JUDGMENT

D.K. JAIN, J.:

1. Leave granted.

2.Whether the father or the mother should have the custody of an almost ten year old male child is the short question which falls for consideration in this appeal.

3. The appellant-mother and respondent-father got married on 18th April, 1996. It was a love marriage against the wishes of the parents. On 28th May, 1998, a boy, namely, Master Satyajeet was born from the wedlock. However, within a short time, the relationship between the spouses came under strain. The appellant, who was employed as a teacher, felt that the respondent had misrepresented to her about his occupational status; he did not have any regular income to support the family; he was addicted to alcohol and smoking and also had contacts with anti-social elements. The appellant, it is claimed, had to support the respondent and his family with the meagre income she earned from her school job and private tuitions. It was alleged that the respondent would force her to keep all her savings in a joint bank account, from which he used to withdraw money. She was subjected to physical violence, due to which, on 16th August, 2001, she was forced to leave her matrimonial home at Allahabad, leaving the infant with the father.

4.On reaching Calcutta, where her parents were living, she filed a suit for divorce against respondent, which was decreed ex-parte on 12th September, 2002. Since no appeal was preferred by the respondent against the said decree, it attained finality.

5.On 5th April, 2003, the appellant moved a petition under Sections 10 and 25 of the Guardians and Wards Act, 1890 read with the provisions of the Hindu Minority and Guardianship Act, 1956 before the Family Court, Allahabad seeking a declaration in her favour to be the lawful guardian of her minor son, Satyajeet and a direction to the respondent to hand over the custody of the child to her.

6.The application was hotly contested by the respondent. Resisting her claim, it was alleged that having left him when he was less than three years of age, the appellant had no emotional bond with the child; after leaving Allahabad, she had not even talked to the minor child over the telephone or enquired about his welfare; being the natural guardian of the child he was capable of and was, in fact, looking after the welfare of the child; the child was studying in a prestigious school at Allahabad for which he was paying a fee of Rs.25,000/- per annum and had also nominated him in his insurance policy. As regards his financial position, it was stated that he owns a house, telephone and a motor car whereas the appellant has no house of her own and is living with her mother and brother in a two-room flat at Calcutta.

7.In support of her contentions, the appellant examined herself as PW-1 and two doctors. On the other hand, the respondent examined himself as DW-1 and two of his neighbours as DW-2 and DW-3. Inter alia, observing that the welfare and interest of the minor is of utmost importance in relation to grant of custody to either of the parents and taking into consideration the evidence adduced by the parties, the Family Court found the respondent to be unfit to act as a guardian of the minor child. The Court felt that the appellant had never neglected her child but had to leave Allahabad to save her life.

8. According to the Family Court, several applications moved by the appellant for interim custody, during the pendency of the custody application, showed that she had affection for her child. The Court observed that the appellant was a highly qualified teacher drawing a salary of Rs.22,000/- per month whereas the respondent was only a private contractor without regular source of income and though the child was studying in a prestigious school in Allahabad, there was lack of constant care and protection of the child in the house of the respondent. Finding the testimony of the appellant and her two witnesses to be credible, the Family Court held that for the welfare of the child