JUDGMENT :

N.K. CHANDRAVANSHI, J.

1. This appeal has been preferred by the appellant against order dated 24-7-2017 passed by the Family Court, Baikunthpur Distt. Korea (CG) in Misc. Criminal Case No. 13/2016 (CIS No. 6/2017) whereby application filed by the appellant/husband under Section 7 of the Guardianship and Wards Act, 1890 (hereinafter referred to as ‘the Act 1890’) read with Section 6 of Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as ‘the Act 1956’) for grant of custody of his minor son, was dismissed.

2. Facts of the case, in brief, are that marriage of the appellant/husband was solemnized with respondent/wife on 7-5-2009. They have been blessed with a son namely Ashish, who was aged about 6 years at the time of filing of the application. It is alleged that the respondent/wife lived with the appellant only for about 10 months, thereafter, she left company of appellant and efforts made by the appellant to bring her back went in vain and she is residing with her parents at their village. It has been further pleaded that on an application being filed by the respondent, earlier the husband was giving Rs. 1,500/- per month for her maintenance, which was subsequently increased to the tune of Rs. 1,700/- per month. Thus, she is not having source of income to maintain herself and their son, whereas the appellant is having government job and he is natural father of the child. Hence, he can take better care for welfare of their child in respect of his study, health and other needs of life, therefore, the appellant has requested to give custody of their minor child Ashish from respondent/wife.

3. In reply, the respondent/wife has accepted that she is residing along with her child in her parental home at village Dhodibahra, where she delivered their son Ashish, but she has been compelled by the appellant to part him, as she was subjected to cruelty on various counts by the appellant. After delivery of child, appellant has never come to meet them, divorce proceeding is also going on between them. Appellant has never taken care of them and when she filed maintenance application, only thereafter, he is giving amount of maintenance and only to escape from paying maintenance to them, he has filed aforesaid application. She has further pleaded that she is mother of the child, capable to maintain him and taking proper care of him, therefore, the application filed by the appellant is liable to be rejected.

4. In respect of his pleading, appellant examined himself as PW-1, and Secretary of their social forum Sanjay Kumar Kurre as PW-2. Respondent has examined herself as DW-1 and her father Pati Narayan as DW-2.

5. Learned Family Court, after appreciating and evaluating the evidence adduced by both the parties, dismissed the application filed by the appellant after holding that welfare and betterment of child is much more safe with his mother, as father was not found to be responsible towards their child.

6. Learned counsel for the appellant would submit that at the time of filing of application, age of child was about 6 years, thus he had become a school going boy, but he is residing along with her mother at village Dhodhibahra where school facility is not good and respondent is not only an illiterate house lady, but also she has no source of income to maintain her own and their son’s livelihood, as she is maintaining herself and the child only from the amount of maintenance, given by the appellant, whereas the appellant is posted as Health Worker (Male) in the health department and taking monthly salary. Efforts made by the appellant to bring back the respondent and their child have gone in vain, as not only the respondent refused to reside with the appellant, but she also denied to send their child with the appellant. Appellant lives at village Churcha, which is a municipal area and he wants to get admitted his child in Central School or St. Joseph School, Baikunthpur for his better study and better future, but these asp