The welfare of the minor child is the paramount consideration in determining custody, and the court must give due weight to the child's well-being and preferences if old enough to form an intelligent choice.

N.K. Agarwal, J.

1. This appeal has been filed by the Appellant/non-applicant against the order dated 13-7-2010 passed by the 1st Additional Principal Judge, Family Court, Raipur in Guardian and Wards case No. 7/2010.

2. Facts of the case in brief are as under:

i. On 11-12-1999, marriage of Appellant was solemnized with the Respondent. Out of said wedlock, a female child namely Ku. Shreshtha was born on 15-11-2002. Application filed Under Section 13(B) of the Hindu Marriage Act, 1955 (for short, hereinafter referred to as 'the Act of 1955') for grant of divorce by mutual consent was allowed by the Court of Principle Judge, Family Court, Raipur vide judgment and decree dated 1-2-2008 and the divorce decree was passed. In the above proceedings, it has been contended that the minor female child Ku. Shreshtha will remain in the custody of Respondent herein, i.e. mother. However, the Court did not pass any order regarding custody of the minor child under Section 26 of the Hindu Marriage Act, 1955.

ii. The non-applicant filed an application under Section 25 of Guardians and Wards Act, 1890 (for short, hereinafter referred to as 'the Act of 1890'), for custody of minor child Ku. Shreshtha inter alia stating therein that Ku. Shreshtha was handed over to her when the decree of divorce was passed and since then the child was in her custody. She left her daughter to her father due to summer vacations as she was working in Hyderabad in HSBC Bank. The Appellant brought Ku. Shreshtha with her father's permission for few days to Raijpur without her consent. Thereafter despite several efforts made by her and her father, the custody of Ku. Shreshtha was not given to her, even Appellant did not allow her to meet with the child, also denied her right of guardianship.

iii. The Appellant in his reply to the above application admitted birth of Ku. Shreshtha out of their wedlock on 15-11-2002. However, it has been contended that Respondent's father himself handed over the child to him on 6-7-2008, also executed consent letter in this regard stating therein that in future he and his daughter Meenakshi may meet with the child with the consent of the Appellant. The child is being well maintained by him, also getting his and his parents' love and affection. The child is very happy with them and the application deserves to be dismissed.

iv. Learned trial Court vide order impugned allowed the Respondent's application and directed the Appellant to hand over the child within a period of one month to the Respondent. Hence this appeal.

3. Shri B.P. Sharma, learned Counsel appearing for the Appellant would submit that the Respondent is working and living alone at Hyderabad, whereas minor was living with Appellant at Raurkela. Looking to the nature, place and timings of her job, it was not possible for her to look after and take care of the child. Her parents are also not in a position to maintain and look after the child and due to this, they have handed over custody of minor to the Appellant. The minor being of the age of 7 years and the Appellant being her father, is her natural guardian and the child was in fact in his legal custody through out the period. The Appellant is maintaining the child properly, giving her proper education in a well reputed school of Raipur, providing all the facilities and comfort to help her in her intellectual, cultural and social development in the life, also caring for her physical comfort and moral values. Looking to the overall circumstances, welfare of the child is in keeping her with him. Learned trial Court has seriously erred in allowing Respondent's application. Learned trial Court has passed the order impugned ignoring all the relevant provisions of the Act of 1890 and Hindu Minority and Guardianship Act, 1956 (for short, hereinafter referred to as 'the Act of 1956'). Even the learned trial Court has not made any attempt to obtain preference of the child although the minor is old enough to form her intelligent preference