Point of Law : Custody of minor daughter - Visitation rights - Merely because appellant is natural guardian of his minor daughter, issue of custody cannot automatically be decided in his favour - Welfare of minor is a proposition, which depends on a host of factors - Appellant being father and natural guardian is entitled to visit his daughter.

JUDGMENT :

The following judgment of the Court is delivered by Prashant Kumar Mishra, Acting Chief Justice.

1. In this appeal challenge is to the judgment and decree passed by the Family Court, Rajnandgaon dismissing the appellant’s application under Section 25 of the Guardians and Wards Act, 1890 for custody of his minor daughter namely; Vaishnavi.

2. The appellant was married with Tejeshwari @ Teja Bai (since deceased), daughter of the respondents, on 11-5-2013. Daughter Vaishnavi was born out of the wedlock on 11-9-2014. The naming ceremony (Namakarana Sanskar) of the newly born daughter was scheduled to be held on 17-10-2014, however, the wife of the appellant Tejeshwari committed suicide the day before the function i.e. on 16-10-2014. An offence under Section 306 read with Section 34 of the Indian Penal Code was registered against the appellant and his parents, however, they were acquitted of the charge vide judgment of acquittal dated 16-6-2015 rendered by the Sessions Judge, Rajnandgaon, in ST No.89 of 2014, which is under challenge before this Court ACQA No.178 of 2015.

3. Application was moved on pleadings that the appellant is a Teacher and has 10 acres of agricultural land at Rajnandgaon, therefore, he having sufficient means to raise his daughter and secure a bright future for her and also for the fact that he has not performed second marriage, he is entitled to seek custody of his minor daughter.

4. The respondents (in-laws of the appellant) denied the allegations. According to them, before the appellant’s marriage with their daughter Tejeshwari he threatened that if they were not married, he will not allow Tejeshwari to marry any other boy. Due to this threat, marriage of Tejeshwari was solemnized with the appellant. Soon after the marriage the appellant used to commit physical cruelty, which continued despite knowing that she is carrying pregnancy and he always expressed that he does not want child. Tejeshwari came to her parental house in July, 2014 for appearing in B.Sc. examination; for proper care during pregnancy; and for delivery. During this period the appellant never visited Tejeshwari to enquire about her well being. On 9-10-2014 he forcibly took away the deceased and the newly born daughter. Thereafter, he informed them on 16-10-2014 that Tejeshwari has committed suicide. The appellant used to threaten that he will perform second marriage because Tejeshwari has failed to deliver a baby boy and that he was having an affair with the daughter of Ghanshyam Sahu of village Singabedi. He used to keep photo of that girl with him and used to bring and drop her at Dongargaon BTI. Due to this reason there was always a dispute between the appellant and the deceased. It was also specifically stated in the reply filed by the respondents that during rituals after the death of Tejeshwari, the mother of the appellant namely; Ramshila Sahu handed over the newly born daughter of the appellant to the respondent No.2 by saying that they do not have any person to take care of the child, therefore, respondent No.2 should keep the child with her.

5. Before proceeding to deal with the merits of the case, it would be appropriate to notice the principles which govern decision on dispute concerning custody of child.

6. Reiterating the well settled legal position that while deciding the dispute pertaining to custody of minor, Courts should keep in mind the paramount interest of the minor, the Supreme Court, in Purvi Mukesh Gada v. Mukesh Popatlal Gada and Another, (2017) 8 SCC 819, has held that it was incumbent upon the High Court to find out the welfare of the children before passing the order regarding custody because the welfare of the child is the supreme consideration in such matters.

7. In yet another judgment rendered in Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318 the Supreme Court has held thus :

10. Section 6 of the HMG Act is of seminal importance. It reiterates Section 4 (b) and again clarifies that guardianship covers both