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2024 DIGILAW 2228 (GUJ)

DIPAL, D/O AMRABHAI BHARAI, W/O MIHIRBHAI RAYKA v. MIHIRBHAI GANDABHAI RAYKA

2024-12-19

BIREN VAISHNAV, MAULIK J.SHELAT

body2024
JUDGMENT : (BIREN VAISHNAV, J.) 1 This First Appeal under the Guardians & Wards Act, 1890, has been filed by the original -respondent – mother, challenging the judgement and order dated 10.01.2024 of the Principal Judge, Family Court, Gandhinagar in Civil Miscellaneous Application No. 07 of 2003. By the aforesaid judgement and order, the learned Principal Judge, Family Court, Gandhinagar, allowed the application of the respondent herein, the father, and granted the custody of son and daughter. 2 Facts in brief are as under: 2.1 The parties shall be referred to as the applicant-father, who is the respondent in this appeal and the respondent mother, who is the appellant herein. 2.2 The applicant-father filed an application under Sec.7 and 25 of the Guardians & Wards Act, praying that the custody of son Vedant and daughter Dhyana be granted to him. According to the applicant, it was his case that he was an Officer of the Indian Revenue Service, who had married the respondent on 06.07.2010. Out of the wedlock, son Vedant was born on 15.01.2011 and daughter Dhyana was born on 06.03.2013. It was his case that up to 10.10.2020, the applicant-father had their custody, however, subsequently the daughter Dhyana was with the respondent -mother. 2.3 According to the applicant, the mother was not very careful about the upbringing of the children. She would leave the matrimonial house periodically and stay with her parents. It was his case that he was staying with his mother who faced a lot of harassment from the respondent – wife. 2.4 On 05.02.2014, according to the applicant, the respondent- wife came late from the office and without any intimation, left the matrimonial home at Baroda for Ahmedabad. She, thereafter, left for Junagadh to her parents. According to the applicant, despite several phone calls to her and her father, there was no response. It was naturally a situation where the father was worried as the respondent had left with their two children for Junagadh. It was the case of the applicant, therefore, that the respondent-mother failed and neglected to take care of their children. That the education of the children was seriously compromised and though the respondent had returned to the matrimonial home with the children in March-April 2015, she subsequently left the house again. It was the case of the applicant, therefore, that the respondent-mother failed and neglected to take care of their children. That the education of the children was seriously compromised and though the respondent had returned to the matrimonial home with the children in March-April 2015, she subsequently left the house again. 2.5 It was the case of the applicant-father that the respondent was serving as a Government Employee i.e. as a Mamlatdar at the Disaster Management Office at Surat, and therefore, in the year 2018, she left both the children at Junagadh. She secured their admissions at Alpha School, Junagadh and as the children wanted to go back to Surat, they were brought back to Surat and their admission was secured at the G.D.Goenka International School, Surat. The respondent was in a habit to continuously fight with her mother-in-law i.e. the applicant’s mother. That there was an incident on 10.10.2020, where the respondent had an altercation with her mother-in-law in which she physically attacked her, that a false complaint was lodged by the respondent whereas the applicant’s mother was constrained to file an FIR. 2.6 According to the applicant, the education and the future of two children was suffering as a result of the character and the nature of the respondent who was working as a Mamlatdar. That it was important that for the welfare of the children they be in the custody of the father so that they can continue their schooling at G.D.Goenka International School, a reputed school in Surat. It was the case of the applicant – father that he being posted as a Joint Commissioner in the Central Government, his postings would be in metro cities and in the event of this transfer, the children could have their schooling in metro cities, whereas the respondent was a State Government employee and only a Mamlatdar. Her posting would be in taluka places where there will be no good schools imparting education in English medium. 2.7 In the application, reference was made to the Habeas Corpus proceedings in the Gujarat High Court, where the Court had passed an order to the effect that the son’s custody be also granted to the mother subject to the parties sorting out their legal rights under the Guardians & Wards Act. The respondent – wife filed a reply to the application and denied the averments made in the application. The respondent – wife filed a reply to the application and denied the averments made in the application. She would submit that she was competent and equipped to look after her children and after Habeas Corpus proceedings and the order of the High Court of 12.01.2021, both the son and the daughter were with her. That she was staying with her parents, her brother and sister-in-law in a joint family. That the children were studying in Anand Niketan School at Gandhinagar which was an English medium school. That the education was therefore taken care of and the application of the husband – respondent in this appeal ought to be rejected. The Family Court by the impugned order allowed the application, hence the appeal. 3 Mr.Ashish Dagli, learned counsel appearing for the appellant – mother would submit that the Family Court, Gandhinagar, committed a serious error in handing over the custody of the minors Vedant and Dhyana to the father. Taking us to the reasons assigned by the Family Court, Mr.Dagli, learned counsel, would submit that the Family Court was clearly in error in considering the aspects of a better financial status of the respondent-father as he was a revenue service officer and the Trial Court also committed an error in holding that since the respondent – original applicant – father was a Central Government employee and his posting would be in metro cities, the children would be in a better position to receive education in English medium school in metro cities which would not be possible for the mother to offer as she was a State Government employee posted at taluka places. He would submit that these issues were not really relevant or germane to the paramount welfare of children. 3.1 Mr.Dagli, learned counsel, by reading the relevant portion of the judgement of the Family Court, would submit that while considering the question of custody and essentially holding that the mother was not fit to have their custody, was a finding based on the statement of the employee and the persons who had given police statements in context of an FIR lodged with the police station by the mother-in-law. He would submit that the learned Family Court, rather than examining these witnesses before it, merely relied on their statements given to the police in an FIR filed by the husband’s mother. He would submit that the learned Family Court, rather than examining these witnesses before it, merely relied on their statements given to the police in an FIR filed by the husband’s mother. The evidence therefore that was considered by the Family Court was in fact, not on record. 3.2 Mr.Dagli, learned counsel, would further submit that the Family Court at no stage made an attempt to call the children to ascertain their wishes or considered the welfare of the children. At the request of the appellant – mother, the proceedings were transferred from Surat to Gandhinagar. It was only when an Habeas-Corups petition was filed that the Court handed over the custody of son Vedant. As far as the question of the quality of education that the students were taking at the G.D.Goenka International School, Surat is concerned, Mr.Dagli, learned counsel, would submit that the wife having already separated and staying at Gandhinagar, they were pursuing their education in a reputed school. The E-mails addressed by the school at Surat that the children were missing their classes would not be relevant as the children who are otherwise staying at Surat with their father prior to the filing of the Habeas Corpus petition were then shifted to Alpha School, Junagadh and then to a school of repute in Gandhinagar. 3.3 Mr.Dagli, learned counsel, would submit that the allegation that the appellant – wife was accused of violation of government rules in various revenue proceedings were only mere newspaper cuttings and no action was taken against the appellant-wife. Mr.Dagli, would further submit that the appellant-mother is staying with her parents and her brother and sister-in-law who are well equipped, and therefore, the children would feel better comfort if they were with the mother. He would assail the finding of the Family Court which opined that it was irrelevant for the learned Judge to consider photographs and observe that the custody of the children be given to the father as he appears to be happy in the photographs. 3.4 Mr.Dagli, learned counsel, would further submit that during visitation rights given to the father, the daughter would complain that the father never attended them. 3.4 Mr.Dagli, learned counsel, would further submit that during visitation rights given to the father, the daughter would complain that the father never attended them. The observations of the Family Court setting out the comparison of insurance policies and financial security and thereby holding that since the father had an insurance cover in favour of their children made it possible for the father to have the custody whereas it was the case of the respondent-mother that the children were better equipped is a finding which is not relevant for deciding the issue of custody. He would lastly submit that the mother is now a Deputy Collector and would not be posted at taluka centers and therefore the education of the children will not be affected. Moreover, the mother is a qualified Doctor and is in a position to take better care of her children. 3.5 Mr.Dagli, learned counsel, would rely on the following decisions: (1) Dr.Ashish Ranjan Vs. Dr. Anupama Tandon & Anr., reported in (2011) 1 SBR 459. (2) Thrity Hoshie Dolikuka Vs. Hoshiam Shvaksha Dolikuka., reported in (1982) 2 SCC 544 . (3) Gaurav Nagpal Vs. Sumedha Nagpal., reported in AIR 2009 SC 557 . (4) Moitra Ganguli reported in 2008 AIR SCW 4043. 4. Ms.Trusha Patel, learned Senior Counsel appearing with Mr.M.J.Parikh, learned counsel for the respondent herein, would make the following submissions:- 4.1 She would submit that no fault can be found with the order of the Family Court at Gandhinagar by which the custody of both i.e. the son Vedant and daughter Dhyana was handed over to the father. It was so done by the Court keeping in view the paramount consideration i.e. the welfare of the child. Ms.Trusha Patel, learned Senior Counsel, would take us through the E-mail and the letters written by the G.D.Goenka International School, Surat, and submit that the school had to address notices to the father because of lack of attendance of children and their failure to attend on-line classes and take exams. She would submit that though the father had informed the mother, the appellant herein to respond to the letter of the school, when the school in turn, did interact with the mother, she did not respond to the E-mails. She would submit that though the father had informed the mother, the appellant herein to respond to the letter of the school, when the school in turn, did interact with the mother, she did not respond to the E-mails. Ms.Patel, would rely on the cross-examination of the appellant-wife and submit that the custody was rightly handed over to the father as reading the script of whatsapp chat which were on record, would indicate that the wife was in the habit of coming late from the office. She would submit that even the newspaper cuttings produced before the Court indicated that her character in government service was not good and she was facing the charges of corruption. This would, therefore, necessarily make it important for the children to stay away from the mother whose character was not impeccable. She would further submit by putting on record the show cause notices that the mother had received for misconduct with regard to the proceedings under Sec.43 of the Tenancy Act, irregularities in mutation proceedings and tenancy proceedings, and therefore, the father had greatest concern for the children. She submitted that while considering the welfare of the children, not only did the Court consider the aspect of education but considering moral values and socio economic consideration it was in the fitness of things that the custody of the children be given to the father. 4.2 Ms.Patel, learned Senior Counsel, relied on the following decision: (1) Col. Ramneesh Pal Singh Vs. Sugandhi Aggarwal., reported in AIR 2024 SC 2350 . 5 Having considered the submissions made by the learned counsels appearing for the respective parties, and having examined the judgement of the Family Court at Gandhinagar, we note that there were contesting claims of the father- the applicant before the Family Court and the respondent-mother, on the question of custody of son Vedant whose date of birth is 15.01.2011 and is therefore aged 13 and daughter Dhyana, whose date of birth is 06.03.2013 and is aged 11. At the cost of repetition, to reiterate the stand of the father before the Court, it was his case that he being an Officer of the Indian Revenue Services, which was an All India Service, his postings would always be in a metro city which would facilitate the children’s education in good English medium schools. At the cost of repetition, to reiterate the stand of the father before the Court, it was his case that he being an Officer of the Indian Revenue Services, which was an All India Service, his postings would always be in a metro city which would facilitate the children’s education in good English medium schools. It was his case that he was a Central Government employee and a high ranking official, therefore, had a higher salary. That the children had an insurance in their name, and therefore, the future of the children was safe in his hands. It was also the case of the father before the Family Court that the mother’s character was not above board, inasmuch as, as per the newspaper cuttings, she was facing departmental action and therefore the children cannot be left to her care when the moral values are at stake. That she was a State Government employee working as a Mamlatdar which would entail her postings at taluka places which will not have good schools which could cater to the education in an English medium. The respondent-mother / the appellant herein, was therefore ill equipped to have custody of the children. 6 Having examined the order of the Family Court, we find that the Family Court after recording the contesting claims, assigned several reasons to hold that the custody of the children had to be with the father and not with the mother. 6.1 One of the facets that has weighed with the Family Court are the proceedings of the Habeas Corpus Petition filed by the wife, where the Court granted the custody of son Vedant to her when daughter Dhyana was already with her. The Family Court found that despite directions to expedite the hearing of the custody application, the respondent– mother, the appellant herein, had intentionally delayed the hearings in the custody application. After recording that the Court had to decide the application keeping the paramount consideration of the welfare of the children in custody, it assigned the following reasons to grant the custody to the mother. (i) It noted that Criminal Case No.4175 of 2021 was lodged against the mother by her mother-in-law, the husband’s mother. The police had recorded statements of various individuals in these proceedings. Reading of such statements would indicate that the mother would very often leave the matrimonial home and go to her parents. (i) It noted that Criminal Case No.4175 of 2021 was lodged against the mother by her mother-in-law, the husband’s mother. The police had recorded statements of various individuals in these proceedings. Reading of such statements would indicate that the mother would very often leave the matrimonial home and go to her parents. (ii) That she would at times go away for three to four days and return home late at night. That there was an altercation on this between the couple. It was found from the statement of one of the employees in the household that there was a regular altercation between the family members where the wife would shout and that the husband had sustained some injuries. 6.2 Based on this set of evidences, the Trial Court came to the conclusion that these incidents would reflect the character of the mother which would not be good for the upbringing of the children. The Family Court, further recorded that the father was an All India Service Officer holding a high rank in the revenue services particularly that of the Additional Commissioner at the relevant point of time. He would, therefore, by virtue of his rank be posted in big cities where the children would have better education, especially in English medium schools. The mother, who was a Mamlatdar, would have posting at taluka places, and therefore, could not be said to be equipped in educating the children because such taluka schools would not have good English medium schools. 6.3 The Trial Court further recorded that the mother had been careless in terms of education of her children as was evident from the letters from the G.D.Goenka International School at Surat, which had expressed concern over lack of their attendance, which indicated that the mother was not responsible enough regarding the children’s education. That the mother had been unable to prove that while the children were with her, their education graph had improved. All these circumstances would have to be weighed especially when the children grow up and have to undertake secondary education. 6.4 Undertaking an exercise of comparing the financial stability of the parties, the Family Court observed that the financial condition of the father was much better as he had a salary of Rs.1,46,000/- whereas the mother’s salary as a Mamltadar was only Rs.60,000/-. Higher salary would make the father better equipped to meet the needs of the children. 6.4 Undertaking an exercise of comparing the financial stability of the parties, the Family Court observed that the financial condition of the father was much better as he had a salary of Rs.1,46,000/- whereas the mother’s salary as a Mamltadar was only Rs.60,000/-. Higher salary would make the father better equipped to meet the needs of the children. Having recorded that it was true that both, the mother and the father, equally loved their children, the Family Court found that since the respondent – mother was serving as a Mamlatdar, currently serving as Deputy Collector, and there were reports in the newspaper about her integrity in government service and that she had been irregular in her attendance while working as a Mamlatdar and she was in violation of government rules, it would be better if the custody of the children is not handed over to her. 6.5 The other factor that weighed with the Court was certain photographs, 12 in number at Exh.86 by the applicant-husband. The Court on seeing these photographs opined that the children were found to be happier in the company of their grand mother on the paternal side and moreover, since the father had taken up insurance policy from the HDFC Bank for which a premium was paid up to 25.07.2024, the children were more secure with the father. The mother had not responded to the mails sent by the Goenka School. All these factors, therefore, weighed with the Trial Court in allowing the application and granting custody of the minor children to the father rather than the mother. 6.6 With regard to the custody of the children, it is no longer in doubt that when the Court has to take a call on the custody of children, paramount consideration of welfare of the children should be of utmost importance for the Court to consider. It is the welfare of the children and the right of the parents which will decide the issue of custody. The question therefore before us is as to how can the welfare of a child be ascertained. The welfare of the child is not to be measured by money alone nor by physical comfort only. It is the welfare of the children and the right of the parents which will decide the issue of custody. The question therefore before us is as to how can the welfare of a child be ascertained. The welfare of the child is not to be measured by money alone nor by physical comfort only. The word “welfare must be taken in its widest sense.” Welfare is an all encompassing word which includes material welfare both in the sense of adequacy of resources to provide a person home and comfortable standard of living and in the sense of adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place, they are secondary matters. 6.7 True it is that stability and security are germane to an issue of custody but it is more important that the issue is examined from the angle of the longing and understanding care and guidance, the warm and compassionate relationships which are essential for full development of the child’s own character, personality and talents. In our opinion, therefore, it will be erroneous to give sole or more importance to the super financial capacity of the party. In the case of Rozy Jacob vs. Jacob A. Chakramakkal, reported in 1973 (3) SCC 918, the Hon’ble Supreme Court has held that merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to a conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards the children. 6.8 Perusal of the order of the learned Trial Court would indicate that while considering the question of custody and holding in favour of the applicant-father who filed such application, the Trial Court while weighing option and granting such custody to the father was influenced by a few considerations which in our opinion may not be wholly relevant for considering the issue from the angle of the welfare of the child. Firstly, the Trial Court influenced itself in coming to a conclusion that it did on the basis of the statements recorded by the Police in context of a complaint filed by the husband’s mother. Firstly, the Trial Court influenced itself in coming to a conclusion that it did on the basis of the statements recorded by the Police in context of a complaint filed by the husband’s mother. These statements may have come in support of the husband’s case for custody to reflect the character of the mother to disqualify her from custody, but police statements in absence of any direct and cogent examination of such witnesses by the Trial Court, could not have been taken into consideration to measure the qualifications or disqualifications of a parent for its right to the custody of children. 6.9 Secondly, what we find from the discussion of the Trial Court is that it weighed the financial stability or prospects of the warring parents. The Family Court found that since the father was better salaried, albeit, not so vastly better equipped than the mother who was a government employee, the Trial Court came to the conclusion that apart from the salary structure, the fact that the children’s medical and other facilities were insured through a policy from the HDFC, their financial future was secured. It is but beyond doubt that though better financial resources of either of the parents may be one of the factors, we find that it was one of the major if not the sole determining factor which the Trial Court considered to be in favour of the father to befit his claim for custody. While exercising judicial discretion, still it was imperative for the Family Court to consider all the relevant facts and circumstances keeping the welfare of the child as the paramount consideration. 6.10 We note that after engaging in comparison of the two of the warring parents, career standards, and because the father was in all India Service and therefore by virtue of his postings in a metro city would be better equipped as English medium schools were available, was a ground, in our opinion completely irrelevant for considering it as a factor in favour of the father by giving the custody. During the pendency of this appeal, we are informed that the mother is working as a Dy.Collector and is posted at Gandhinagar. During the pendency of this appeal, we are informed that the mother is working as a Dy.Collector and is posted at Gandhinagar. We also note that the children, by virtue of the order passed in the Habeas Corpus petition are in the custody of the mother and as even recorded by the Family Court are undertaking their studies at a school in Gandhinagar would belie the observations of the Family Court in weighing the option against the mother as being unable to support the children’s education in an English medium school by virtue of her posting as a State Government Officer. 6.11 Education, true it is would be the very foundation for the development and growth of the child. But merely because the children could have the opportunity of studying in an English medium school would not make their welfare better. Schools in whichever medium of instructions, they impart education and can be engines of growth and play a role in a child’s personality be it a Gujarati medium school. Merely because an education in the medium of English is available would not make the child’s welfare better so as to weigh to have a preferential right to the custody of children. What the learned Family Court has lost sight of on examining the evidence on record is “human touch”. The human touch is the primary want for the welfare of the minor children since the other materials may be created either by the parties themselves or on the advise of the counsel to soothe their convenience. It is true that the Courts exercising its jurisdiction in such cases would give due weight to the circumstances such as a child’s ordinary comfort, contentment, intellectual, moral and physical development, health, education and general maintenance and the favourable surroundings, the cases have to be decided ultimately on the Court’s view. 6.12 On examination of the evidence on record, it is apparent that the father has tried to sully the character of the respondent-wife, the mother of the children by bringing on record paper cuttings to indicate that the wife is facing charges of corruption in her service, that she is not maintaining the rules and regulations of the service that demand discipline looking to her position so as to make her character questionable. However, we are afraid to opine that apart from these being allegations made so as to dilute the mother’s right to custody, there is absence of any concrete evidence which even otherwise may not be germane for determining a mother’s primary right to nurture her minor children. 6.13 We are afraid to hold that the observations of the Family Court in being influenced by such observations and evidence to disqualify a mother of her children’s custody do not require any consideration in dealing with the issue when it comes to the paramount welfare of the children. We may note that during the pendency of this appeal, we had an occasion to interact with the children and had worked out as interim arrangement by our order dated 18.01.2024. The order which recorded the interim arrangement, when we heard the appeal at the first instance, reads as under: “1. Mihirbhai Gandabhai Rayka was the original applicant in Civil Misc. Application No.07 of 2023. The application was filed under the Guardian & Wards Act for the custody of the son “Vedant” and the daughter “Dhyana”, born out of the wedlock with the appellant – Dr. Dipal Amrabhai Bharai. 2. By an order dated 10.01.2024, the learned Principal Judge, Family Court, Gandhinagar, allowed the application of the respondent herein – Mihirbhai Gandabhai Rayka directing that the custody of the son Vedant and the daughter Dhyana be handed over to Mihirbhai Gandabhai Rayka. Aggrieved by the said judgment and order, the wife - Dr. Dipal Amrabhai Bharai is before this Court in First Appeal. 3. At the request of learned advocates for the respective parties, we took up hearing of the First Appeal and Civil Application in the Chamber. We had an occasion to interact with the appellant, the children and Mihirbhai Gandabhai Rayka individually and independently. 4. Having heard Mr. Ashish Dagli, learned advocate for the appellant and Ms. Trusha Patel, learned senior advocate with Mr. M.J. Parikh, learned advocate for the respondent – Mihirbhai Gandabhai Rayka, purely as an alternative / interim mechanism pending Appeal, it is agreed between the parties that the respondent - Mihirbhai Gandabhai Rayka shall have visitation rights from 12:00 noon on 19.01.2024 to 12:00 noon on 21.01.2024. Trusha Patel, learned senior advocate with Mr. M.J. Parikh, learned advocate for the respondent – Mihirbhai Gandabhai Rayka, purely as an alternative / interim mechanism pending Appeal, it is agreed between the parties that the respondent - Mihirbhai Gandabhai Rayka shall have visitation rights from 12:00 noon on 19.01.2024 to 12:00 noon on 21.01.2024. The arrangement will be made by the respondent - Mihirbhai Gandabhai Rayka to pick up both the children at slated time from their residence and drop them at slated time on 19.01.2024 and 21.01.2024 respectively at their residence. It is clarified that both the parties shall adhere to the time limits of pick up and drop as prescribed in the order. Further arrangement shall be made for picking up the children by the father on 26.01.2024 at 12:00 noon and to be dropped back with the mother on 28.01.2024 at 12:00 noon. 5. It is clarified that this is only an interim mechanism arrived at between the parties subject to further hearing of the appeal on merits. S.O. to 01.02.2024. It is also clarified that at present, this Court has not gone into merits of the dispute.” 6.14 Subsequently, on 01.02.2024, we recorded as under: “After the arrangement that was worked out pursuant to the order dated 18.01.2024, today we have again ascertained the intention of both son Vedant and daughter Dhyana individually. Vedant and Dhyana both have certain reservation on spending a longer time with the respondent – Mihirbhai Gandabhai Rayka. We make it clear that we are not going into the intention or the observation of the children as of now. However, we would still like to see that the children visit their father – respondent herein for one more time as of now. The respondent- Mihirbhai Rayka shall pick up both the children on Sunday at 10 am and shall drop the children back with the appellant- mother by 8 pm i.e. on 04.02.2024. Stand over to 08.02.2024.” 6.15 The arrangement had continued over the pendency of time in this appeal with some minor changes. On 09.05.2024, this Court passed the following order: “1. The grievance was made that as agreed before this Court though the applicant, was to make available the children on 28th April, 2024 and 5th May, 2024, however, the children were not sent. On 09.05.2024, this Court passed the following order: “1. The grievance was made that as agreed before this Court though the applicant, was to make available the children on 28th April, 2024 and 5th May, 2024, however, the children were not sent. It was because of the said reason, the Court requested the applicant and the children, to remain present and to ascertain their wish. 2. We have interacted with both, the son Vedant and the daughter Dhyana in Chamber. 3. The request was also made by the respondent that he be permitted to spend some time with the children during the vacation, may be for 10 days or so. Ascertaining the wish of the children, for time being, this Court deems it appropriate that let the children, meet father on Saturdays and Sundays, i.e. 11th May, 2024 and 12th May, 2024 and thereafter, the same, be repeated on 18th May, 2024 and 19th May, 2024 and if the children wish to go back, the father, shall drop them on Saturday night and again bring them on Sunday. 4. Besides, it will be open to the applicant and respondent to mutually discuss and agree for an arrangement so that the children may spent some time with the father in the week commencing from 20th May, 2024. Thereafter, for rest of the Sundays, the earlier arrangement, to continue, i.e. the children, will visit the father every Sundays i.e. 26th May, 2024, 2nd June, 2024, 9th June, 2024 and 16th June, 2024. 5. List the matter for further hearing on 18th June, 2024.” 6.16 The appeal was then sent for mediation by our order dated 18.06.2024. The mediation failed and the interim arrangement was continued. As noticed herein above, this Court had an occasion to interact with the two children while this Court had extended the interim arrangement as on more than one occasion had an opportunity to interact with children Vedant and Dhyana, the son and the daughter respectively. Initially, the arrangement had worked, inasmuch as, Vedant and Dhyana would go to their father’s place as per the arrangements on weekends. However, over a period of few weeks, we find that the children had developed reluctance or reservation to visit the father. Initially, the arrangement had worked, inasmuch as, Vedant and Dhyana would go to their father’s place as per the arrangements on weekends. However, over a period of few weeks, we find that the children had developed reluctance or reservation to visit the father. It is in these circumstances that we are requested by the learned counsels for the parties to adjudicate the appeal on merits and it was under these circumstances that we did so. 7 We note and make it clear that, we proceeded to examine the order on merits. True it is as is evident from the judgement in the case of Col. Ramneesh Pal Singh (supra), that physical comforts, moral and ethical values cannot be ignored and they may be equally important, essential and indispensable considerations, we find that the Family Court while granting the custody of the children to the father on the basis of better education in a metro city, the father being in the All India Services and having an insurance policy in favour of the children, the FIR against his wife were considerations which were not really, in our opinion, germane to the paramount consideration of the welfare of the children who now, over a period of four years are with the mother and studying at a reputed school at Gandhinagar. The fact that the mother is a State Government employee as compared to the husband’s employer being the Central Government, is a consideration which was irrelevant in our opinion for granting the custody to the respondent-father. 7.1 At last, we may not lose sight of fact that wishes of children is also one of relevant factors and as per Sec.17(3) & (5) of Guardians & Wards Act, the Court shall not appoint any person to be guardian against his/her will. 8 For the aforesaid reasons, we quash and set aside the judgement and order dated 10.01.2024 of the Principal Judge, Family Court, Gandhinagar in Civil Miscellaneous Application No. 07 of 2003. The appeal is accordingly allowed. Having so observed herein above, both children are reluctant to go with father in visitation period which is self evident, that Court should not go against their wish. In view of disposal of the main appeal, the interim arrangement granted in the civil application earlier, shall not continue anymore. Civil Application is disposed of, accordingly.