ORDER : (BIREN VAISHNAV, J.) 1. This First Appeal has been filed by the original applicant before the Family Court - Ashma Farukbhai Dakwala under Section 19 of the Family Court Act, 1984 . She had approached the Family Court by filing Civil Misc. Application No.51 of 2019 for getting custody of her minor daughter Aayesha from the respondent father under Section 25 of the Guardians and Wards Act, 1890 . By the Judgment and Decree dated 08.04.2024 passed by the Family Court No.3, Ahmedabad, the application came to be rejected. Hence, the appeal. 2. Facts in brief indicate that the marriage between the appellant and the respondent was solemnized on 28.03.2010. Out of the wedlock, daughter Aayesha was born on 02.11.2014. Before the Family Court it was the case of the applicant that she was driven out of her matrimonial home in August, 2018. On 19.11.2018, a notice of Talaq was sent to her and hence she was then compelled to perform Iddat for three months. She then resorting to Section 97 of the Code of Criminal Procedure on 18.03.2019 sought custody of her daughter. The application was then filed under Section 25 of the Guardians and Wards Act in the year 2019 inter alia praying for custody of her daughter. In the interim application filed for custody, by virtue of order passed by this Court in the First Appeal, visitation rights were granted to her as directed in the order of the First Appeal. By the impugned order, her application for custody has been rejected. The contents of the application before the Family Court indicate that it was her case that at the time when custody was sought, Aayesh was aged 4 years. That she was not being taken care of by her father. That she was being made to undertake house-hold works in light of the fact that her mother-in-law was bed ridden and that her husband had a step father with whom the mother- in-law was residing. Before the Family Court, she had by way of evidence sought to produce photographs as she was residing adjacent to the house of her husband from where she could visually view the house of the husband where the child was in custody. 3. Before the Family Court, she had by way of evidence sought to produce photographs as she was residing adjacent to the house of her husband from where she could visually view the house of the husband where the child was in custody. 3. In short, it was her case that as a mother she would naturally be befitting to have the custody of her minor daughter as she was capable of taking care of her because apart from her, in the family she had her sister and her mother. As compared to this, the family of her in-laws consisted of her husband, and her step father. The only female member in the house was her mother-in-law who was bed ridden and she therefore, was not in a position to take care of the daughter. The applicant offered herself for examination-in- chief and cross-examination and she stood by her statement made in the memo of the application. She was examined at Exh.-28. 3.1 The respondent husband filed written statement contesting the custody application. In the written statement apart from making claim that as a father he was competent to have custody of the daughter and that custody had remained with him for over a period of 6 years, there was no reason why the daughter’s custody be moved out of his control to that of the mother. In the written statement, it was the case of the respondent that the applicant was a quarrelsome wife, that she had an extra marital relationship with one Jitendra Mali and therefore, being a lady of doubtful character, she was not entitled to the custody of daughter Aayesha. It was further his case that he was economically sound inasmuch as he was a lawyer of good practice, his step father was also working as a lawyer and that since fees and expenses of the child’s education were borne by him, the custody ought to be retained by him, the father. He also, in support of his evidence apart from being examined and cross-examined, had sought to bring on record phone chats and video clips and copy of a diary recovered from the possession of the wife to indicate that the wife was in relationship with one Jitendra Mali from whom they would purchase groceries and therefore, the daughter did not deserve to be in custody of a woman who was not loyal to the marriage. 3.2 Apart from the husband being examined and cross- examined, he had examined on his behalf one Salim Kasambhai Ajmerwala, President of Madrasa Arabiya Anwarul Ulum Trust at Exh.-106, who in his testimony had supported the father on the aspect of the breakdown of marriage and the relationship of the appellant with one Jitendra Mali. 3.3 Before the Trial Court was also on record at Exh.-78, the statement given by Jitendra Mali before the police on a complaint being lodged by the respondent where, according to the respondent he had admitted of having undertaken phone chats and interacted with the applicant on Facebook Messenger. 3.4 After examining these evidences on record, issues were framed by the Trial Court. The Trial Court found that as far as the allegations of harassment are concerned, the allegations and counter allegations were regarding harassment of the applicant only by his family members and not to the minor daughter. The Trial Court also found that the applicant had not examined any witness or other family members to prove such harassment and therefore, there was no substantial and specific incidents of cruelty regarding any type of humiliation being given by the opponent on the aspect of the photographs produced by the wife with regard to the harassment to the child. The Trial Court disbelieved the photographs on the ground that the certificate issued under Section 65(B)(4)(c) of the Evidence Act was issued by one Safwan Sheikh which cannot be believed because Safwanbhai was not examined as a witness. Similarly, the version of the respondent with regard to the relationship with Jitendra Mali based on Facebook Messenger chats and phone call records was not believed as according to the Trial Court that was not substantial evidence to prove the charge as, at best, these were in the words of the Trial Court, “relationship of Hi-Hello”. However, the Trial Court after having examined the original diary produced at Exh.-59/3 went into exercise of comparing hand writings of the applicant at Mark.-30, 31, 32, 33 and 39 and found that there may be some substance in the allegations. 4. However, the Trial Court after having examined the original diary produced at Exh.-59/3 went into exercise of comparing hand writings of the applicant at Mark.-30, 31, 32, 33 and 39 and found that there may be some substance in the allegations. 4. The Trial court after discounting the versions of both the allegations made on the aspect of the welfare of the child opined that since the child has remained in custody of the opponent since 18.11.2018 and as no legal proceedings were taken for over a period of one year, considering the facts and circumstances of the case and particularly when from the versions of the applicant that the daughter can sleep with her sister-in-law suggested that the welfare of the child to be in the custody of the father was not at risk. Based on these findings, the Trail Court rejected the application for the child’s custody. 5. Mr. Nirav C. Thakkar, learned counsel appearing wtih Mr. Amit Tiwari, learned counsel for the appellant, submitted as under : (i) That the child Aayesha was aged 4 years when the application for custody was made. It was her case in the application that since August, 2018, she had been driven out of the house despite she being ready and willing to honour the marriage; that after receiving the notice of Talaq on 19.11.2018, she was compelled to stay indoors to undergo Iddat for three months which period expired in February, 2019 and immediately thereafter, she moved the court for custody of her daughter. He would therefore, submit that the findings of the Trial Court that merely because the custody of the child has remained with the father during the period of pendency of the custody application cannot be the sole ground to deny the custody of the child. (ii) That both the father and the step father are lawyers; they remain busy with their professions, the grand-mother is bed ridden and therefore, the child Aayesha, who at that time was aged 4 years, is now aged 10 years, she will soon attain the age of puberty and therefore, the welfare of the child is always in safer hands of the mother. (iii) That the child was not in a position to enjoy good food in absence of any female in the family and therefore, she had to take her lunch at school canteen. (iii) That the child was not in a position to enjoy good food in absence of any female in the family and therefore, she had to take her lunch at school canteen. This was one more ground on which the custody of the daughter should be given to the mother. 6. Mr. K.V. Shelat, learned counsel for the respondent would submit as under : (i) That no error was committed by the Family Court in refusing the custody of the child Aayesha to the mother. (ii) That though the respondent was a lawyer, he was dealing in practice concerning documentation and therefore, was in a position to spend time with the child. That the child is sent to the school by the father and from these circumstances, it can be inferred that the child obviously was a brilliant child who can be taken care of by the father. (iii) That it has come on record from the photographs and video chats and the diary which the Trial Court has believed that there is some substance in the allegations of the respondent that the applicant had a relationship and therefore, even otherwise, she was not a person found to have the custody of the child. He would also rely on the statement given by Jitendra Mali at Exh.-78 before Gaekwad Police Station where, according to Mr. Shelat, he had admitted that he did indulge in Facebook Messenger and voice chats with the wife. In support of his submissions, Mr. Shelat would rely upon the decision of the Supreme Court in the case of Col. Ramneesh Pal Singh vs. Sugandhi Aggarwal , reported in [2024] SCC OnLine 847 , leading the parents on the aspect of Parental Alienation Syndrome. Further referring to the various decisions that the Supreme Court on the custody of the child had in the past delivered, Mr. Shelat would submit that in that case, the court found that it was befitting for a father to have the child custody. He would therefore, submit that when the Supreme Court in the facts of that case found that the father was a befitting natural guardian, there was no reason why the custody should be retained by the father and the order of the Family Court therefore, was just and proper. He would therefore, submit that when the Supreme Court in the facts of that case found that the father was a befitting natural guardian, there was no reason why the custody should be retained by the father and the order of the Family Court therefore, was just and proper. He would submit that because of paucity of time, the documents could not be sent for FSL examination, otherwise, the allegations of relationship by the wife could have been substantiated. 7. Having considered the submissions made by the learned counsel for the respective parties and assessed the facts on hand, what we find from the application filed by the applicant, the written statement filed by the respondent and the examination and cross-examination of the appellant and respondent respectively is that, the couple was happily married as it was a love marriage and in August, 2018, there was a separation. The formal separation came into force by virtue of Talaq on 19.11.2018. Aayesha, who was born on 02.11.2014 was aged 4 years when she had undergone the experience of parental separation. It was the case of the applicant that she was driven out of the house, that she could not take away the child with her, as she was assured that the child who at the time when she was so driven out, was in comfort at the father’s house with the parents and sister-in- law. Allegations and counter allegations have been raised by both the parties inasmuch as the case of the appellant before the Family Court was that criminal cases have been filed for intimidation and harassment by the in-laws, that the custody of the child was forcibly taken, as a result of which, she was compelled to initiate action under Section 97 of Cr.P.C. and that she could take pictures from her residence on the 3 rd which was neighbouring the husband’s house where, according to her, Aayesha was made to work i.e. indulge in the house- hold chores and also was tortured by her mother-in-law. On the aspect of counter allegations made by the husband, it was his case that the wife had entered into relationship with one Jitendra Mali and in support thereof, he tried to produce before the Family Court chats through Facebook Messenger. On the aspect of counter allegations made by the husband, it was his case that the wife had entered into relationship with one Jitendra Mali and in support thereof, he tried to produce before the Family Court chats through Facebook Messenger. Both these aspects have not been believed by the Family Court on the ground that as far as wife is concerned, her photographs were not substantiated through a certificate under Section 65(B) of the Evidence Act and that of the husband because there was no independent witness. However, unfortunately, the Family Court seems to have, and in our respectful opinion, unjustifiably so gone into the minute examination of the diary found in the possession of the applicant. If, for the Trial Court, Section 65(B) certificate being absent at the hands of the wife for her evidence and in absence of any separate independent evidence on the side of the husband to prove the relationship was not enough to believe the allegations, it was not the business of the Family Court in a custody matter to indulge in comparing hand writings of the appellant in the diary with the hand writings in other exhibit to hold that “the allegations of the respondent that the wife had relationship had some substance”. Even when the statement of Jitendra Mali is examined and so also statement of the respondent before the police authority, it comes out that it was a complaint made by the husband against Jitendra Mali because it was the applicant who suggested that she is being harassed by Jitendra Mali which is even evident from the statement made before the police by the respondent on 20.03.2019 and 13.08.2016. Obviously therefore, once having been held that, there was no substantial evidence on record to prove the allegations of relationship, the Trial Court had no business to go further and discuss the appellant’s character based on the handwritings in the diary. However, we will be fair to the Trial Court, because at least from the order it appears that, that is not the reason why the custody of the child was not given to the mother. 8. However, we will be fair to the Trial Court, because at least from the order it appears that, that is not the reason why the custody of the child was not given to the mother. 8. One more reason that seems to have weighed with the Trial Court in refusing to grant custody is that since both the parties have separated in August, 2018 and the child had remained in custody for over a period of 8 years now with the father, the sudden change would traumatize the child. While discussing the aspect of welfare of the child, the Trial Court then without any basis or evidence on record found that while the father did take care of giving food, mother used to watch TV and that the child was more happy with the father than mother, and from the thoughts of the minor child it was clear that she wanted to reside with the father and not the mother. 9. In the decision cited by Mr. Shelat in the case of Col. Ramneesh Pal Singh (Supra), the concept of Parental Alienation Syndrome has been discussed. On the basis of analysis and findings, while referring to the earlier decision of the Supreme Court in case of Nil Ratan Kundu and Another vs. Abhijit Kundu , reported in [2008] 9 SCC 413 and Vishnu and Others vs. Jaya , reported in [2010] 6 SCC 733 and in case of Rosy Jacob v. Jacob A. Chakramakkal , reported in [1973] 1 SCC 840 , we find from the decision of Col. Ramneesh Pal Singh (Supra) that the Supreme Court found that the father was a better guardian and fit for custody in light of the fact that during the interaction with the minor children it was found that they were unwavering and strong and they deserved to be continued with the father. Moreover, the Court found that the father was a serving ofÏcer in the Indian Armed Force which provided a robust support system to the kins of its ofÏcer(s) so as to ensure minimal disruption in the lives of the civilian member(s) of an ofÏcer’s family. The support system included residential accommodation, a network of army schools, hospitals and healthcare facilities. It was in these facts the Supreme Court found that the father was a better person to retain the custody of the child. The support system included residential accommodation, a network of army schools, hospitals and healthcare facilities. It was in these facts the Supreme Court found that the father was a better person to retain the custody of the child. In the case of Rosy Jacob (Supra) the Supreme Court has held that the children are not mere chattels nor are they mere play things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the consideration of their welfare as human beings so that they may grow up in a normal balanced manner. This factum of the Supreme Court has been followed in several decisions wherein in accordance with the provisions of Section 13 of the Hindu Minority and Guardians Act, 1956, the welfare of the minor had to be the paramount consideration. 10. Now therefore, when coming to the facts of the present case, we find that one of the considerations on which the Trial Court refused to grant custody of the child was that the appellant mother did not, or was not keen to seek legal recourse for custody of the child immediately after separation. This is something that the Trial Court could not have done. From the dates on record, it is evident that it is the case of the appellant mother that she was driven out of the house in August, 2018 and after being so driven out, the husband gave a Talaq notice on 19.11.2018. The appellant therefore, had no choice but to leave matrimonial home. Immediately thereafter, in the year 2018 itself, she filed an application under Section 97 of Cr.P.C. for interim custody. The Trial Court disposed of the application on the statement being made by the respondent that she will be permitted the visitation rights. What we note that after Talaq, she was, because of her Iddat, compelled to stay indoors till February, 2019. Immediately thereafter in the year 2019 in early March, she filed the present application seeking custody of daughter Aayesha who was then aged 4 years. When in interim proceedings, custody was refused to her, the mother was compelled to come to this Court where in First Appeal, an order was passed giving her visitation rights. The First Appellate Court directed the expeditial disposal of the custody proceedings which ultimately so happened in April, 2024. When in interim proceedings, custody was refused to her, the mother was compelled to come to this Court where in First Appeal, an order was passed giving her visitation rights. The First Appellate Court directed the expeditial disposal of the custody proceedings which ultimately so happened in April, 2024. If the custody application took five years to decide that itself can be no ground to oust the appellant as a mother of the child by holding that now that the child was in the father’s custody for several years there was no point in handing over the custody to the mother. The Trial Court appears to have lost sight of keeping motto of “welfare of the child” of utmost consideration. 11. Even if we were ignoring the allegations and counter allegations made by both the parties, it is an admitted position on record that the father of Aayesha is a lawyer staying with his step father. In other words, the father’s mother during the subsistence of marriage has moved out of matrimonial home to stay with the grand step father of daughter Aayesha. The only female member in the house for the girl aged 10 years now is the grand-mother who has moved out of her own matrimonial home to stay with step grand-father of the child. The fact that she is now aged and not fully capable to take care of Aayesha has not been disputed by the counsel for the respondent. It has also come on record that Aayesha’s uncle and aunt have two sons and they during the pendency of the custody application have separated and established a separate home. Apart from the fact that the Family Court in holding that the welfare of the child was secure; that she could sleep well with the father’s mother was a finding which was misconceived. The factor that now his mother is staying in a separate establishment would disqualify the father from retaining the custody of child Aayesha. 12. As compared to this, the appellant is staying with her sister and her mother. In other words, there are three ladies in the house. The factor that now his mother is staying in a separate establishment would disqualify the father from retaining the custody of child Aayesha. 12. As compared to this, the appellant is staying with her sister and her mother. In other words, there are three ladies in the house. We take note of all these special circumstances in light of the fact that Aayesha aged 10 years would soon reach her age of puberty and would require assistance of a female and the mother can be the best natural guardian of such a child who has seen separation of the family. 13. To take this view we are also supported by our interaction with Aayesha on two occasions in the chamber. Aayesha interacted with us in January and on 05.03.2025 during which period by way of an interim arrangement we had given the appellant visitation rights. We found Aayesha to be a very interacting and confident child. We discussed her interests with her. During our interactions she had also drawn cartoon character. When in that interaction we politely asked her about her preference as to whether she would prefer to go with father or her mother, she confidently answered that she would rather feel comfortable to be in mother’s companionship. 14. Without being swayed by this interaction with Aayesha, on the sound understanding of welfare of a child being of paramount consideration and in the circumstances that the mother is staying with her sister and mother more particularly with the child Aayesha soon reaching the age of puberty, we see no reason why we should not allow the application of the mother for custody. The child Aayesha is aged 10 years and therefore, she would be safer in the arms and warmth of a mother who is backed by two females in the family. Accordingly, the order dated 08.04.2024 passed by the Family court at Ahmedabad in CMA No.51 of 2019 is quashed and set aside. The respondent is directed to hand over the custody of minor Aayesha to the appellant forthwith. 15. Mr. Love Modi, learned counsel appearing on behalf of Mr. K.V. Shelat is present through virtual mode. We direct the respondent to see that the custody of minor Aayesha is handed over to the appellant mother during the course of the day. For recording compliance of this order, stand over to 13.03.2025 16. Mr. 15. Mr. Love Modi, learned counsel appearing on behalf of Mr. K.V. Shelat is present through virtual mode. We direct the respondent to see that the custody of minor Aayesha is handed over to the appellant mother during the course of the day. For recording compliance of this order, stand over to 13.03.2025 16. Mr. Amit Tiwari, learned counsel for the appellant to report to this Court at 2.30 p.m. tomorrow whether the custody of the child is handed over to the appellant . 17. Learned counsel for the respective parties are directed to see that the order is complied with. 18. Connected civil application stands disposed of.