In the High Court of Punjab and Haryana at Chandigarh ...... F.A.O. No.2900 of 2010 ..... Date of decision:25.8.2011 Raghbir Singh .....Appellant v. Sunita and others .....Respondents .... CORAM : HON'BLE MR. JUSTICE MOHINDER PAL ..... 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? ...... Present: Mr. R.S. Tacoria, Advocate for the appellant. Mr. Vikram Awasthy, Advocate for respondents No.1 and 2. ..... Mohinder Pal, J. The appellant has preferred this appeal against the judgment dated 4.11.2009 passed by the learned Civil Judge (Senior Division), Kurukshetra, whereby the petition filed by appellant Raghbir Singh under the Guardian and Wards Act, 1890 (for short - `the Act') and the Hindu Minority and Guardianship Act, 1956 for custody of the minors Prerna and Ritik was dismissed. The minors are grand-daughter and grand-son of the appellant and were born on 3.8.1996 and 29.3.2000 respectively out of the wedlock between respondent No.1-Sunita and Singh Karam (respondent No.3) son of the appellant. F.A.O. No.2900 of 2010 [2] As per facts of this case, Sunita was married to Karam Singh (respondent No.3) son of the appellant on 2.4.1995 at Village Palwal, Tehsil Thanesar, District Kurukshetra. Respondent No.3 is working in Italy for the last more than nine years. A minor daughter, namely, Prerna was born on 13.8.1996 and minor son, namely, Ritik was born on 29.3.2000 to her from this wedlock. She has no adverse interest against her daughter and son and was competent to look after the minors and had sufficient means to maintain them. After her husband left for Italy, the appellant and his family members turned her out of the matrimonial home. As matrimonial disputes arose between the parties, she obtained ex parte divorce from her husband (respondent No.3), as he neither appeared nor represented by any body before the learned District Judge in the divorce proceedings. Thereafter, she contracted second marriage with Dev Raj alias Devi Lal of Village Gamri Jattan (Bachgawan), Tehsil Thanesar, District Kurukshetra. In spite of her second marriage with Devi Lal, all the needs and facilities of minors are being satisfactorily fulfilled without fail by respondent No.1, as they are living with her from their birth and never stayed with the appellant or with his family members. I have heard learned counsel for the parties and have gone through the records of this case. While arguing before me, the learned counsel for the appellant has submitted that the grand-parents are competent to take custody of the children and are in a better position for their upbringing. It is further submitted that the appellant has 15 acres of agricultural land and he is having sound financial position and is in a better position to meet with F.A.O. No.2900 of 2010 [3] every need of the children including better education and better living conditions. It was the respondent No.1, who has left the matrimonial home without any reasonable excuse after the son of the appellant (respondent No.3) has gone abroad for work and she contracted second marriage with Devi Lal after taking ex parte divorce from respondent No.3. Respondent No.1 is not in a position to look after the minor children as she has contracted second marriage and is not having good financial position as her second husband is a casual labourer and he is having no property. It is further submitted that Devi Lal, second husband of respondent No.1 is a drunkard and he has no source of income. The grand-children of the appellant are not studying in any good school and are living a miserable life. On the other hand, learned counsel for respondents No.1 and 2 has argued that the appellant has filed this appeal in order to grab the property of the minor children as he has not provided any financial help to the minor children as well as to respondent No.1 for the last more than nine years. The appellant has 15 acres of agricultural land and he is also receiving money from his son from abroad, but he never cared to provide financial help to the minor children for their education or other needs. It is further submitted that respondent No.1 has sufficient means and is in a better position to take care of the children as she is taking care of her children from their birth and meeting their all needs. It is also submitted that before the trial Court, Prerna (daughter) has got recorded her statement and stated that she and her brother did not want to stay with their grand- father (appellant) and they want to live with their mother only. I have given my thoughtful consideration to the submissions of F.A.O. No.2900 of 2010 [4] both the sides. The trial Court while taking into account the facts and circumstances of the case dismissed the petition while holding that the wishes of the minor children could not be ignored, who were not willing to part company with their mother with whom they are living ever since their birth. It is observed that their grand-father and his family members are strangers to them because the minors have never lived with them. If the children are taken away from the guardianship of their mother and their custody is entrusted to their grand-parents, it would adversely affect them emotionally and psychologically. They have no complaint against their mother as she is looking after them very well. It is further observed that children being of tender age, they require not only love and care but also constant vigil which can only be given by the mother alone. It is further observed that the appellant has 15 acres of agricultural land and is having good financial position but he never rendered any financial help to the children or to their mother. During the pendency of the petition, this Court on 14.3.2011 passed the following order:- “After hearing counsel for both the parties, I am of the opinion that the mother-respondent No.1-Sunita is certainly be natural guardian having a preferential right to keep their custody but the fact that the petitioner is grand-father owning a lot of property in District Kurukshetra, is willing to look after the minors; respondent Sunita allegedly staying with Devi Lal, respondent No.2; the right of the appellant to claim custody or to exercise any other legal rights, his intention to maintain the F.A.O. No.2900 of 2010 [5] minors or to part with some property in their favour appear to be relevant considerations to examine the bona fide of the appellant, for the welfare of the minors. Appellant to come out with any offer to part with some money/property in favour of the minors. Adjourned to April 25, 2011. Counsel for the respondent will also seek instructions if some relief in the shape of visiting rights could be given to the appellant taking into consideration the offer.” On 25.4.2011, this Court passed the following order:- “Appellant has offered that his son is ready to take the children to Italy for their better future and welfare. Parties are directed to appear in person on next date of hearing. Adjourned to 13.5.2011. Be put up at 2 O’clock.” Today, both the parties were present in Court and learned counsel for the appellant submitted that the appellant, who is the paternal grand father of the children be given visiting rights to meet the children, whose custody is with mother. The mother and the children said that they have no objection in case the paternal grand father comes to meet the children on Saturday and Sunday. In view of the above the visiting rights can be granted to the appellant. The mother of the children is still alive and she is in a position to look after them and provide them better education. F.A.O. No.2900 of 2010 [6] There can be no two views about the fact that the mother can be the best guardian to look after the welfare of her children. In the case of custody of minor, the welfare of the child is of paramount consideration. Keeping in view the age of the children, mother will be the best person to up-bring and keep the children in a better atmosphere. A mother always has to think twice, once for herself and once for her child. The tie which links mother and child is of such pure and immaculate strength as to never weaken. Home for a child is that where her mother lives. There is no law which can deprive the child from the love and affection of his/her mother. Taking into consideration all the facts and circumstances of the case and the fact that the paramount consideration with regard to the custody of the minor children is their welfare, it is in the best interest of the minor children that their custody is allowed to remain with their mother. I do not find any reason to hand over custody of minor children to the grand-father. However, the grand-parents are free to meet the children on Saturday and Sunday. They are also free to provide them financial assistance to meet their requirements. Keeping in view the above facts and circumstances, this appeal stands disposed of. August 25, 2011. (Mohinder Pal) Judge *hsp*