The welfare of the child is the paramount consideration in custody disputes, and both parents have rights that must be balanced against the child's best interests.

JUDGMENT

1. This appeal under Sec. 47(a) of the Guardians and Wards Act, 1890 has been filed against the judgment and decree dtd. 8/9/2015 passed in G & W.C.No.15/2014 by the Principal Judge, Family Court, Dakshina Kannada, Mangalore, by which the petition filed by the respondent/husband to appoint him as a guardian and seeking custody of female child Sakeena Muskaan, was partly allowed by allowing the appellant to retain the custody of the minor female child and permitted the respondent to get access to the child by way of visitation rights.

2. Brief facts giving rise to filing of this appeal are that, the marriage of the appellant and respondent was solemnized on 4/11/2001, and out of the wedlock two children viz., Aamil Ayesh Umer and Sakeena Muskaan were born on 18/7/2002 and 8/8/2007 respectively. It is averred that after few years, the relationship between them turned out be sour and the appellant filed the divorce petition on the grounds of desertion and cruelty. Consequently, the I Additional Civil Judge, Mangalore by Judgment and Decree dtd. 23/11/2010 dissolved the marriage between the appellant and the respondent. It is further averred that the son is in the custody of the respondent/husband. The respondent is seeking the custody of the second child viz., Sakeena Muskaan stating that he is capable of maintaining and taking care of his daughter, he has made arrangements to admit her to English medium School and he further claims that the daughter's future is safe in his hands. On the aforesaid grounds, the respondent filed petition to appoint him as guardian and further seeking custody of the minor daughter.

3. The appellant/wife has filed statement of objections opposing the petition. The appellant has not disputed the factum of marriage, dissolution of marriage and that the first child is in the custody of the respondent. It is further averred that the respondent has remarried and staying with another woman after dissolution of marriage with her. The second child being a daughter and the appellant being the natural guardian is entitled to retain the custody. The appellant denied other averments and allegations made in the petition and seeks for dismissal of the petition filed for custody of the child.

4. The Family Court has recorded the evidence of the parties. The appellant examined herself as RW.1 and produced Exs.R1 to R12. The respondent examined himself as PW.1 and produced Exs.P1 to P7. The Family Court based on the evidence adduced by the parties vide judgment dtd. 8/9/2015 partly allowed the petition filed by the respondent. In the aforesaid factual matrix the present appeal has been filed.

5. Learned counsel for the appellant submits that the impugned judgment of the Family Court is contrary to the pleadings and evidence on record. It is submitted that the Family Court has failed to appreciate the fact that the respondent has remarried after getting divorce from the appellant and is staying with another woman, hence, he is not entitled for any visitation rights as directed by the Family Court. It is further submitted that the respondent has not even once visited the appellant's house to see the child and not spent any money on the daughter's well being and education and it is the appellant who is taking care of the daughter by providing education. Hence, the Family Court has erred in granting visitation rights to the respondent-husband. It is also submitted that the minor child is a school going child, does not have any time to meet the respondent and the visitation rights are conferred against her wishes. It is stated that the Family Court has erred in appreciating the evidence on record as the respondent has married twice after obtaining the divorce and allowing the respondent to visit the child would be contrary to the best interest of the child. If the child is allowed to meet the respondent it would affect the health and well being of the child, and therefore seeks to allow the appeal.

6. None for the