house of the respondent, which would definitely create a bad influence on the minor. It would not be proper or advisable to expose the minor girl to such an environment as is being created by the respondent, and the petitioner should be given the custody, in the interest of the child. It is further submitted that the minor child Oshiya has expressed her willingness to reside with the petitioner and it would be injurious to the best interests of the minor if she is permitted to reside with the respondent. It is pointed out that Oshiya is suffering from a skin disease which requires localized treatment and this can only be taken care of, by the petitioner. There are no female members in the family of the respondent, though now the sister of the respondent is living with him. The lifestyle and criminal background of the respondent and the atmosphere in his house is not at all suitable for a minor girl to live in. It is submitted that even though the respondent has the custody, he is not paying the school fees regularly and it is the petitioner who is paying the fees, which can be seen from the receipts, annexed at pages 78 and 79 of the petition. The learned counsel for the petitioner has strongly argued that all these aspects have been totally ignored by the Family Court while passing the impugned order. The learned counsel for the petitioner has strongly argued that all these aspects have been totally ignored by the Family Court while passing the impugned order. The Court below has not considered the averments made in the application and has stated in the said order that the petitioner knew about the criminal cases of the respondent when the Deed of Divorce was executed, and has agreed to hand over the minor's custody to him, therefore she cannot claim it now, which reasoning is not only perverse, but is against the interest of the minor. It is strenuously urged by the learned counsel for the petitioner that the petitioner is an educated lady who has got a degree of Bachelor of Pharmacy from Gujarat University, whereas the respondent has only studied his 1st Year of B.Com. The petitioner is living with her father who undertakes to look after the education and upbringing and requirements of the minor girl and to ensure that she studies in a good school. The petitioner's family is comparatively well placed financially and the petitioner, herself, though a housewife till now, is looking for suitable employment. The petitioner and her family are in a position to look after the best interests of the minor girl and provide her with a good education and stable and comfortable family background, which would be more desirable for the child, than the lifestyle of the respondent. In view of the above circumstances, the impugned order may be quashed and set aside and the petition, allowed. The learned counsel for the petitioner has relied upon the following decision in support of his submissions : Gaurav Nagpal v. Sumedha Nagpal - AIR 2009 SC 557 . 5. On the other hand, Mr. Soeb R. Bhoharia, learned counsel for the respondent, has defended the impugned order by submitting that the Deed of Divorce entered into by the parties is a registered one, and as per Clauses 7 and 8 thereof, the custody of the minor is to be handed over to the petitioner only if the husband remarries or has a live-in relationship. As he has not remarried and there is no evidence on record that he is having a live-in relationship, the petitioner cannot ask for the custody of the minor. As he has not remarried and there is no evidence on record that he is having a live-in relationship, the petitioner cannot ask for the custody of the minor. It is further submitted that Section 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as “the Act, 1890”) speaks about restoration of custody if a ward leaves or is removed from the custody of a guardian, but in the present case, the parties have themselves agreed by the Deed of Divorce that the custody of the minor should be given to the respondent-father. The petitioner has no legal right to maintain the petition as the custody of the minor has never been taken away from her, but she herself has willingly handed the custody to the father. 6. When the case was taken up on 17.12.2009, the Court had orally inquired from the learned advocates for the parties, whether it would be possible for the minor girl to be brought to the Court. Today, the minor child Oshiya is present in the Court. I have spoken to her at length, in Chambers. Oshiya appears to be an extremely intelligent and sensitive child. She is old enough to know her mind and has the ability to express her feelings. Oshiya has clearly and unequivocally, expressed her desire to live with her mother. After speaking to her, I am satisfied that Oshiya is expressing her real desires and has not been influenced, or tutored, to say anything. At the same time, she has expressed a strong apprehension that if the respondent comes to know about her desire to live with her mother, he will take strong action against her. While speaking to me, the little girl was perfectly at ease and was talking freely and naturally. More than once, she expressed her desire and willingness to live with her mother, and categorically stated that she did not like to live at the respondent's home. After having spoken to the child, both the learned counsel for the parties were called to the Chamber. On seeing the learned advocate for the respondent, Oshiya suddenly became quiet and apprehensive and said that she wanted to go with her father. Asking the learned advocates to wait outside for some time, I once again inquired from the minor child why she had changed her stand, and what was her real desire. On seeing the learned advocate for the respondent, Oshiya suddenly became quiet and apprehensive and said that she wanted to go with her father. Asking the learned advocates to wait outside for some time, I once again inquired from the minor child why she had changed her stand, and what was her real desire. She was assured that no harm would come to her. A question was put to Oshiya whether she would like to go with her father and if that were so, her wishes would be honoured. What the minor girl said, has shocked my conscience. It was stated by Oshiya that she actually wants to go with her mother, and does not like to live with her father because she does not like the activities that go on at the house of her father. She has stated that she is scared, and if her father comes to know that she has expressed her desire to live with her mother, she would face dire consequences. Oshiya has clearly stated that she should be sent with her mother from the Chamber itself. On the learned advocates for the respective parties being called for the second time in chambers, this time Oshiya stated, in their presence, that she wants to go with the mother. Certain aspects relating to the activities going on in the house of the respondent have been disclosed by the minor child, which may not be disclosed in the order, at this juncture. Suffice it to say, that after having spoken to Oshiya, I am satisfied that her best interests and welfare would lie with the petitioner, and not with the respondent. 7. No doubt, the father is legally the natural guardian of a minor after the age of 6 years and after him, the mother is the guardian. Generalizations cannot be made regarding which of the parents be preferred for the purpose of retaining the custody. While deciding the question of custody of a minor child, the paramount consideration to be kept in mind is the welfare and best interest of the minor. It is not only the economic, academic and physical welfare that is to be seen but also the emotional and psychological welfare and wellbeing of the minor child. While deciding the question of custody of a minor child, the paramount consideration to be kept in mind is the welfare and best interest of the minor. It is not only the economic, academic and physical welfare that is to be seen but also the emotional and psychological welfare and wellbeing of the minor child. After all the minor, whether a boy or girl, is an innocent, budding human being, caught unawares in the crossfire of the bitter marital relationship between his/ her parents. The intrinsic need of every minor child is a foundation of love, affection, security and trust, on the basis of which his or her personality, talent, intelligence and holistic development will take place. A good education helps in the flowering of the minor child’s latent potential, but it is physical and emotional security and love and affection, that are most essential. An affluent background or palatial mansion, without the above qualities would hardly be conducive to the minor's welfare. A different dimension comes into focus when the minor is a girl child. Given her inherent sensitivity, a minor girl is, normally, emotionally attached and attuned to her mother. A minor girl, especially, requires a physically, financially and emotionally stable and secure environment. Soon, she may be nearing the threshold of adolescence when the special guidance and care of a mother is necessary, for her overall wellbeing. 8. The welfare of the minor has been incorporated in several provisions of law, and is now one of the prime factors to be considered by the Courts of law. At this juncture, it would be fruitful to advert to the relevant provisions of law. Sections 7, 17 and 25 of the Guardians and Wards Act, 1890, read thus : “7. Power of the Court to make order as to guardianship :- (1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made - (a) appointing a guardian of his person or property or both, or (b) declaring a person to be such a guardian the Court may make an order accordingly. (2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court. (2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court. (3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act. *** *** *** 17. Matters to be considered by the Court in appointing guardian :- (1) In appointing or declaring the guardian or a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If minor is old enough to form an intelligent preference, the Court may consider that preference. [*** *** ***] (5) The Court shall not appoint or declare any person to be a guardian against his will. (emphasis supplied) *** *** *** 25. Title of guardian to custody of ward :- (1) If a ward leaves or is removed from the custody of a guardian or his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. (2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1881 (10 of 1882) (3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.” Sections 6 and 13 of the Hindu Minority and Guardianship Act, 1956, are also relevant, and the same are reproduced hereinbelow : “6. Natural guardians of a Hindu minor :- The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are -- (a) in the case of a boy or an unmarried girl :- the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; ........” *** *** *** 13. Welfare of minor to be paramount consideration :- (1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.” (emphasis supplied) 9. From the above-quoted provisions of law, it is clear that the first and primary consideration to be examined by the Court in a case for custody, is the welfare of the minor. There are a catena of judicial pronouncements in this regard. The Family Court has treated the application of the petitioner as being filed under Section 25 of the Act 1890, whereas the application has not been filed under any relevant provision of law. Looking to the Scheme of the Act, it is seen that the intention of the Legislature is that the welfare of the minor should be paramount. The application has been filed for grant of custody, for reasons mentioned therein which have a direct bearing on the welfare of the minor girl. Looking to the Scheme of the Act, it is seen that the intention of the Legislature is that the welfare of the minor should be paramount. The application has been filed for grant of custody, for reasons mentioned therein which have a direct bearing on the welfare of the minor girl. As such, the provisions of Section 25 of the Act, 1890, would not come in the way of the Court to take a decision regarding the welfare of the minor. The submissions of the learned counsel for the respondent are, therefore, not acceptable. No other legal submission has been raised by the learned counsel for the respondent. 10. In Gaurav Nagpal v. Sumedha Nagpal (supra) the Supreme Court has held that : “40. ...... Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.” In Nil Ratan Kundu and Another v. Abhijit Kundu, (2008)9 SCC 413 , the Supreme Court has succinctly encapsulated the principles of law relating to custody of minor child as below : “52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and wellbeing of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. In selecting proper guardian of a minor, the paramount consideration should be the welfare and wellbeing of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor. 53. Having given anxious and thoughtful consideration to the facts of the case and applying the well-settled principles referred to above, we are constrained to observe that the orders passed by the courts below are short of the fundamental principles on more than one ground.” (Emphasis supplied) In the same judgment, while granting custody of minor child to the grand-parents instead of the father, against whom, a criminal case for an offence punishable under Section 498-A of the Indian Penal Code was pending, the Supreme Court held that : “63. In our considered opinion, on the facts and in the circumstances of the case, both the courts were duty-bound to consider the allegations against the respondent herein and pendency of the criminal case for an offence punishable under Section 498-A IPC. One of the matters which is required to be considered by a court of law is the ‘character’ of the proposed guardian. In Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi (1992)3 SCC 573 : 1992 SCC (Cri) 778, this Court, almost in similar circumstances, where the father was facing the charge under Section 498-A IPC, did not grant custody of two minor children to the father and allowed them to remain with the maternal uncle.” 11. It is significant that though Oshiya has been living with her father and has been brought to the Court in his custody, she has unequivocally expressed her desire to live with her mother. It cannot be lost sight of that the minor girl is six years old. It is significant that though Oshiya has been living with her father and has been brought to the Court in his custody, she has unequivocally expressed her desire to live with her mother. It cannot be lost sight of that the minor girl is six years old. I have found her intelligent enough to know her own mind and she has categorically made her preference to live with the petitioner known to the Court. The child will soon be approaching the age of puberty and it is imperative that there is a safe and secure atmosphere in the place where she lives so that she can imbibe good values, rather than be exposed to undesirable influences. The welfare of the minor is a consistent thread, so closely interwoven into the basic fabric of the above-mentioned statutes, that to ignore it would amount to rendering the object and purpose behind the enactment of the law ineffective and nugatory. 12. Perusing the impugned order in light of the above provisions of law, it is clear that while passing the impugned order, the Family Court has completely lost sight of this relevant aspect. The reason that has weighed with the Family Court in rejecting the application is, that knowing the respondent was involved in criminal cases at the time of execution of the Deed of Divorce, it is not open to the petitioner to claim custody of the child, thereafter. The second reason is that in the Deed of Divorce, the custody of the child has been agreed to be handed over to the respondent, and the petitioner is not entitled to claim it now. For the above reasons, the Court below has arrived at a conclusion that the petitioner does not have a prima-facie case and the balance of convenience is not in her favour, and the application for custody of the minor was rejected. 13. In the considered view of this Court, the above reasons for rejecting the application are not sustainable in law. Any consent for custody being handed over to the respondent at the time of execution of the Deed of Divorce is, at best, illustrative of the mutual agreement of parties at the relevant point of time. The Deed of Divorce is a registered agreement, and not a Decree of divorce passed by a Competent Court. Any consent for custody being handed over to the respondent at the time of execution of the Deed of Divorce is, at best, illustrative of the mutual agreement of parties at the relevant point of time. The Deed of Divorce is a registered agreement, and not a Decree of divorce passed by a Competent Court. The best interests and welfare of the minor girl cannot be ignored or be bound down by the said Deed. No clause contained therein can be construed in a manner that will override the best interests of the child. The petitioner has produced material on record and made averments regarding the criminal background of the respondent, and the unsavoury activities going on in his house. The minor has stated certain things which have been recorded in a Compact Disc, the transcript of which has been handed over to the Family Court. No doubt, this material will have to be gone into by the Family Court, at the time of final disposal of the case, and it may not be proper to discuss it here. However, there is no denial to the fact that the respondent is involved in several criminal cases. The learned counsel for the respondent has submitted that he has been acquitted in about 13 cases out of 29 cases. The fact remains that there are several cases still pending against him. The Court cannot shut its eyes to the material on record. The impugned order discloses that the approach of the Family Court in deciding the application is a mechanical one. The Court below has completely lost sight of the most vital aspect regarding the welfare and best interest of the minor. Instead, it has focused its attention on the agreement of the petitioner to hand over custody to the respondent, knowing his criminal background. Besides this, the Court below has not interviewed the child or ascertained her wishes. In my considered view, such an approach is erroneous. The Deed of Divorce is a registered Agreement and not a decree of divorce. Under what circumstances it was entered into, is not for this Court to state. At present, it is the question of custody of the minor girl, in the prevailing circumstances, that is to be decided. In my considered view, such an approach is erroneous. The Deed of Divorce is a registered Agreement and not a decree of divorce. Under what circumstances it was entered into, is not for this Court to state. At present, it is the question of custody of the minor girl, in the prevailing circumstances, that is to be decided. The wishes of the minor child are worthy of consideration as held in Nil Ratan Kundu and Another v. Abhijit Kundu (supra) and Lekha v. P. Anil Kumar -(2006) 13 SCC 555. The Family Court has not interviewed the child or ascertained her desire before passing the impugned order, which it should have done. 14. I am conscious that the substantive application of the petitioner is pending, and will be decided on merits, on the basis of material on record. Having bestowed my thoughtful consideration upon the rival submissions of parties, and for the reasons stated hereinabove, in my view, the best interest and welfare of the minor girl would be served if she is permitted to reside with her mother. At the same time, there can be no doubt regarding the visitation rights of the respondent, which will also be taken care of by this judgment. 15. While passing the impugned order, the Family Court has committed manifest error and has not exercised jurisdiction, in accordance with law. The said order deserves to be quashed and set aside. Accordingly, the petition is partly-allowed. The order dated 27.07.2009 passed by the learned Principal Judge, Family Court No.1, Ahmedabad, below application Exhibit 5, in Civil Miscellaneous Application No.35 of 2009, is quashed and set aside. Till such time as Civil Miscellaneous Application No.35 of 2009 is finally decided, the custody of the minor girl Oshiya is handed over to the petitioner. It is directed that : (i) The petitioner and/or her father shall file an Undertaking before the Family Court to the effect that Oshiya shall be admitted in a good school and that the petitioner and/or her father is financially competent to look after the education and upbringing of the minor girl. The details of the school in which she has been/will be admitted shall also be mentioned. The details of the school in which she has been/will be admitted shall also be mentioned. (ii) The respondent shall be at liberty to meet Oshiya in the presence of the petitioner once every fortnight, on the 2nd and 4th Sunday of the English calendar month during day time between 12:00 noon to 5:00 p.m. The venue of the meeting shall be decided by the petitioner, and the respondent shall be informed regarding the same in advance. 16. It is hoped that the Family Court will keep in mind the settled principles of law, regarding the welfare of the minor child, while deciding the substantive application. 17. Rule is made absolute to the above extent. There shall be no orders as to costs. (SBS) Petition partly allowed.