ORDER : (PER : HONOURABLE MR. JUSTICE A.Y. KOGJE) 1. This appeal under Section 19 of the FAMILY COURTS ACT is filed against judgment and order dated 17.09.2024 passed by the Principal Judge, Family Court, Gandhinagar in Civil Misc.Application No.10 of 2022. By the said impugned judgment and order, the application filed by the respondent-wife was allowed. 2. The Court had issued notice and learned Advocate Mr.V.B.Vaghela has appeared on behalf of the respondent. As considering the nature of issue involved and as the relevant document of the case are already submitted, at the request of both sides, the appeal is taken up for final hearing. 3. The original proceedings before the Family Court were under Section 25 (1) of the Guardians and Wards Act, 1890 for permanent custody of their twin children, viz. Minor Pranay AND Pranjal. The proceedings were filed by the respondent-wife. The Family Court allowed the application and granted custody to wife and visitation to the appellant husband. 4. Learned Advocate for the appellant-husband has argued that the best interest of the minors lies in the husband having custody as he has sufficient financial means to support the children, also the children were going to a very good pre-school and their future is secured in a city like Ahmedabad. 4.1 It is submitted that the appellant has already spent good amount to secure their future by making proper financial investment in insurance policy. 4.2 Learned Advocate for the appellant submitted that the appellant is better positioned to take care of the children as his employment require him only to attend office till 03;00 pm and then he can attend his children and during his office hours, his mother (grand-mother of children) is there to take care, whereas the respondent-wife is staying alone and is working as a lawyer, so she has to rely upon her parents, who are staying at a different place. Also, as per the appellant, the family atmosphere is not proper for upbringing of the children. 4.3 It is further submitted that the respondent-wife, after the impugned order, in highhanded manner, took the custody of the children. 4.4 It is lastly submitted that the respondent-wife has not got financial support and therefore, only she has claimed maintenance on the ground that she is not able to maintain herself. 5. 4.3 It is further submitted that the respondent-wife, after the impugned order, in highhanded manner, took the custody of the children. 4.4 It is lastly submitted that the respondent-wife has not got financial support and therefore, only she has claimed maintenance on the ground that she is not able to maintain herself. 5. Learned Advocate for the respondent-wife has refuted this claim by submitting that the husband has a full time job starting from 06;00 am onwards, therefore, he is completely relying on the grand-mother, who also is aged. 5.1 It is submitted that it is the responsibility of the father to financial support the upbringing of the family. 5.2 It is submitted that the children being minor, the best interest would lie with the mother and that the mother, though a lawyer by profession, is well discoursed to take care of minors. 6. The Court has considered the rival submissions of the parties. The issue that arises is the paramount interest of the minor children, whether the best interest lies in custody with the mother or father. 7. Section 6 of the HINDU MINORITY AND GUARDIANSHIP ACT , 1956 reads as under:- “6. Natural guardians of a Hindu minor.—The natural guardians of a Hindu minor; in respect of the minor's person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are— (a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father; (c) in the case of a married girl—the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section— (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.—In this section, the expressions “father” and “mother” do not include a step-father and a step-mother.” 8. Moreover, the Apex Court in the issue of custody of minor in case of Mausami Mottra Ganguli Vs. Explanation.—In this section, the expressions “father” and “mother” do not include a step-father and a step-mother.” 8. Moreover, the Apex Court in the issue of custody of minor in case of Mausami Mottra Ganguli Vs. Jayanti Ganguli reported in AIR 2008 SC, 2262 in para-14 has held as under:- “14. The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the HINDU MINORITY AND GUARDIANSHIP ACT , 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.” 9. This Court, in case of Rohan Rajesh Kothari thro PoA Rajesh S. Kothari Vs. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.” 9. This Court, in case of Rohan Rajesh Kothari thro PoA Rajesh S. Kothari Vs. State of Gujarat & Ors ., in Special Criminal Application No.12059 of 2023 by judgment and order dated 05.01.2024 has held in paras-11 and 11.1 as under:- “11. The petition therefore, requires this Court to examine following issues (i) whether the custody of minor is illegal with the respondent mother. It is undisputed that both the parents of the child are Hindus and Hindu Laws apply to them. [ 2013 (7) SCC 426 ] Section-6 of HINDU MINORITY AND GUARDIANSHIP ACT , 1956 provide for Natural Guardians of a Hindu Minor according to it custody of minor, who has not completed age of 5 years shall ordinarily be with the mother. The minor here is only 3 years of age moreover, she is a female child. 11.1 In the opinion of the Court, Section-6 of HINDU MINORITY AND GUARDIANSHIP ACT , 1956 not only recognize the right of a Natural Parent to be a guardian, which any of the Parent would be able to establish by way of leading evidence to claim such Right, but more than that it recognizes a ‘Silent Right’ of the Minor to be with the mother till the age of 5 years. Therefore, it cannot be said that the minor is in illegal custody to make out a cause of action to issue the writ of Habeas.” 10. The facts necessary to deal with the case are in the year 2013, the appellant and the respondent came in contact with each other on website, i.e. sadi.com. The appellant was residing at Gandhinagar and the respondent at Ahmedabad. On 12.07.2016, the marriage of the appellant and the respondent was solemnized as per Hindu rites and rituals. In the year 2019, the marriage was not liked by the parents of the appellant. Hence, respondent took house on rent and started residing at Vinzol, Ahmedabad. On 16.01.2020, twin children , viz. Prayag and Pranjal were born. On 08.05.2022, the appellant, along with twin children shifted at Gandhinagar. In the year 2019, the marriage was not liked by the parents of the appellant. Hence, respondent took house on rent and started residing at Vinzol, Ahmedabad. On 16.01.2020, twin children , viz. Prayag and Pranjal were born. On 08.05.2022, the appellant, along with twin children shifted at Gandhinagar. On 13.06.2022, the respondent-wife filed Civil Misc.Application No.10 of 2022 under Section 25 of the Guardians and Wards Act for custody of twins before the Family Court, Gandhinagar. On 17.09.2024, the Family Court, after taking the available evidence on record, partly allowed the application and gave custody to the wife and visitation rights to the husband-appellant. 11. By the impugned judgment and order, the Family Court has directed as under:- “1.1 Considering the age of the children, Prayag and Pranjal, who are currently four and a half years old and to ensure that they do not face inconvenience or distress, the respondent shall be allowed to visit the applicant’s residence every Sunday between 11:00 a.m. and 6:00 p.m. to meet and stay with the minor children. 1.2 The applicant is directed that, once the children commence their education, during Diwali vacation and summer vacation, the custody of the minor children shall be handed over to the respondent for the second half of each vacation period and during such second half, the custody of minor children shall remain with the respondent. 1.3 It is further ordered that the applicant shall, once a week, between Monday and Wednesday, from 7:00 p.m. to 7:30 p.m., facilitate a telephonic and video call conversation between the minor children and the respondent and the applicant shall ensure that the children are made available for the same. 1.4 It is further ordered that if the children’s birthday falls on a Saturday or Sunday, then their custody shall be handed over to the respondent from 10:00 a.m. to 2:00 p.m. and if the applicant also wishes to be present during celebration of the children’s birthday in that period, she may remain present with the respondent and celebrate the birthday with the children from 10:00 a.m. to 2:00 p.m. 1.5 During this entire process, neither party shall behave or cause to behave in a manner that disturbs mutual harmony and peace. Neither party shall act in any way that may hurt the emotions of the minor children.” 12. Neither party shall act in any way that may hurt the emotions of the minor children.” 12. The Family Court has assigned reasons in holding that the best interest of minor child lies in custody with the mother. It is observed that there is no doubt that while the parties were living together with the minor children, both parties had duly fulfilled their parental responsibilities. However, the primary consideration is with whom the welfare and best interest of the minor children presently lie. It has also come on record that the applicant has filed an application under Section 97 seeking custody of the children, which has been rejected by the Court. The applicant has filed the present petition in June 2022, i.e., two years ago. Currently, the twin minor children are four and a half years old. Considering the principles laid down and legal provisions discussed in the above- cited decision of the Hon’ble Supreme Court and taking into account that the children are presently four and a half years of age, the applicant is capable of properly raising the children. Therefore, it is in the best interest of the children that their custody be given to the applicant. Merely because the respondent-father is employed in a good job does not mean that he can provide a better future to the applicant and solely on that ground, it does not appear appropriate to hand over the custody of the minor children to the respondent-father. Further, during his cross-examination, the respondent has stated in his evidence that he has opened a Sukanya Samriddhi PPF account for the daughter and has taken policies for both children, under which he pays an annual premium of Rs.1,00,000 for the son and Rs.50,000 for the daughter. However, no such documentary evidence has been adduced by the respondent. Further, the respondent has submitted that the care of the twin children is taken by his mother. The respondent’s mother is elderly and is suffering from diabetes and compared to her, the applicant, who is mother of the children, is in a better position to take proper care of the twin children. The respondent has also admitted during his cross-examination that two brothers-in-law and his parents-in-law are alive in the applicant’s parental home and under such circumstances too, the applicant, with the help of her family members, is capable of properly looking after the children. The respondent has also admitted during his cross-examination that two brothers-in-law and his parents-in-law are alive in the applicant’s parental home and under such circumstances too, the applicant, with the help of her family members, is capable of properly looking after the children. Hence, it appears appropriate to grant the custody of twin children to the applicant. 13. The Court is of the opinion that The twin minor children are four and a half years old and they require love and affection of their mother. As per legal principles as well, the role of mother is significant in upbringing of minor children. A minor can stay more safely with mother and can also receive better moral values. Further, merely because the mother is uneducated, she cannot be denied custody of a minor. In the present case, the applicant- mother is a practicing advocate, earning an income and is capable of maintaining herself and the minors. Further, one of the two children is a daughter and as she grows older, there will come a stage where she will need a presence of her mother the most. 14. The Court has considered the submissions of the learned Advocate for the appellant regarding the better financial status of the appellant. However, whether husband and wife have decided to stay separately that does not end the appellant- respondent as father and husband to maintain family. Whether the custody is with the father or the mother, the father is obliged to take up the burden, at least, the financial burden to maintain the children, despite the custody not being given to the appellant. 15. For the foregoing reasons, the Court does not find any reason to interfere with the impugned judgment and order. The appeal therefore deserves to be and is hereby dismissed. Notice is discharged. No order as to costs.