JUDGMENT : Alok Aradhe, J. – 1. This appeal emanates from judgment dtd. 28/2/2019 passed by the Family Court by which the petition filed by the appellant / wife under Sec. 7 of the Guardian and Wards Act, 1890 (hereinafter referred to as 'the Act' for short), has been dismissed, whereas the petition filed by the respondent / husband seeking appointment of guardian with respect of the children of the parties, has been allowed. 2. Facts giving rise to filing of this appeal briefly stated are that the marriage between the appellant and the respondent was solemnized on 15/7/2005 in Bengaluru. Out of the wedlock, a son namely Lakshya (hereinafter referred to as 'the son' for short) was born on 11/9/2006 and a daughter namely Pariniti (hereinafter referred to as 'the daughter' for short) was born on 1/3/2013. The appellant as well as respondent resided together till May 2016. The respondent, on 23/5/2016 noticed that the appellant is using another mobile phone for secret communications and secured the custody of the aforesaid phone of the appellant. The appellant thereafter, on 25/5/2016 left the matrimonial home and went to New Delhi. The conversation recorded between the appellant and the respondent reflects that the appellant has admitted the fact of having adulterous relationship with her brother-in-law (sister's husband) namely Rakesh Gupta. 3. The appellant returned to Bengaluru some time in the first week of June 2016 and filed a petition on 7/6/2016 seeking her appointment as guardian in respect of two children. The respondent thereafter filed a petition on 16/6/2016 under Sec. 13 of the Hindu Marriage Act, 1955 seeking dissolution of marriage on the grounds of cruelty and adultery. Thereafter, on 17/6/2016, the respondent filed a petition under Sec. 7 of the Act. 4. By an order dtd. 16/10/2017, the Family Court permitted the children to spend Diwali vacation with the respondent. However, the appellant was granted the custody of the children on 19/10/2017 between 10 a.m. to 7 p.m., on 20/10/2017 between 9 a.m. to 1 p.m. and 21/10/2017 between 10 a.m. to 7 p.m. On 21/10/2017, the son was taken by the appellant to the police station in HSR Layout, Bengaluru, where he lodged a complaint against the respondent, his grand mother and his uncle alleging assault. Thereafter, the Family Court, by an order dtd. 22/10/2017, allowed the son to be with the appellant. 5. Thereafter, the Family Court, by an order dtd. 22/10/2017, allowed the son to be with the appellant. 5. However, by an order dtd. 2/11/2017, the Family Court directed to return the custody of the daughter to the appellant. The said order was challenged in W.P.No.51253/2017 before this Court which was dismissed on 16/4/2018. The respondent returned the custody of the daughter to the appellant on 2/5/2018. The Family Court by an order dtd. 10/9/2018, granted an interim order with regard to custody of the children. The appellant filed an application for modification of the said order which was rejected by an order dtd. 14/9/2018. The respondent thereafter filed interlocutory applications seeking action against the appellant for having violated the orders passed by the Family Court. The said applications were allowed in part on 29/9/2018. The order passed by the Family Court dtd. 29/9/2018 was subject matter of challenge in W.P.No.50186-87/2018. 6. During the pendency of the aforesaid writ petition before this Court, the parties filed a joint memo and agreed for interim custody of the children to the respondent, from 10 a.m. on Saturday till 2 p.m. on Sunday. In pursuance of the aforesaid order between the period from December 2018 to 23/2/2019, the children spent time during the weekend with respondent and his family and even travelled to Ooty. 7. The Family Court, by a common judgment dtd. 28/2/2019, decided the petitions filed by the appellant as well as the respondent seeking custody of the children. The Family Court, inter alia, held that respondent is staying alone in an apartment and has no independent source of income to maintain children. It was further held that conduct of the appellant is not conducive to promote the welfare of the children and the respondent is a graduate and has financial resources. It was also noted that the respondent stays with his mother, his elder brother and family who are having 2 children of similar age as that of son and daughter. Accordingly, the petition filed by the respondent seeking appointment as a guardian of the children was allowed whereas the petition filed by the appellant under Sec. 7 of the Act was dismissed. However, the appellant has filed this appeal only against judgment dtd. Accordingly, the petition filed by the respondent seeking appointment as a guardian of the children was allowed whereas the petition filed by the appellant under Sec. 7 of the Act was dismissed. However, the appellant has filed this appeal only against judgment dtd. 28/2/2019 passed in G and WC No.155/2016 by which her petition seeking appointment as guardian of children has been dismissed, and has not filed any appeal against the judgment and decree dtd. 28/2/2019 passed in G and WC No.177/2016 by which the respondent has been appointed as guardian of children. 8. In this appeal, a Bench of this Court had passed an order dtd. 23/4/2021 by which the respondent was directed to pay the school fee of the children on or before 10/5/2021. The said order was challenged in a special leave petition namely SLP(C) No.7139/2021 which was disposed of by the Supreme Court by an order dtd. 25/5/2021 with an observation that in case a request for early hearing is made, this Court would give due consideration to the same. 9. Thereafter, a bench of this court by an order dtd. 18/8/2021 directed the respondent to deposit an initial sum of Rs.10.00 Lakhs so that directions for release of the said amount on monthly basis could be issued from living expenses of herself and the children including rental expenses and other incidental expenses. The respondent was further directed to pay medical expenses incurred towards treatment of son. The respondent was also directed to deposit the amount on or before 26/8/2021 and was further directed to file an undertaking to incur the expenses of the children apart from educational expenses. The court took note of the medical records produced in respect of the son and directed the same to be kept in custody of Registrar (Judicial). 10. Thereafter, on 26/8/2021, after interacting with the parties, a bench of this court found that the respondent is not certain and firm about his intention to incur expenses towards his wife and children. Therefore, taking into account the fact that the parents of the appellant are in Delhi, this Court permitted the appellant to take the children from Bengaluru to Delhi to her maternal house and reside with her parents for a period of one year so that the son is able to complete his Xth Standard. Therefore, taking into account the fact that the parents of the appellant are in Delhi, this Court permitted the appellant to take the children from Bengaluru to Delhi to her maternal house and reside with her parents for a period of one year so that the son is able to complete his Xth Standard. The appellant was directed to file a monthly report on the welfare of minor children. The appellant was also directed to facilitate an interaction between the respondent and the children through Skype video conference on weekly basis. It was further directed that after completion of Xth Standard by the son, the question of residence of the appellant and children in Delhi in pursuance of the order of this court shall be reviewed. It is pertinent to note that against the aforesaid orders, Special Leave Petition No.15517-5518/21 was preferred and the Special Leave Petition was dismissed by the Supreme Court by an order dtd. 4/10/2021. In the aforesaid factual background, this appeal has come up for our consideration. 11. Learned counsel for the appellant submitted that the appellant is the mother of the children and the daughter is of tender age. It is also urged that since 2017, the children are in the custody of the appellant. It is also pointed out that son was assaulted on 21/10/2017 by the respondent and his mother as well as the brother of respondent. It is also urged that the son is old enough to make an intelligent preference and wants to stay with the appellant. However, it is fairly admitted that in respect of the aforesaid alleged incident which took place on 21/10/2017, a closure report has been filed by the police authorities and the protest petition filed by the appellant has been rejected and the closure report has been accepted by the Magistrate. It is pointed out that son is suffering from depression and treatment has been given to him. It is also stated that for past about one year, even education expenses have not been paid by the respondent. It is also argued that appellant is available for the children and has taken care of the children. 12. It is submitted that financial capacity alone cannot be a criteria for appointment of guardian in respect of the children. It is also stated that for past about one year, even education expenses have not been paid by the respondent. It is also argued that appellant is available for the children and has taken care of the children. 12. It is submitted that financial capacity alone cannot be a criteria for appointment of guardian in respect of the children. Therefore, the impugned judgment insofar as it rejects the petition filed by the appellant under Sec. 7 of the Act, deserves to be set aside. In support of aforesaid submissions, reliance has been placed on the decision of this Court in 'CHETHANA RAMATHEERTHA Vs. KUMAR JAHGIRDAR' (2003) 3 KAR.L.J. 530 , decision of Madras High Court in 'N.PUNIDHA Vs. J.SELVAN' IN OSA NO.156/2008 AND M.P.NO.2/2008 and decision of learned Single Judge of Delhi High Court in 'PRABHATI MITRA Vs. D.K.MITRA' (1984) 25 DLT 186 . 13. On the other hand, learned counsel for the respondent, while inviting the attention of this Court to evidence on record, submits that from perusal of Ex.P58 i.e. the conversation recorded between the appellant and the respondent, it is evident that the appellant has agreed that she is in adulterous relation with her brother-in-law namely Rakesh Gupta. Our attention has also been invited to Ex.R20 to Ex.R25 and it has been stated that even when the appellant was residing with the respondent in the matrimonial home, she has tried to commit suicide more than once and therefore, suffers from mental disorder and is not a fit person to be a guardian of the children. It is also urged that the appellant has filed frivolous complaints against the respondent. It is also argued that this Court has to take into account the character and capacity of a person seeking appointment as guardian. 14. We have considered the rival submissions made on both sides and have perused the record. Sec. 17 of the Act deals with the matters to be considered by the Court in appointment of a guardian. Sec. 17(1) mandates that the Court, while appointing or declaring the Guardian of a minor shall subject to provisions of the Sec. , be guided by the law to which the minor is subject, as well as the circumstances to be for the welfare of minor. Sec. 17(1) mandates that the Court, while appointing or declaring the Guardian of a minor shall subject to provisions of the Sec. , be guided by the law to which the minor is subject, as well as the circumstances to be for the welfare of minor. Sec. 17(2) provides that the Court shall have due regard to the age, sex and religion of the minor and the character and capacity of the proposed guardian. Sec. 17(3) provides that if the minor is old enough to make an intelligent preference, the Court may consider the same. Thus, the Court should be guided by the sole consideration of welfare of the minor which depends on the facts and circumstances of each case. The father as well as mother are natural guardians of the minor. However, the issue with regard to guardianship has to be decided with reference to suitability of either the father or mother of the child who can ensure the welfare of the minor. 15. The object and purpose of guardian and wards Act, 1890 is not mere physical custody of the minor but due protection of rights of ward's health, maintenance and education. In considering the question of welfare of minor due regard has to be given to the right of father as natural guardian but if the custody of father cannot promote the welfare of children, they may be refused such guardianship. [See:'ROSY JACOB VS. JACOB A.CHAKRAMAKKAL', (1973) 1 SCC 840 ]. It is a well settled legal principle that there is a difference between custody and guardianship. Guardianship is a more comprehensive and more valuable right than mere custody. The court while exercising parens patriae jurisdiction is guided by sole and paramount consideration of what would best subserve the interest and welfare of the child to which all other consideration must yield. The welfare and benefit of the child would remain the dominant consideration.[See: 's MRITI MADAN KANSAGRA VS. PERRY KANSAGRA'. 16. In a dispute between the parents, the children are not chattels and are not the toys for their parents. The welfare and benefit of the child would remain the dominant consideration.[See: 's MRITI MADAN KANSAGRA VS. PERRY KANSAGRA'. 16. In a dispute between the parents, the children are not chattels and are not the toys for their parents. The children have to grow up in a normal balanced manner to be useful members of the society and the court in case of a dispute between the mother and the father is expected to strike just and proper balance between the requirements of the welfare of the minor children and the rights of respective parents over them. [See: GAURAV NAGPAL VS. SUMEDHA NAGPAL', (2009) 1 SCC 42 ]. The expression 'welfare of the child' comprehends an environment which would be most conducive for optimal growth and development of the personality of the child. [See: VIVEK SINGH VS. ROMANI SINGH', (217) 3 SCC 231]. 17. Now we may advert to the facts of the case in hand. The marriage between the parties was performed on 15/7/2005. Two children were born out of the wedlock and parties have stayed together till May 2016. Thereafter, the respondent discovered about the infidelity of the appellant and she left the matrimonial home in May 2016. It is not in dispute that on a petition being filed by the respondent, the marriage between the parties has been dissolved by a decree of divorce on the ground of cruelty and adultery on the part of the appellant. 18. Perusal of Ex.R20 to Ex.R25 discloses that appellant tried to commit suicide on 21/4/2015 as well as on 13/7/2015. The aforesaid fact indicates that the appellant is not mentally stable and the record also depicts that son is also suffering from depression and has received treatment for the said mental disorder during his stay with the mother. 19. The respondent is a graduate and is a businessman and has resources to provide quality education to the children. The respondent lives in a joint family with his mother, brother, brother's wife and brother's children who are of same age as that of son and daughter. The respondent has filed an affidavit that he shall uphold the bringing up of the children to their advantage and shall educate them with great care, concern and love, which is a family tradition. The respondent has filed an affidavit that he shall uphold the bringing up of the children to their advantage and shall educate them with great care, concern and love, which is a family tradition. It has also been averred in the affidavit that respondent shall spend necessary time and money for upbringing of the children and shall expose them to travel and recreation. It has also been stated by respondent in the affidavit that he has flexible work timings and the business is being managed by the joint family. He has also stated that he shall ensure that best of medical care, treatment and education is given to the children. 20. However, it is pertinent to note that the appellant has only passed Xth examination and has no source of income. This court by an interim order dtd. 26/8/2021, which has been upheld by the supreme court had permitted the appellant to take the children from Bangalore to Delhi to her maternal house and to reside with her parents for a period of one year i.e., till the completion of the academic year so that the son can complete Xth standard examination. However, in contravention of the aforesaid order and without seeking any leave of the court, the appellant with children is staying alone and away from her parents in Gurgaon. The appellant has violated the interim orders of the court and despite the admitted fact that academic session of the son is over has not returned to Bangalore. It is pertinent to note that the appellant has not filed any application permitting her to stay in Gurgaon. There is no material on record to indicate that at present, son is being treated for mental disorder in Delhi. Neither any application nor any affidavit has been filed in this regard except by making oral submission. It is also noteworthy that a bench of this court by an dtd. 26/8/2021, had directed the appellant to submit monthly report with regard to welfare of the children. However, even the aforesaid direction has not been complied with and monthly reports dtd. 10/9/2021, 10/1/2022 and 14/2/2022 have been filed. It is also noteworthy, that in the report dtd. 14/2/2022, the appellant herself has stated that the son is taking medication prescribed by Doctors at St.John's Hospital, Bangalore. 21. However, even the aforesaid direction has not been complied with and monthly reports dtd. 10/9/2021, 10/1/2022 and 14/2/2022 have been filed. It is also noteworthy, that in the report dtd. 14/2/2022, the appellant herself has stated that the son is taking medication prescribed by Doctors at St.John's Hospital, Bangalore. 21. The children need the environment and living conditions conducive to their holistic growth and development of the child. The respondent is residing in a joint family along with his mother and brother and brother's wife and children. The respondent has resources to ensure the physical and mental well being of the child. In Bangalore, children can stay in a joint family along with their grand mother, uncle and aunt and their children who are of the same age. The respondent has also undertaken to ensure that best of education and medical facilities are provided to children. Needless to state that the son can receive treatment for mental disorder in Bangalore, if required. Thus, the children can grow up in a conducive atmosphere which is necessary for their optimal growth and development of their personality. The children at this point of time needs the love, care, affection and guidance of their father. The son has admittedly passed the Xth Class examination and is required to be admitted in XIth Class and he would need the guidance of his father for making choice with regard to his career. The appellant admittedly is living alone with the children in Gurgaon and not in her maternal home. Even otherwise, on the touchstone of the criteria laid down in Sec. 17(2) of the Act, the conclusion arrived at by the Family Court is justified. 22. For yet another reason, no relief can be granted to the appellant as she has not filed an appeal against the judgment dtd. 28/2/2019 passed in G and WC No.177/2016 by which respondent has been appointed as guardian of the children. For the aforementioned reasons, we do not find any ground to interfere with the conclusion arrived at by the Family Court with regard to appointment of the guardian. 23. However, this court is under an obligation to ensure that sufficient visitation rights are granted to a parent who has not been appointed as Guardian so that children may not loose social, physical and psychological contact. 23. However, this court is under an obligation to ensure that sufficient visitation rights are granted to a parent who has not been appointed as Guardian so that children may not loose social, physical and psychological contact. The appellant who is the mother of the children needs to have access to the children. The parents are under an obligation to provide for an atmosphere which is reasonably conducive to the development of the child. It is in the best interest of the child to have parental care of both the parents, if not joint atleast separate. The children would remain in the care and custody of the respondent, therefore, the appellant should have access to the child. Therefore, we issue following directions: (i) The appellant is entitled to communicate with the child through phone/video call/skype etc. (ii) The respondent shall provide the school calendar of the children with list of holidays along with dates of examination to the appellant. (iii) The respondent shall keep informed the appellant of day to day development of the children on a weekly basis and the said communication shall be sent to the appellant on a Sunday every week. (iv) In case, appellant decides not to shift to Bangalore, the respondent shall provide tickets by air to the appellant once in two months to enable her to travel to Bangalore. The appellant shall intimate her desire to meet the children to the respondent in advance to enable him to procure the tickets. The appellant shall be at liberty to meet the children and spend time with them once in a month on a Sunday between 10.00 a.m. to 2.00 p.m. The appellant shall hand over the custody of the children on or before 27/6/2022 to the respondent so that they can be admitted in a school in Bangalore and can pursue their academic career in a school in Bangalore. (v) In compliance of interim order dtd. 18/8/2021, the respondent has deposited the amount of Rs.10.00 Lakhs by way of Demand Draft. The children have stayed with appellant in Gurgaon. The appellant has incurred expenses on account of rent as well as expenses on account of education of the children. Therefore, she is held entitled to withdraw the amount of Rs.10.00 Lakhs after handing over the custody of children to the respondent. The Registry shall pay the amount to the appellant upon due verification. The appellant has incurred expenses on account of rent as well as expenses on account of education of the children. Therefore, she is held entitled to withdraw the amount of Rs.10.00 Lakhs after handing over the custody of children to the respondent. The Registry shall pay the amount to the appellant upon due verification. The medical records submitted by Department of Psychiatry, St.John's Hospital, Bangalore is directed to be handed over to the respondent. Before parting with the case, we place on record our appreciation for Mr. K.N. Phaneendra, learned Senior counsel who on our request, interacted with the appellant and has rendered assistance to us. In the result, the impugned judgment and decree is modified to the extent mentioned above and the appeal is disposed of.