JUDGMENT : S. KUMAR, J. The Misc. Appeal has been filed for setting aside the order dated 18.06.2014 passed by the learned Principal Judge, Family Court, Patna, in Guardianship Case No. 11 of 2013 by which the Custody and Guardianship Case filed by the petitioner-appellant of his son and daughter has been dismissed. 2. Briefly stated the fact of the case is that the petitioner-appellant had filed a case of Custody and Guardianship under Sections 9 and 25 of the Guardians and Wards Act 1890 and Section 357 of the Mulla's Principles of Mohammedan Law for custody of his minor son Armaan, who is seven years of age and also minor daughter Aliza on the ground of welfare and wellbeing of both the children is not safe at the hands of their mother. 3. Appellant-father is working as an Administrative Officer in the Ministry of External Affairs and marriage between appellant and respondent was solemnized on 22.12.2003. From the wedlock, a son was born on 21.05.2006 and a daughter was born on 07.02.2008. The case of the appellant is that respondent-wife demanded a Flat at Patna from her husband after one month of their marriage. Differences grew to such a level that both of them were residing separately for the last four years and several litigations are going on between them. Respondent-wife has filed a case under Section 498A of the Indian Penal Code and also under the Dowry and Prohibition Act registered as Alamganj P. S. Case No. 262 of 2010 and another case registered as G.R.P. Case No. 249 of 2013 against the appellant. Respondent-wife has also filed a Maintenance Case bearing No. 12/M/2011 which is pending in the court of Additional Family Court, Patna. Father of the appellant has filed a case of demand and extortion against the respondent registered as Dhaka P. S. Case No. 79 of 2013. Son and daughter of the appellant are living with their mother at their maternal grand-father's place at Patna and it is alleged that respondent and her family members are denying appellant to meet his children. The children of the appellant are also not getting proper love, care, attention, educational and medical facilities from her mother due to lack of money and poor financial status of her retired father. The children of the appellant are also not getting proper love, care, attention, educational and medical facilities from her mother due to lack of money and poor financial status of her retired father. Since the son has attained the age of seven years, appellant being a natural guardian, has filed the present case for custody of his son and daughter under the Principles of Mohammedan Personal Law and same was dismissed by the impugned order dated 18.06.2014. 4. The case of the respondent-wife, as pleaded, is that the appeal is not maintainable in law or in fact and has been filed with malafide intention. After marriage between the appellant and respondent, respondent went to her in-laws house at Motihari and after three to four days the appellant and his family members started torturing respondent for a Flat at Patna. Respondent has further alleged that appellant did not take her to his place of posting at New Delhi due to non-fulfillment of the said demand and her in-laws were also not ready to send her with her husband. However, on much persuasion of the father of respondent, she was taken to Delhi where she became pregnant and was sent back to her father's place for delivery of the child. Respondent gave birth to a male child at Patna on 21.05.2006 neither appellant nor his father had come to see the newly born child. Respondent further contended that her husband was transferred from New Delhi to Iran and she was taken along with her son to Iran on much persuasion where she stayed for about nine months but was being all along neglected by appellant for non-fulfillment of the demand of a Flat at Patna. Respondent became pregnant again and gave birth to the female child on 07.02.2008 at her parental home at Patna and the entire expenses of the delivery was borne by her father and nobody from her in-law's house came to see the newly born female child. 5. When respondent, after one and half years of the birth of female child was taken to her Sasural on 31.07.2009 and then to Delhi, the demand of Flat at Patna continued during these periods. Son of the respondent was kept at Motihari and was not allowed to go with respondent to Delhi. 5. When respondent, after one and half years of the birth of female child was taken to her Sasural on 31.07.2009 and then to Delhi, the demand of Flat at Patna continued during these periods. Son of the respondent was kept at Motihari and was not allowed to go with respondent to Delhi. Father-in-law of the respondent gave a written assurance that son will be sent to Delhi after festival of Bakrid of 2009. It has further been alleged by respondent that she was being pressurized to write a suicidal note which she did not write and was also physically assaulted and her entire ornaments were snatched. When both came from Delhi, she was left at her parental home at Patna in order to keep her away from her son and under these circumstances the respondent lodged FIR on 01.01.2010 which was registered as Alamganj P. S. Case No. 262 of 2010 in which the police recovered her son from her in-laws place, i.e., village Saratha, District-Motihari and was accordingly produced in the Patna City court from where respondent got her son back under the orders of the court. Respondent has further alleged that appellant deserted respondent and his children and for which she had filed Maintenance Case No. 12/M/2011 and despite the order for payment of interim maintenance amount the same is also not being complied with by the appellant. Respondent has further stated that in pursuance of the order dated 13.08.2013 passed by learned SDJM, Patna City, when she accompanied her husband-appellant to Delhi, she was assaulted in the mid-way due to which she sustained grievous injury. She was provided first aid at Moghul Sarai Station and she was forced to return back to Patna. Since then she is living with her two children in her parental house at Patna. 6. Respondent has further pleaded that she has completed M.A. LL.B. from Patna University and is also having knowledge of computer and has joined in a 10+2 School at Patna and is in a position to maintain her children. As such, appellant-husband is not entitled to get custody of her children. Altogether six witnesses were examined, three from each side. Documentary evidences have also been exhibited by both the parties. 7. As such, appellant-husband is not entitled to get custody of her children. Altogether six witnesses were examined, three from each side. Documentary evidences have also been exhibited by both the parties. 7. Mr S. S. Dwivedi learned senior counsel has vehemently argued that under Section 357 r/w Section 355 of the Mulla Principles of Mohammedan Law when a child attains more than seven years, father is entitled to take custody. If father is not available then male paternal relations are entitled to take custody of the child as enumerated categorically under Section 357 of the Mulla Principles of Mohammadan Law. He has further argued that Section 17 of the Guardians and Wards Act is akin to Section 351 of the Mulla's Mohammedan Law, which lays down that while considering the appointment of guardian for a minor, the court shall, subject to the provisions of this Section, be guided consistently by the law to which the minor is subject, appears in the circumstances for the welfare of the minor. Besides that the court is duty bound to consider the age, sex and religion of the minor, the character and capacity of the proposed guardian and the nearness of the kin to the minor. Thus, the law enjoins that the custody of a male child should be given to the father and the paternal relations. It has further been submitted by learned senior counsel that disqualification provided in Section 354(2) of the Mulla's Mohammadan Law is that female including the mother which is otherwise entitled to custody of the child looses the right to custody if she goes to reside during the subsistence of the marriage at a distance. It is admitted that respondent has been living away from the appellant for the last seven years. Therefore, besides being ineligible for having custody of the child according to the Mulla's Mohammadan Law r/w Guardians and Wards Act, 1890, she is disqualified from being appointed as guardian. It has further been submitted that father of the appellant Md. Rahamtullah has substantially landed property and has three sons and all are officers including the appellant, who is an Assistant Passport Officer, a Class-I Gazetted Officer, in Government of India and his child Armaan is the only male child of the family. It has further been submitted that father of the appellant Md. Rahamtullah has substantially landed property and has three sons and all are officers including the appellant, who is an Assistant Passport Officer, a Class-I Gazetted Officer, in Government of India and his child Armaan is the only male child of the family. It has further been submitted that law enjoins the welfare of the child and the duty of the court is to determine as to under whose guardianship the future of the minor children are secured. 8. Father is natural guardian and custodian of the child. Under the Guardians and Wards Act 1890 and 357 of Mulla’s Law, after seven years of age father is the natural guardian of the minor male child and unless he is declared unfit to be guardian, he has to be given custody of the minor children. Appellant has also contended that he is financially better than respondent and hence custody of the child be given to him. The appellant-father is more apt and suitable to protect the interest of the minor child and also in imparting education to the required standard of the child. Appellant-father being an officer under Central Government also has other facilities to look after the children, their education and welfare. 9. On the other hand, Mr. Chakrapani, Advocate, has defended the order passed by Family Court and has urged that the Family Court has dealt in detail of respective cases of parties and after in depth consideration has come to the conclusion that custody of minor children cannot be given to appellant-father from mother. 10. The counsels for the appellant have relied upon following judgments in support of their submission:- 1. AIR 1964 SC 358 (State of Uttar Pradesh Vs. Singhara Singh and others. 2. AIR 1983 A.P. 106 (Mohammed Jameel Ahmed Ansari Vs. Ishrath Sajeeda and others). Learned counsels for the respondent have relied upon the following judgments in support of their submission:- 1. (1973) 1 SCC 840 (Rosy Jacob Vs. Jacob A. Chakramakkal) 2. (2008) 7 SCC 663 (Rabindra Singh Vs. Financial Commissioner, Cooperation, Punjab and others.) 3. (2008) 9 SCC 413 (Nil Ratan Kundu & another Vs. Abhijit Kundu). 11. We have heard the counsels of both the sides at length and perused the lower court records as well as the order passed by Family Court, Patna. 12. Jacob A. Chakramakkal) 2. (2008) 7 SCC 663 (Rabindra Singh Vs. Financial Commissioner, Cooperation, Punjab and others.) 3. (2008) 9 SCC 413 (Nil Ratan Kundu & another Vs. Abhijit Kundu). 11. We have heard the counsels of both the sides at length and perused the lower court records as well as the order passed by Family Court, Patna. 12. Father is the natural guardian would not ipso facto entitle him to have custody. The welfare of minor is the paramount consideration and merely based upon the rights of parties custody of minors cannot be decided. 13. We interviewed both the boy and the girl in our chambers. The boy and the girl understood the questions put to them and gave apt replies. At the time of interview the boy and the girl unequivocally said that they would continue to live with their mother since mother is looking after them with all her love and affection and they do not want go with their father. The children have expressed their willingness and desire to live only with their mother. 14. The dominant matter of consideration of the Court is the welfare of the child. The welfare of child cannot be measured by money only. Minor has for many years lived with mother and has been well cared for and during that time minor's father had shown a lack of interest in the minor. Such circumstance cannot be ignored while considering the issue of custody. 15. The children are living with their mother for the last several years and separation at this stage will affect the mental condition and the education of the child. It has been alleged that having left the children in the year 2010 the appellant had no emotional bond with the children. After leaving the children he had not even talked to the minor children over telephone or enquired about their welfare. 16. However, we do not want the children to grow up without knowing love and affection of his natural father who also has a right to help in children upbringing. The children should also get sufficient exposure to his natural father. The respondent should not prevent the appellant-father from coming to see the children and respondent should make necessary arrangement for the appellant to meet his children. The respondent shall not prevent the children from receiving any gift from their father. The children should also get sufficient exposure to his natural father. The respondent should not prevent the appellant-father from coming to see the children and respondent should make necessary arrangement for the appellant to meet his children. The respondent shall not prevent the children from receiving any gift from their father. Father should be allowed to make an initial contact with the children and gradually build up a relationship which at present is totally lacking. 17. We are conscious of the fact that at the initial stage the respondent-mother was not working and had no independent source of income to maintain herself and the children. However, subsequently, she is working as a teacher and has also taken admission in B.Ed. course. Now she is getting good salary and is in a good position. We are also conscious of the fact that the expenses of schooling of the children is met up on the maintenance given by the appellant-father to the respondent -mother. However, it is also an admitted fact that the appellant -father never visited the place where the children are residing or made any contact with his children before filing custody claim. The children at present are not emotionally attached with their father and as such, they are not ready to go with him. Both the children are residing with their respondent-mother and her family and studying in one of the reputed schools in Patna. The respondent-mother has taken proper care and attention of her son and daughter which is one of the most important factors to be considered for the welfare of the children. Both the son and daughter live with respondent-mother which has resulted into a strong emotional bonding between them and any change of place will hamper their studies and career. 18. The Apex Court in 2012(12) SCC 471 (Gaytri Bajaj Vs. Jiten Bhalla) in paragraph 14 has held as follows:- “14. From the above it follows that an order of custody of minor children either under the provisions of the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956 is required to be made by the court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of either parent that would require adjudication while deciding their entitlement to custody. It is not the better right of either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the parent concerned to take care of the child are some of the relevant factors that have to be taken into account by the court while deciding the issue of custody of a minor. What must be emphasised is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the court.” 19. We are of the view that in the present case there is no ground to upset the judgment and order of the Family Court. There is nothing on record to suggest that the welfare of the child is in any way in perils in the hands of mother. The stability and security of the child is also an essential ingredients for a full development of child’s talent and personality. Respondent is a teacher in a Government school. Children have been living and studying in Patna in a good school, as such any change may cause emotional strain to children. 20. Under these circumstances and bearing in mind the paramount consideration of the welfare of the child, we are convinced that the children’s interest and welfare will be best served if they continue to be in custody of mother. In our opinion, it is not desirable to disturb the custody of children and therefore the order of the Family Court with visitation rights given to father deserves to be maintained. 21. In the result, the appeal fails and is dismissed accordingly.