Devi Prasad Singh, J.This is an appeal under Section 28 of the Hindu Marriage Act 1955 read with Section 19 of the Family Courts Act 1984 against the judgment and order dated 11.5.2012 passed by Principal Judge, Family Court, Lucknow in Misc Case No.128 of 2010 whereby a suit filed by respondent Vikas Agarwal, the husband of appellant no.1 has been allowed directing the appellant to handover the custody of the child Master Pratham Agarwal to the respondent plaintiff. It is not disputed that a regular suit no. 2252 of 2009 under Section 13 of the Hindu Marriage Act for divorce was filed by the respondent Vikas Agarwal. Suit was decreed by judgement and order dated 11.5.2012. An appeal preferred by the appellant no. 1 has also been dismissed as not pressed. Keeping in view the subsequent development, which has been brought to notice of the court is that appellant Bharti Agarwal married to another person namely Shri Rahul Kailash Gupta and shifted to Maharashtra. It is also not disputed that Master Pratham Agarwal is residing at Allahabad along with his maternal grandfather (Nana) and pursuing his studies.

2. The marriage was solemnized between the parties on 17.1.2000 in pursuance to Hindu rituals. On 20.7.2004 the birth of Pratham Agarwal took place during matrimonial life of the parties. It is brought on record that on account of sour relationship between the husband and wife numbers of cases were instituted in different courts including the application moved by the appellant no. 1 in Mahila Aayog. FIRs were also lodged by either side in different police station. Keeping in view the strained relationship it appears that both husband and wife started to live separately. Allegation has been raised by the plaintiff respondent while preferring the suit in question that defendant no. 1 is not in a position to shower the motherhood to the Pratham Agarwal and has got illicit relationship with other person. She is a lady of disturbed mind and easy virtue is not in a position to meet out the requirement excepted from a mother. Being mentally disturbed lady it shall not be proper to leave the child with her.

3. Principal Judge, Family Court after considering the evidence led by the parties recorded a finding that the appellant no. 1 is residing at Pune and working as dietician whereas respondent Pratham Agarwal is residing at Allahabad in his maternal grandfathers house. Both are living separately. In case, Master Pratham Agarwal is permitted to live with her maternal grandfather he may suffer from adverse consequences with a dark future. A finding has been recorded that maternal grandfather has renounced the world and it is not expected that he will be able to bear the burden of Master Pratham Agarwal for whole of the life or up to the age of majority. Keeping in view the difference of age of maternal grandfather, who is aged about 66 years and subsequent development with regard to marriage of appellant no. 1 with a person residing at Pune, Maharashtra, it shall not be proper to leave the child with appellant no. 1. The appellant no. 1 as well as respondent plaintiff are residing separately since almost a decade and the appellant no. 1 is not in a position to bear the expenses of Master Pratham Agarwal.

4. In an application filed under Section 125 CrPC maintenance has been awarded by the court below and even during the course of proceedings not only for maintenance but appellant no. 1 moved an application asking for Rs. 10,000/ to provide medical aid to Master Pratham Agarwal.

5. It is not disputed that Master Pratham Agarwal while residing at Lucknow studied up to Class I and he is now aged about 9 years. The mother Bharti Agarwal (appellant no. 1) married to one Shri Rahul Kailash Gupta happens to be Manager in ICICI Bank. The second marriage of appellant no. 1 was solemnized on 14.6.2012. During the course of hearing we have been informed that from the second marriage the appellant no. 1 has given birth to another child (female child) who is now aged about two months. The appellant no. 1 had not pressed the appeal filed against the decree of divorce on 28.5.2012. That too seems to be after solemnization of marriage with one Shri Rahul Kailash Gupta. It is important to note that suit was decreed by the family court on the ground of cruelty on the part of appellant no. 1. On account of dismissal of appeal being not pressed the ground for divorce attains finality.

6. It appears that while decreeing the suit for divorce and allowing the custody of child Master Pratham Agarwal the court below took note of the fact that appellant Bharti Agarwal has been working as dietician at Pune and most of the time she spent at Pune along with her fianc keeping the child Pratham Agarwal with the maternal grandfather Shri Om Prakash Agarwal (Nana). Shri Om Prakash Agarwal stated to be aged about 66 years and renounced the world. However, he is the Member of Joint Family engaged in business at Allahabad.

7. Shri Sharad Dwivedi learned counsel while arguing on behalf of the appellant stated that the maternal grand father is competent enough to serve the child and if necessary, appellant no. 1 may take him to Pune.

8. Nothing has been brought on record that husband of appellant no. 1 Shri Rahul Kailash Gupta is also interested to keep the child namely Master Pratham Agarwal at Pune.

9. On the other hand, though Shri Sharad Dwivedi stated that respondents Vikas Agarwal is not sound mind. But it is stated by the respondents and statement was given by his father that respondent husband is getting rent of Rs. 36,000 per month and he is a partner in Plywood factory situated at Chinhat, Lucknow. There is another shop at Lucknow in River Bank Colony. It is further submitted by the respondents that Shri Vikas Agarwal has one another brother Shri Naveen Agarwal who have two daughters. In the absence of any son to brother of respondent Vikas Agarwal, Master Pratham Agarwal shall be only son in the family of two brothers who is likely to inherit substantial property.

10. While considering the question with regard to conduct of appellant no. 1 which we would like to take note of the fact that during the course of argument it has been stated by the Shri Sharad Dwivedi that four cases are pending between the parties with regard to property. There is one criminal case under Section 498 A of the Indian Penal Code. In the said case, Examination in Chief was recorded on 21.7.2012. The case was adjourned for cross examination by the Special Judicial Magistrate, Lucknow. Information was given to trial court as well as this court that appellant no. 1 Bharti Agarwal is missing. A doubt was expressed that she could have been kidnapped by the respondent husband. The order sheet dated 8.8.2012 speaks volume. For convenience, order dated 8.8.2012 recorded by this Court is reproduced as under:

"We have heard Shri D.P.Dwivedi, learned counsel for the appellant and Shri Lalit Kishan Pandey, learned counsel for the respondents.

The present appeal has been preferred against the impugned order passed by the Family Court to the proceeding under Section 26 of the Hindu Marriage Act.

On 19.7.2012, we have directed the parties to appear in person so that controversy may be referred to the Mediation Center, Lucknow.

On 1.8.2012, when the case was taken up, we were informed by Shri Dwivedi learned counsel for the appellant that from 22.7.2012 the appellant is missing from Lucknow and an FIR was lodged on 26.7.2012 in Police Station Qaiserbagh.

According to the appellants counsel, in a pending case under Section 498 A/323/504/506 of the IPC in the court of Special Chief Judicial Magistrate, Lucknow, appellant appeared on 21.7.2012 and examination in chief was recorded. Case was adjourned by the Special Chief Judicial Magistrate for cross examination. However, the appellant could not appear before the trial court as well as this court and is missing since then.

The father of the appellant, Shri Om Prakash Agarwal, who is present in court, informed that after appearing as witness the appellant on mobile phone had informed in the night that she shall proceeded to meet her father at Allahabad by train. This fact has been verified by the Investigating Officer from the call detail.

However, appellant could not reach Allahabad in terms of conversation with her father, hence, in consequence thereof, the police was informed.

Shri V.P. Singh, Investigating Officer is present in Court. We have also perused the case diary and statement has been made by the Investigating Officer that whereabouts of the appellant is not known in spite of several efforts made by the Investigating Officer. He wants further time to investigate the controversy.

As prayed by Investigating Officer, a week further time is allowed. He shall submit a report to this Court within one week and shall also appear in person alongwith case diary.

Records from the court of Special Chief Judicial Magistrate shall also be summoned by the registry through special messenger and produced before this court.

List on 22.8.2012 for further hearing.

All further proceedings between the parties on civil or criminal side in different courts, shall remain suspended till further orders of this court".

11. From the perusal of aforesaid ordersheet it appears that appellant no. 1 escaped from court proceeding and also gone to unknown place without informing her whereabouts to her own father Shri O.P.Agarwal, hence matter was referred to police to investigate and submit report. Ultimately, appellant no. 1 was traced out and found by police at Pune. Recovery of appellant no. 1 has been recorded in the order sheet on 19.9.2012, which for convenience is reproduced as under:

"1. In pursuance to earlier orders passed by this Court, Shri Vijay Prakash Singh, Inspector Incharge, Qaiserbagh Kotwali, Lucknow is present in person alongwith Ms. Bharti Agarwal, appellant. He submits that the police has found Ms. Bharti Agarwal residing with a person namely Shri Rahul Kailash Gupta in Bhandara District Akola, Maharashtra. Shri Rahul Kailash Gupta is a Manager in ICICI Bank and resides in Tamsal.

2. Ms. Bharati Agarwal, who is present in person said to be aged about 30 years. She is major.Hence, she is set free to go to his place. However, in case there is any threat to her life, the police shall escort her to the place where she resides. It is stated by Inspector Incharge that Ms. Bharti Agarwal has gone to Maharashtra to reside with her friend on her own sweet will being fed up with the court cases and certain other domestic problems. Let an affidavit be filed by Inspector Incharge within a week with regard to recovery of Ms. Bharti Agarwal.

Ms. Bharti Agarwal says that she wants to go alongwith her father Shri Om Prakash Agarwal, who is present in person. Ms. Bharti Agarwal be set on liberty to go alongwith her father Shri Om Prakash Agarwal in accordance to her wishes. Ms. Bharti Agarwal made a statement that she does not want to reside with her husband.

3. Shri Vikash Agarwal, the husband of the appellant is also present. He also submits that he is not interested for any compromise and do not intend to reside with the appellant.

4. We appreciate the work done by Inspector Incharge Shri Vijay Prakash Singh. with regard to recovery of Ms. Bharti Agarwal from remote area of Maharashtra State and producing her before this Court. He deserves special entry and commendations in this regard.

5.On behalf of respondents, Shri Lalit Kishore Pandey learned counsel submits that an FIR has been lodged of kidnapping in which they are being harassed by the Police. We do not find any reason on the part of police to harass the respondent because of the lodging of the FIR under the changed factual matrix, which has been brought on record and came to light. The police shall take into account the factual position with regard to recovery of girl by Inspector Incharge Police Station Qaiserbagh Kotwali, Lucknow while proceeding with the criminal case lodged against the respondents.

6. Appeal may be heard finally on the next date of listing.

7. List in the second week of October alongwith First Appeal No. 55 of 2012."

12. Even on 19.9.2012 when appellant no. 1 Bharti Agarwal was produced before the court she has not informed that she got married with Shri Rahuk Kailash Gupta. In case, she was fair enough then she should have inform the court and her father on the date of appearance. It appears that she had gone to her fianc house (now second husband) on her own sweatwill without informing her father.

13. Keeping in view the aforesaid factual matrix on record the appellant no. 1 seems to have relationship with Shri Rahul Kailash Gupta during her matrimonial life and in consequence thereof she was ill treating her own husband. There may be other reasons also noted by the court while decreeing suit of divorce filed by the respondent no. 1.

14. In pursuance to order passed by this Court respondent plaintiff and his father Shri Murari Lal Agarwal has shown eagerness to keep Master Pratham Agarwal with them and give proper education, love and affection. They have also deposited an amount of Rs. 25,00000/ (Twenty five lacs) in this Court in pursuance to order passed. It is also stated that Master Pratham Agarwal is the heir and successor of plaintiff respondent. We have also given opportunity to appellant to make deposit alike amount but they have been failed to do so.

15. Custody of minor child is a tricky issue. Courts have to see not only the capability, intention and financial viability but heavy duty cast upon the court bearing in mind the welfare of child as the paramount considerations. Immature mind like the child in question may not be able to take a decision keeping in view the future prospect, hence, while considering the welfare of child, the moral and ethical welfare of the child must also be weight by the court as well as physical wellbeing. The child cannot be treated as a property or a commodity but should be handled by the court with great care and caution, with love, affection and sentiments applying human touch to the problem. The only consideration for the court should be the welfare of child.

16. In 1982(2) SCC 544, Thrity Hoshie Dolikuka Vs. Hoshian Shavaksha Dolikuka, their Lordship held that matter concerning the minor, has to be considered and decided only from the point of view of the welfare and interest of the minor and protect his interest.

17. In 2002 (9) SCC 745, Sumedha Nagpal Vs. State of Delhi while interpreting the provision contained in Section 6(a) of the Guardians and Wards Act, their Lordship of Honble Supreme court held that it shall not militate against the welfare of the minor child is of primary consideration. Allegation and counter allegation made by the parties narrating circumstances as to how the estrangement took place and how each one of them is entitled to the custody of the child may be relevant circumstances but not be final ground on which the fate of the child is to be decided. It is the welfare of minor child keeping in view a case is to be decided and not the question raised by parties based on interpretative law.

18. In 2001 (8) SCC 5 [LQ/SC/2001/2125] , Bimlendu Kumar Chatterjee Vs. Dipa Chatterjee, their lordship held that humanitarian approach is necessary for solving problem in the matter of a child.

19. In 2004 (2) SCC 688 [LQ/SC/2004/136] , Kumar V. Jahgirdar Vs. Chethana Ramatheertha, Honble Supreme Court held that paramount consideration of best safeguarding is interest of child with liberty to other side conferring right of visitation.

20. In 2006 (3) SCC 62 [LQ/SC/2006/134] , Sheila B.Das Vs. P.R. Sugasree, Honble Supreme court had given the custody of child to father in pursuance to personal interview as well as financial stability.

21. In 2006 (13) SCC 555 [LQ/SC/2006/1133] , Lekha Vs. P. Anil Kumar, the custody granted by trial court on the basis of recorded interview was reversed by Honble Supreme Court and given the custody of child to the mother.

22. In 2008 (7) SCC 678, Mausami Moitra Ganguli Vs. Jayant Ganguli, their Lordship held 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. Under statute on the subject can ignore eschew or obliterate the vital factor of the welfare of the minor. Each case has to be decided on its own facts. Better financial resources of either of the parents on their love for the child may be one of the relevant considerations but shall not be 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 child as paramount consideration.

23. In 2008 (9) SCC 413 [LQ/SC/2008/1634] , Nil Ratan Kundu Vs. Abhijit Kundu, their Lordship held that custody of child is a human problem and is required to be solved with human touch. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a childs ordinary comfort, contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, moral and ethical values cannot be ignored. Their lordship further held that it is not the negative test that father is not unfit or disqualified to have custody of his son and daughter that is relevant but the positive test that such custody would be in welfare of minor which is material and it is on that basis that the court should exercise the power to grant or refuse custody of a minor in favour of the father, the mother or any other guardian.

24. In 2010 (2) SCC 654 [LQ/SC/2010/8] , Athar Hussain Vs. Syed Siraj Ahmed their Lordship of Honble Supreme Court held that father may continue to be the natural guardian of the children. However, the considerations pertaining to the welfare of the child may indicate lawful custody with another friend or relative as serving his or her interest better.

25. In 2009 (1) SCC 42 [LQ/SC/2008/2333] , Gaurav Nagpal Vs. Sumedha Nagpal, their lordship held that the word "welfare" used in Section 13 of the Act should be taken in its widest sense. The moral and ethical welfare of child must also weigh within the court as well as its physical wellbeing. It is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.

26. The aforesaid proposition has been reiterated by Honble Supreme Court in the case of 2010 (4) SCC 409 [LQ/SC/2010/311] , Vikram Vir Vohra Vs. Shalini Bhalla, 2010 (14) SCC 274 [LQ/SC/2010/1312] , Ashish Ranjan Vs. Anupma Tandon, 2012 (12) SCC 478 [LQ/SC/2011/1571] , Gaytri Bajaj Vs. Jiten Bhalla, 2012 (5) SCC 355 [LQ/SC/2012/447] , Shaleen Kabra Vs. Shiwani Kabra and 2012 (12) SCC 471 [LQ/SC/2012/901] , Gaytri Bajaj Vs. Jiten Bhalla and 2012 (5) SCC 355 [LQ/SC/2012/447] , Shaleen Kabra Vs. Shiwani Kabra.

27. How the paramount interest of child is to be looked into coupled with moral and ethical consideration is the task on the part of the Court, which may differ from case to case. During pendency of present case the appellant no. 1 got married to one another person namely Shri Rahul Kailash Gupta and residing at Pune, Maharashtra. Even before solemnisation of second marriage and during the course of illicit relationship, from the evidence on record it appears that she was ordinarily living at Pune and working as Dietician. Most of the time she was spending at Pune. Child Master Pratham Agarwas has been residing at Allahbad with maternal grant father who had renounced the world. Though there appears to be no slackness on the part of the maternal grandfather (Nana) in educating the child but fact remains that there is no surety of life whether he will be able to meet out the requirement of almost a decade to provide better schooling coupled with costly higher education in this country, is not borne out from the record. Affection and love showered by maternal grant father is not questioned but so far as the appellant no. 1 is concerned, she had married again and shifted to Pune and residing with her husband, who had not come forward by filing an affidavit showing his willingness to keep the child with him. Master Pratham Agrawal never resided with them at Pune. In such circumstances, it shall be a very hard decision to hand over the custody of child to appellant no. 1.

28. Nothing has been brought on record to show as to how and under what manner the appellant shall meet out the requirement necessary to serve the child with financial availability and how they will meet the expenses of the education of respondent Master Pratham Agarwal, while living at Pune.

29. It is also not borne out from the record as to how the appellant shall bless with love and affection Master Pratham Agarwal along with her second husband. On the other hand, affidavit has been filed by the respondent plaintiff as well as his father Shri Murari Lal Agarwal that they will bear all the expenses of Master Pratham Agarwal and as a measure of surety Rs. 25,00000/(Twenty five lacs) has been deposited in this court. It has been stated by the respondents/plaintiff that his father has got good business at Lucknow and there is no other persons except Master Pratham Agarwal who shall inherent the property.

30. Shri Sharad Dwivedi learned counsel appearing for the appellant has asserted that only because appellant no. 1 married for the second time and has got a child she cannot be deprived from the custody of her own child. It shall be appropriate to consider the cases relied upon by him.

31. AIR 2004 SC 1525 [LQ/SC/2004/136] , Kumar V. Jahgirdar Vs. Chethana Ramatheertha, their Lordship held that remarriage shall not disqualify the mother to have custody of child since the child require the company of mother.

32. In the case of KumarV. Jahgirdar (supra) the child in custody was girl namely Aaruni. She was born on 7.12.1994 and marriage broke down in the year 1998. Dissolution of marriage was with mutual consent on 17.4.1999. The child was in possession of mother in pursuance to mutual agreement between the parties during the course of separation. The custody of child in terms of mutual settlement was periodical. She was to remain in the custody of husband and wife alternatively for a week. It was after separation the second marriage of the mother took place with the cricketer Anil Kumble on 1.7.1999. It appears that the mother filed an application seeking exclusive custody of the child, which was rejected by the family court and High court. When the matter came to Honble Supreme Court their Lordship held that merely because there was second marriage of the wife shall not entitled the husband to seek custody of child.

33. Fact and circumstances of the present case is entirely different then the case of Kumar V. Jahgirdar and seems to be not applicable. Here, in the present case, divorce was decreed on account of cruelty on the part of mother. She was living with her fianc even during matrimonial life and later on married with the second husband. Even she escaped from court proceedings without informing her own father (supra).

34. Another case relied upon by the appellants counsel is reported in (2006) 13 SCC 555 [LQ/SC/2006/1133] , Lekha Vs. P. Anil Kumar. In the case of Lekha again their Lordship held that remarriage of mother shall not affect her right to claim custody of child. The wishes of the child coupled with welfare should be looked into.

35. In the case of Lekha (supra) the age of child was 11 years. Their lordship had took interview of the child and minor stated before the court it will better to allow him to stay with mother for better education as she will teach properly. The child stated that appellant mother treating him and new born baby with same love and affection and there shall not be discriminatory treatment. For the welfare of child Honble Supreme Court held that the custody should be handed over to mother. But in the present case, child is living with maternal grand father and never lived at Pune.

36. In one another case relied upon by the appellants counsel is reported in AIR 2008 SC 2262 [LQ/SC/2008/1181 ;] ">AIR 2008 SC 2262 [LQ/SC/2008/1181 ;] [LQ/SC/2008/1181 ;] ">AIR 2008 SC 2262 [LQ/SC/2008/1181 ;] ">AIR 2008 SC 2262 [LQ/SC/2008/1181 ;] [LQ/SC/2008/1181 ;] [LQ/SC/2008/1181 ;] , Mausami Moitra Ganguli Vs. Jayanti Ganguli. In the case of Mausami Moitra Ganguli (supra) the age of child was less than three years and mother was possessing good financial resources and staying all alone at another place hence their Lordship held that the custody of child may be given to mother.

37. The judgements relied upon by the learned counsel for the appellant do not seem to be fit into the facts and circumstances of the present case where child is not residing with the mother and second husband at Pune and they do not have effective attachment to each other. This apart, the conduct of the mother also does not seem to be up to mark (supra) which may make out a case for handing over the custody of child to her. The Court should not place a reliance upon a decision without discussing as to how the factual situation fits in with a fact situation of the decision on which reliance is placed and it has to be ascertained by analysing all material facts and issues involved in the case and argued on both sides. The judgment has to be read with reference to and in context with a particular statutory provisions interpreted by the Court as the Court has to examine as to what principle of law has been decided and the decision cannot be relied upon in support of the proposition that it did not decide vide, H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur & others. Vs. Union of India, AIR 1971 SC 530 [LQ/SC/1970/480 ;] ">AIR 1971 SC 530 [LQ/SC/1970/480 ;] [LQ/SC/1970/480 ;] ">AIR 1971 SC 530 [LQ/SC/1970/480 ;] ">AIR 1971 SC 530 [LQ/SC/1970/480 ;] [LQ/SC/1970/480 ;] [LQ/SC/1970/480 ;] ; M/s. Amar Nath Om Parkash & others. Vs. State of Punjab & others AIR 1985 SC 218 [LQ/SC/1984/313] ; Rajpur Ruda Meha & others Vs. State of Gurajat, AIR 1980 SC 1707 [LQ/SC/1979/486] ; C.I.T. Vs. Sun Engineering Works (P) Ltd., (1992) 4 SCC 363 [LQ/SC/1992/634] ; Sarv Shramik Sangh, Bombay Vs. Indian Hume Pipe Co. Ltd. & Anr., (1993) 2 SCC 386 [LQ/SC/1993/129] ; Haryana Financial Corporation & Anr. Vs. M/s. Jagdamba Oil Mills & Anr., AIR 2002 SC 834 [LQ/SC/2002/133] ; Mehboob Dawod Shaikh Vs. State of Maharastra, (2004) 2 SCC 362 [LQ/SC/2004/67] ; ICICI Bank & Anr. Vs. Municipal Corporation of Greater Bombay & others: AIR 2005 SC 3315 [LQ/SC/2005/758] ; M/s. Makhija Construction and Enggr. Pvt. Ltd. Vs. Indore Development Authority & others: AIR 2005 SC 2499 [LQ/SC/2005/515] ; and ShinEtsu Chemical Co. Ltd. Vs. Aksh Optifibre Ltd. & Anr.: (2005) 7 SCC 234 [LQ/SC/2005/808] .

38. Keeping in view the welfare of child the aforesaid cases should be considered. In the present case, Master Pratham Agarwal studied at Lucknow up to Class I. Latter on during the pendency of litigation he remain with his maternal Grand father (Nana) at Allahabad. During the course of interview Master Pratham Agarwal expressed his willingness to live with maternal grandfather at Allahabad. At no stage he seems to be made acquainted with the changing factual situation where appellant no. 1 married to another person and now from her second wedlock the second a child took birth and she is residing at Pune with the second husband. In the absence of overall acquaintance with the ground realities if in view of wishes of Master Pratham Agarwal he is permitted to reside at Allahabad with maternal grandfather or at later stage with the mother, we feel that his future may not be secured. Maternal Grand father (Nana) has got own family having son and grandson/grand daughter. During his life time Master Pratham Agarwal may be accommodated but no one knows with regard to span of life or how the things will change in due course of time. Conduct of the appellant during the course of present proceeding has been noted in the preceding paras, which seems to be not justified.

39. In such circumstances, we feel that the custody of Master Pratham Agarwal should be handed over to respondents father and judgement of the family court should be affirmed.

40. While parting with the judgement, we wish to quote a couplet of poem by English novelist, biographer and critic, Margaret Drabble from the novel as under:

"Lord knows what incommunicable small terrors infants go through, unknown to all. We disregard them, we say they forget, because they have not the words to make us remember.........By the time they learn to speak they have forgotten the details of their complaints, and so we never know. They forget so quickly we say, because we cannot contemplate the fact that they never forget."

41. The journey of life never stop. It goes on with changing pattern circumstances and necessities coming in the way. Emotions, attachment, love and affection are beauties of life but simultaneously, for survival, requisite financial assistance is the other facet of life. Education has become business increasing the cost of education manifold. Even fees in government institutions are too high and beyond reach of common citizen. In such scenario, life is not a cakewalk which may travel without flaw merely on love and compassion. Life always moves on, it never stop right from childhood to old age but how it peacefully passes on is based on variety of factors. In case, financial strength along with love and compassion are made available simultaneously then further prospect of child shall seems to be more secured, which appears to be available in the family of plaintiff respondents.

42. It shall be appropriate to quote few couplet of famous Indian shayar Iqbal in its English translation, to quote:

"The caravan of life knows no stop, as every moment, existence reveals itself anew. Your deem life a mystery, Oh! life is nothing but an appetite for flight. It had seen many ups and downs. It likes incessant movement much better than the destination. Movement (or travel) is for it the only baggage. For it, travel is real, all else unreal. It exalts in facing and resolving new complications. It reveals in incessant writhing and turmoil. When faced with death, it was much too difficult to contain it. Landing itself in the world of causation, it lay in ambush to conquer death. Infatuated with multiplying itself, it took shape into pairs, and stormed the hills and the planes like armies. Flowers kept on falling from the bough, and yet blossom from the same bough. The uninitiated deem it ephemeral, but the mark of life reemerges after it is effaced."

43. In view of above, while reaffirming the judgement of family court, we further modify it and direct as under:

(1)Let the custody of child Master Pratham Agrawal be handedover to respondents within two weeks from today to avoid loss in eduation. Senior Superintendent of Police Lucknow, Senior Superintendent of Police, Allahabad shall provide all assistance, if necessary.

(2)The amount of Rs. 25,00000/ (Twenty five lacs) deposited in this court shall be deposited in a interest bearing account in a Nationalised Bank in the name of Master Pratham Agarwal, under the patroness of District Judge, Lucknow. The amount shall be released in favour of Master Pratham Agarwal whenever he attains the age of 21 years.

(3)Regular expenses of his schooling, fooding, lodging etc. shall be borne by the plaintiff respondent and his father. His welfare shall be communicated to District Judge, Lucknow in the first week of every month till attains majority. District Judge, Lucknow shall submit a report to this court, keeping in view the welfare of child periodically at the interval of three months.

(4)Maternal Grandfather (Nana) as well as mother will have right to visit and see Master Pratham Agarwal on every second Sunday of the month for about three hours for the period of five years.

44. The amount of Rs. 25,00000/ (Twenty Five Lacs) be remitted to District Judge, Lucknow immediately for compliance of order.

We hope and expect that the schools or colleges, whom the respondent plaintiff approach for admission of Master Pratham Agrawal, shall consider sympathetically for admission in appropriate class to pursue further education.

45. Subject to aforesaid direction and modification of the order passed by the family court, we decide the present appeal finally. Let the record be sent back to Family Court.

No order as to costs.