JUDGMENT :

Goutam Bhaduri, J.

1. Heard.

2. The present appeal is filed by the father/husband against the order dated 17.12.2018 passed by the family Court, Durg in Civil MJC No.2/17, whereby the custody of the child-respondent No.2, claimed by the father was denied except the visitation right.

3. The facts of this case are that the appellant Nimish S. Agrawal and respondent No.1 Ruhi Agrawal were married on 16.01.2007 and out of the wedlock one child Ku. Nirvana Nimish Rai was born on 12.01.2012. Subsequently, the relation in between the husband and wife entered into rough weather and blame game started. Series of FIRs and counter allegations were made against each other and they started living separately followed by different litigation. Since child was in the custody of the mother/respondent No.1 an application under Section 25 of the Guardians and Wards Act, 1890 was filed. The voluminous evidence were produced by both the parties before the Family Court wherein both the parties claimed that the welfare of the child would be in custody of each individually i.e. the father/husband for himself and mother for herself and on different aspect led voluminous evidence. The learned Family Court, after the trial, ordered that the custody of the child would be with the mother. Hence this appeal.

4. Shri R.P. Agrawal, learned senior counsel along with Shri Manoj Paranjpe, learned counsel for the appellant would submit that the learned family Court failed to take into account to consider the conduct of the mother to come to a finding that it would be in the welfare and the interest of the child to be in custody of father. Referring to the provisions of Sections 2 & 6 of the Hindu Minority and Guardianship Act, 1956 he would submit that as per Section 6 of the Act, 1956 the natural guardian of Hindu first would be father and thereafter mother. He would further submit that ordinarily uptill the age of 5 years, the custody can be given to the mother but beyond that it would be the father who would be entitled. Further referring to Section 13 of the Act, 1956, he would submit that the welfare being the paramount interest for the child and the financial status of the father, which has been proved by the evidence, would show that the child can be admitted to the best School in India and best education can be given to her. He would further submit that the child was admitted to a school which was not recognized and was being run by the mother, these factors were ignored by the learned family Court.

5. Learned counsel would further submit that even if considering the fact that both these circumstances are balanced for both father & mother, the family Court failed to take into account that what would be the factor which would favour the custody to be with the mother. It is further submitted that the paramount interest has to be judged by the actions and omissions of respective parties and the circumstances if so point out that paramount welfare would be in the interest of the father, which is supported by the statute, ordinarily the father should be in the custody of the child after 5 years of the age and accordingly, the Court should have granted the custody. He would further submit that only half an hour visiting rights have been conferred to the father and the appellant being the father has all the desire to show love and affection to the child, the same cannot be denied only on impractical limited visiting rights.

6. He would further submit that when the visitation right given by the learned family Court was sought to be availed, false FIR was lodged against father. He would further submit that the order-sheet of the Court dated 12.07.2019 of the High Court would show that the child was directed to appear in person before the Court on 05.08.2019 but to avoid such meeting with the father, the false FIR was lodged on 01.08.2019. He would further submit that therefore, these circumstances and conduct of the mother should also be considered and the mot