IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.237 of 2010 KAMLESH PURBEY . Versus BABITA DEVI . ----------- 2. 17.5.2010 We have heard learned counsel for the appellant and the respondent. The impugned order dated 9.3.2010 under 26 of the Hindu Marriage Act grants custody of the two minor children aged four and five years respectively to the mother. Learned counsel for the appellant very strongly contended that since the respondent has filed a claim for maintenance in the pending divorce proceeding, it is apparent that she has no means to look after the children. The interest of the minor shall therefore be seriously prejudiced in her care and custody as she has no means to look after them. Additionally, learned counsel also tried to persuade us that the conduct of the respondent from the allegations made in the divorce proceedings do not make it conducive for the custody of the children to be given to her. Counsel for the respondent supported the impugned order to urge that it required no interference being considered and reasoned. The contentions sought to be urged on behalf of the appellant with regard to the allegations against the respondent in the pending divorce proceedings, to our mind 2 are not relevant for the purposes of the present controversy as no such grounds have been demonstrated before us. It shall not be physically, mentally and psychologically conducive for the minor children to be put in custody of the mother. Now that custody of the children has been given to the mother, we expect the appellant to be more responsible in so far as the claim for maintenance is concerned since the relationship of husband and wife is not denied. On the merits of the matter, we find that the minor children were called by the learned Judge in his Chambers when after his satisfaction he has recorded that regard being had to their tender age of four and five years respectively when they were not even going to school, more than clothes and food, it is primarily love and affection of the mother which is required by them. To our mind that reasoning is a complete answer to the issue and no arguments have been addressed before us on this reasoning aspect of the judgment under appeal. To buttress the reasoning arrived at by the family Court, we can do no better than quote from Paragraph 52 of the Supreme Court in the case of Nil Ratan Kundu & Anr. Vs. Abhijit Kundu reported in (2008) 9 SCC 431 as follows:- “52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a 3 minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.” We are, therefore, satisfied that the judgment under appeal is fully considered and reasoned, passed in the best interest of the minor children warranting no interference by us. The appeal is dismissed. P. Kumar (Navin Sinha, J.) (Dinesh Kumar Singh, J.)