Sunil Dutta Mishra, J. – Heard learned senior counsel for the parties.

2. The present Miscellaneous Appeal has been filed under section 19(1) of the Family Court Act, 1984 against the judgment dated 27.02.2020 passed by learned Principal Judge, Family Court, Sitamarhi in Guardianship Case No. 02 of 2018 whereby and where under the application under Section 25 of Guardians and Wards Act, 1890 for transfer of custody of minor female child from respondents to the appellant has been rejected with certain directions therein.

3. Brief facts of the case are that appellant Bimlesh Kumar and Late Prabha Kumari (daughter of respondents) were married on 17.01.2013. A female child namely Shanvi Yadav was born on 17.02.2015 from their wedlock. Appellant is a Bank Manager in the State Bank of India. In year 2015-16 he was posted at Delhi where deceased (Prabha Kumari) conceived (second pregnancy) in January 2016. For proper care and delivery of her second child she alongwith minor daughter went to her parental home at Muzaffarpur in the month of July, 2016 where she met with an accident in bathroom which resulted in injury causing her death on 08.08.2016. The minor daughter remained with her maternal grandparents (respondents) for her better care. In this backdrop, appellant is stated to have got transfer of his posting from New Delhi to Patna in the month of September, 2016. Thereafter, he married for the second time to Puja Kumari on 18.04.2017. From the second marriage, they have blessed with a son, namely Priyesh Yadav. The girl child from first marriage of the appellant was staying with her maternal grand parents (respondents) at Muzaffarpur and when the appellant went to meet his minor daughter, he was not allowed to meet and talk with her. When the appellant, after several efforts, not succeeded to meet and talk with his minor daughter the appellant filed the petition under Section 25 of Guardians and Wards Act, 1890 for custody of girl child namely Shanvi Yadav.

4. The case of the appellant is that the respondents are old aged who are not capable to look after and to provide good life style to the minor child and they are themselves dependent physically and financially on others. Accordingly, it is in the welfare of minor child to grant her custody to the appellant who is capable to take care in better ways being natural guardian of the minor girl child.

5. The case of respondents is that late Prabha Kumari, the daughter of the respondents, was not living a happy life with appellant and the girl child was born at Bathua Nursing Home at Muzaffarpur in presence of respondent and she was serious during her pregnancy and against the medical advice, she was taken to the house of the respondents by the appellant, thereafter, the appellant returned to Delhi which shows his negligent behaviour towards deceased Prabha Devi and her daughter. The appellant left the minor daughter with the respondents and solemnized his second marriage within one year of the death of his first wife. Respondent No. 1 is a retired Engineer and he receives adequate pension to lead a standard life style and they are capable enough to take care of the minor child and providing her a good quality life.

6. On the basis of the pleadings of both the parties, the following issues were framed on 21.11.2019 by the learned Family Court: –

(i) Whether the suit as filed by the applicant is maintainable or not?

(ii) Does the applicant has the right and cause to bring this suit as the legal guardian of the minor girl? or, Is the claim of the opponent, who claims to be the maternal grandparents of Shanvi, justified in getting the custody of Shanvi to the applicant in the light of the circumstances before and after the death of Shanvi’s mother Prabha Kumari?

(iii) Is it justified to take into consideration the wishes of the minor and her welfare before deciding this case?

(iv) Whether the applicant is entitled to the guardianship and trusteeship of the minor girl child in the light of hi