JUDGMENT :

Goutam Bhaduri, J.

Heard.

1. The present appeal is against the order dated 6/12/2022 passed by the Additional Principal Judge, Family Court, Bilaspur whereby an application under Section 7 and 10 of the Guardians and Wards Act, 1890 (hereinafter referred to as the Act of 1890) whereby the custody of the children sought by the father, the appellant herein was dismissed.

2. The father is in appeal before this court. The brief facts of this case are that the appellant got married to the respondent Durgeshwari on 18/04/2014. Out of that wedlock, they were blessed with a child on 12/07/2015 for whom the custody battle is on. Because of the husband and wife could not go along, therefore according to their custom, they got separated on 10/08/2016. At the time of separation, the girl child was in the custody of the mother, the respondent. With the passage of time, the mother got remarried and the father the appellant also got remarried. After remarriage of both husband and wife, they were blessed with another child. At this moment, the child was kept in the lap of the maternal grand father and grand mother.

3. The petition was filed by the husband claiming the custody of the children on the ground that he is the natural guardian as per section 6 of the Act of 1890 read with Section 4 (c), therefore the custody of the children may be given to him. It is further stated that the wife in her statement has admitted that financial position of her father and mother, with whom the child resides are not well. On the other hand, the father the appellant is a man of means can take care of the welfare of the child. It is further stated that since the father is not allowed to visit the child it will have a negative effect and eventually her future will be affected, therefore the best interest of the child would be protected in the company of the father the appellant and the custody be accordingly be given to him. Learned counsel placed reliance in the matter of Babu Charan Patra vs. Nityananda Patra and Anr. reported in 2023 SAR Online (Ori) 47 and in the matter of Githa Hariharan Vs. Reserve Bank of India reported in 1999 (2) SCC 228.

4. Per contra, learned counsel for the respondent/mother would submit that the facts would suggest that even when the child and the father got separated, the appellant did not take care of the welfare of the child, as such, while the remarriage were performed, the child was kept with her maternal grand parents. She would further submit that the mother also keeps on visiting, therefore the statement of the child which was recorded before the Court would show that she want to stay with her maternal grand parents and the mother both. Consequently, under these circumstances, forceful order should not be made to hand over the custody of the children to the appellant. She would further submit that for welfare of the child the mother filed a petition for maintenance wherein amount of Rs.2000/- has been ordered, however that too is not being paid regularly.

5. We have heard the learned counsel for the parties, perused the pleading and the evidence on record.

6. There is no dispute about the fact that both the parties after the marriage got separated on 10/08/2016. At that time, the child was in the company of the mother. Subsequently, both the father and the mother they got remarried. In these circumstances, the child was put to the lap of the maternal grand parents.

7. The submission which is been made that the father is the natural guardian there is no doubt about such legal proposition but based upon right of being a legal guardian the custody battle cannot be decided. The prime consideration of court is happiness and the welfare of the child and same is supreme factor for deciding custody of child. It is a admitted fact that both the mother and father have been remarried which may cause eclipse to the degree of affection. This court while hearing the case interacted with the child and the order sheet dated 26/04/2023