ORDER : 1. Rule. Learned advocate Mr. Bhargav Hasurkar waives service of rule for respondent. 2. Heard learned advocate Mr. Haresh Trivedi for the petitioner and learned advocate Mr. Bhargav Hasurkar for the respondent. 3. The petitioner herein is original plaintiff-wife, whereas respondent is her husband and defendant in H.M.P. No. 1043 of 2010 pending before the Family Court, Vadodara. Such suit is preferred by the petitioner-plaintiff being wife for restitution of conjugal rights u/s. 9 of the Hindu Marriage Act. In such suit, wife has also prayed for several interim reliefs under the provisions of Protection of Women from Domestic Violence Act, 2005 for getting security and residential accommodation, whereas maintenance u/s. 24 of the Hindu Marriage Act, so also the custody of minor daughter Rutu, aged about 6 years at the relevant time. 4. By impugned order dated 16.10.2012 below such application at Exh.5 for interim reliefs, the Principal Judge of Family Court, Vadodara has while allowing the application partly, directed the respondent to pay Rs. 5000/- towards monthly maintenance to the wife from 16.5.2009 with further direction to pay Rs. 5000/- towards cost of such application. Whereas, so far as custody of minor daughter-Rutu of the parties is concerned, the Family Court has by impugned order, granted temporary custody for four days i.e. from 22.10.2012 to 23.10.2012 and again on 16.11.2012 to 17.11.2012 to the petitioner-wife with specific direction that on the next day of such temporary custody i.e. initially on 24.10.2012 and on second occasion on 18.11.2012, the petitioner has to pass on the custody of the minor to the respondent being her father, since on the date of the suit, minor was with the father-respondent. 5. If we peruse the application at Exh.5 and the impugned order, it becomes clear that the Family Court has without application of mind, failed to realise the basic principle of law that when there is a question of custody of a minor girl, unless there is a specific evidence that mother is not able to look after the welfare of the minor girl, custody of minor girl is required to be handed over to the mother considering the fact that the minor certainly requires the help and support of her mother or atleast a lady, who can take care of all type of requirements and difficulty of the minor girl, both physical and other requirements. If we peruse the impugned judgment, it becomes clear that the Family Court has failed to even assign good and proper reasons for not relying upon the cited cases before her and assigned one simple reason for handing over the custody to the father that minor is aged about 7 years (at the time of impugned order) and going to school, and therefore, considering her interest and education, the custody cannot be handed over to the mother. It is clear and obvious that this is not a cogent ground to deny the custody of a minor girl aged about 7 years, but, now, who is aged about 10 years to her mother, since she is in a better position to support and ensure the welfare of the minor girl. For the purpose, the Family Court has failed to rely upon the decision of this High Court between Eshita d/o. Hasmukhbhai Sitapara vs. Hiren Prabhudasbhai Brahmbhatt, 2010 (2) GLR 1224 . It is pertinent to note that such principle has been approved by the Hon’ble the Supreme Court of India in the cases of Gaytri Bajaj vs. Jiten Bhalla, (2012) 12 SCC 471 : AIR 2012 SC 541 , Rosy Jacob vs. Jacob A. Chakramakkal, AIR 1973 SC 2090 and Mohan Kumar Rayana vs. Komal Mohan Rayana, AIR 2010 SC 1659 . All such judgments confirm that for considering the custody of a minor, the paramount consideration would be welfare of the children and that more particularly, when there is a question of custody of a minor girl, irrespective of the fact that father is a natural guardian, the custody of minor girl is certainly required to be handed over to the mother, who can certainly be in a better position to maintain the daughter for her different types of requirements. It is unfortunate that the Family Court has considered the only issue regarding willingness of the daughter being recorded in this case for deciding the custody and relied upon the statement of the minor before the Family Court that she wants to stay with her father. It is unfortunate that the Family Court has considered the only issue regarding willingness of the daughter being recorded in this case for deciding the custody and relied upon the statement of the minor before the Family Court that she wants to stay with her father. However, surprisingly, when this Court has called upon the minor to ascertain her requirement and desire of accompany between the father and mother, the minor girl-Rutu, who is now aged about 10 years and thereby in a better position to explain her willingness than before, has categorically disclosed before this Court in clear terms that her father has got remarried and living with another lady and that in fact, she does not want that her parents to get separated, but, she wishes that they should live together since she wants to stay with them. Wheres, so far as stay amongst the parents is concerned, she has in categorical terms disclosed before this Court that since she has stayed with her father for couple of years, now, she would like to stay with her mother. The most disturbing and alarming disclosure by the minor is to the effect that if her father comes to know that she has disclosed the fact of his second marriage or her desire to stay with her mother, then, her father and new mother would beat her and had threatened her emotionally that they may commit suicide and, thereafter, she may not be able to have the benefit of getting love from her father. This is nothing, but emotional blackmailing by respondent-father. It cannot be ignored that minor girl is in custody of the respondent husband since the year 2010 and temporary custody of petitioner-wife was only for four days in the year 2012. Thereby, minor was brought to the Court by the father. For the purpose, there is a need to safeguard the custody of the minor so also to keep watch upon the father so as to avoid any unwarranted situation. For the purpose, though this is a matrimonial dispute, copy of this order is to be sent to the nearest police station to keep a watch upon the family till this order is being executed. 6. For the purpose, though this is a matrimonial dispute, copy of this order is to be sent to the nearest police station to keep a watch upon the family till this order is being executed. 6. It is settled legal position that when minor is a girl, below 16 years of age, then, it would be appropriate to hand over the custody of such minor to her mother except for the reason that mother is not capable to ensure the welfare of the minor. It is an admitted position on record that there is no evidence available on record to prove that mother is otherwise unable to support the minor or to ensure her welfare. With regard to the education of the minor girl, the reasonings by the Family Court is not proper inasmuch as the father is residing in a small village, namely, Jetpur-Pavi from where minor has to travel for 30 kms. on one side to attend the school. Thereby, total 60 kms. in a day in public transport bus, and therefore, petitioner is right in submitting that welfare of the child even on the count of her studies are well within the control of the mother, who is residing in Vadodara city with her parents and they are ready and willing to take care of the minor even in Vadodara, where she does not need to travel for 60 kms. in a day to attend the school. It is also apprehended by the petitioner-wife that life of minor-girl is in danger during such travelling to 60 kms. per day, as the road is crossing the river, which is dangerous and many children had died when one such bus had fallen into the river from the bridge. Therefore, there is substance in the petition so far as custody of the minor is concerned, which certainly needs to be passed on from father to the mother. 7. So far as amount of maintenance is concerned, petitioner is right in submitting that pursuant to the decision in 1994 (1) GLH 78 , husband is required to disclose his source of income and actual income so as to enable the Court to pass appropriate orders of maintenance of wife and minor. 7. So far as amount of maintenance is concerned, petitioner is right in submitting that pursuant to the decision in 1994 (1) GLH 78 , husband is required to disclose his source of income and actual income so as to enable the Court to pass appropriate orders of maintenance of wife and minor. However, when wife has claimed that husband is earning Rs.25000/- and when husband has failed to rebut such evidence, it is submitted that amount of maintenance, which would be generally the 1/3rd of the spouse income, the impugned order of awarding maintenance of Rs. 5000/- alone needs to be modified by enhancing the amount of compensation as Rs. 6500/- p.m. 8. In answer to all such submissions, the learned advocate for the husband Mr. Hasurkar has objected to consider the evidence regarding second marriage as proper evidence since it is not proved on record and not produced before the trial Court and since it is only in the form of writing by some religious head, simply conveying that respondent herein and one lady had been to him, with a commitment that they would reside together forever, but it cannot be termed as a marriage in the eye of law and even such disclosure is not admitted unless it is properly proved on record, which requires an opportunity to the husband to cross-examine the person, who has issued such writing. However, at present, irrespective of such issue regarding second marriage, considering the overall facts and circumstances, when welfare of the child being a minor girl, is well within the control of the mother, and when even after specific arguments by the wife that husband has not disclosed his correct income, and when husband is not coming forward with proof of his income, there is substance in the petition so as to modify the impugned order. However, it cannot be ignored that there is specific disclosure by the minor that father is residing in a house with some lady as husband and wife or in other terms, father has got remarried. So far as custody of minor is concerned, the learned advocate for the respondent-husband has fairly disclosed that since Court has taken sense of the minor, and since welfare of the minor is to be looked into, they will rely upon the decision of the Court and would abide by the same. 9. So far as custody of minor is concerned, the learned advocate for the respondent-husband has fairly disclosed that since Court has taken sense of the minor, and since welfare of the minor is to be looked into, they will rely upon the decision of the Court and would abide by the same. 9. In view of above facts and circumstances, the petition is allowed. Thereby, the impugned order is modified in following manner. The application at Exh.5 by the petitioner before the Family Court is allowed with following directions: (1) The respondent-husband shall handover/pass on the possession and custody of minor baby girl Rutu to the petitioner at the earliest and preferably within a week after managing to pass on her personal belongings and with the school leaving certificate, so as to enable the petitioner-mother to get her admission in appropriate school in Vadodara. (2) The respondent is directed not to harass or pressurise the minor baby girl Rutu emotionally in view of this order. To avoid such a situation, copy of this order be forwarded to the nearest police station to keep a watch upon the respondent till he pass on the custody of minor girl to her mother. For this purpose, Registry is directed to forward Yadi of this order to the Jetpur-Pavi police station of Vadodara District even by fax through local Court. (3) The amount of maintenance for the wife is now increased from Rs. 5000/- to Rs. 6500/- only from the date of this order, considering the fact that now the husband has to pay maintenance for minor daughter also. (4) Respondent-husband has to pay Rs. 4000/- towards maintenance of minor baby girl Rutu. (5) Husband has also to pay Rs. 5000/- towards cost of this litigation. 10. In view of such facts and circumstances, the Special Civil Application is partly allowed. 11. Rule is made absolute to the aforesaid extent. Application partly allowed.