JUDGMENT :

(Goutam Bhaduri, J.)

1. Heard.

2. The present appeal is filed by the father/appellant against the order dated 02.08.2018 passed by First Additional Principal Judge, Family Court, Durg in MJC No. 12/2013, whereby application under Section 25 of the Guardians and Wards Act, 1890 (henceforth “Act, 1890”) preferred by the father to get custody of his minor child was dismissed.

3. The facts of the case are that the appellant Nagendra Kumar Joshi was married to Anita, who is daughter of respondent, on 14.04.2007 and out of their wedlock a child - Tanishq was born on 12.07.2008. According to appellant, since Anita was ailing, as such, she left company of the husband without his knowledge on the pretext of treatment and eventually on 25.06.2012, Anita, first wife of the appellant died. Thereafter, the appellant went to get custody of the child from in-laws, but it was refused. It is stated that father-in-law of the appellant is not much educated, as such, development of the child may not take place properly. It was stated that financially the appellant is well off and he would be able to take care of the child in most effective manner to his interest, therefore, custody of the child may be handed over to the appellant.

4. The respondent, who is father-in-law of the appellant, replied to the averments made in the application and stated that his daughter was being tortured for demand of dowry both physically and mentally. Consequently, she was forced to stay at her parental home. It was stated that birth of the child had taken place at their place and after birth, the appellant, natural father, never used to take care of his child and performed second marriage immediately after death of Anita and out of that, two female children are also born. It was stated that appellant would not be able to take care of the child in proper and effective manner, therefore, welfare of the child would be better in the hands of the maternal grandfather i.e. respondent and sought for dismissal of the application.

5. Appellant examined himself as PW-1, one Dinesh Kumar Dhritlahre was examined as PW-2 and other witnesses though were examined but not cross-examined whereas respondent on his part examined himself as DW-1, one Suneeta Singh was examined as DW-2 and child Tanishq Kumar was examined as DW-3.

6. Learned Family Court, after appreciating and evaluating the evidence, dismissed the application filed by the father for custody of his minor child. Hence, this appeal.

7. Learned counsel appearing for the appellant/father would submit that as per evidence, the respondent is not in hold of sufficient means to take care of the child. He referred to the statement of appellant (PW-1), as also the statement of Suklal Bandhe (DW-1) to say that he was getting only a pension of Rs.2,065/- per month whereas income of the appellant was more than Rs.70,000/- - Rs.80,000/- per annum, consequently, at the mere glance, it would reveal that who would be in better position to take care of the minor child - Tanishq. He would further submit that as and when father wanted to visit, that too was also not supported by the respondent, consequently, there was no meeting in between the child and the father, as a result, child refused to meet the father. He would also submit that since the parents are old aged persons, therefore, in case of any event, future of the child may not be secured. He referred the judgment laid down by this Court in the matter of Dhanna Ram v. Mamta Singh, FAM No. 20 of 2019, decided on 27.08.2019, to canvass the fact that welfare of the child would be better in the hands of the father, being natural guardian, consequently, child may be handed over to the appellant/father.

8. Per contra, learned counsel for the respondent would submit that before death of appellant's first wife Anita, because of torture meted out to her, she was forced to stay at her parental home. He would further submit that immediately after the death of his first wife – Anita, appe