JUDGMENT :

Radhakishan Agrawal, J.

Goutam Bhaduri, J. (concurring)

1. This appeal is by the husband under Section 19 (1) of the Family Courts Act, 1984 (for brevity 'the Act of 1984') read with Section 47 of the Guardians and Wards Act, 1890 (for brevity 'the Act of 1890') against the judgment dated 06.03.2021 passed by the First Additional Principal Judge, Family Court, Durg, C.G. in Misc. Civil Suit No.24/2020, whereby the application filed by husband under Section 25 of the Act of 1890 has been dismissed.

2. (i) Brief facts of the case are that on 24.05.2014, marriage of the appellant-husband was solemnized with the respondent-wife according to Hindu Rites and Rituals at Vijaynagram, Andhra Pradhesh and out of their wedlock, Ku. Dakshata was born on 21.03.2015. It is alleged by the appellant that the respondent did not take care of her child and was always careless towards the child since birth. Upon consultation with psychiatrist, the appellant came to know that respondent is suffering from schizophrenia disease and thereafter she was taken to Citizen Hospital, Hyderabad where Dr. Anita Arya conducted her treatment for a long time. The respondent and her parents had left the child with the appellant for her proper care. Thus, the daughter has been living under the protection of the appellant since the age of one year. When the appellant filed a divorce petition against the respondent before the Family Court, Durg in which proceedings respondent appeared and prayed for time to file written statement. Meanwhile, the respondent filed an application under Section 97 Cr.P.C. before SDM, Durg and got a warrant issued against the appellant seeking presence of her daughter.

(ii) It is alleged that the respondent subjected the appellant to mental harassment by way of abusing and threatening him and also used to create nuisance and used to quarrel with him over petty matters and always wanted to take her daughter back from his custody for which she used to issue threats in that regard and being fed up with the persistent ill-treatment, he filed a complaint before the concerned police station. In such a situation, the future of the minor daughter is not safe and secure in the hands of respondent as under her guardianship there is likely to have an adverse effect on both physical and mental development of the child whereas the appellant is fully competent to look after his daughter by bringing her up and educating her as he is working as Accountant. Therefore, being a natural guardian, custody of child be given to him.

3. Wife filed her written statement denying the plaint averments. She stated that after marriage, the appellant started mental harassment with her with respect to demand of dowry. It is pleaded by the respondent that at present, she is working in the office of ESIC and thus she is fully competent to take care of her child, rather appellant is very careless as also even not bothered to meet his daughter. She has further stated that the appellant is not capable to properly maintain and educate her daughter. Apart from that, it is stated by her that if the custody of her daughter is given to appellant, there would be negative impact on her. She has also stated that she is mentally & physically fit and thus capable to take care of her daughter as also to provide proper education and therefore, custody of minor child sought for by the husband may not be granted.

4. Learned Family Court after evaluating evidence adduced by both the parties, dismissed the application filed by the husband under Section 25 of the Act of 1890 while giving the custody of minor child to the respondent-mother taking into consideration the paramount welfare of the minor child.

5. Learned counsel for the appellant/husband submits that the Family Court ought to have considered the paramount interest of the minor child Ku. Dakshata. The Family Court has failed to appreciate that husband is a natural guardian and is entitled to get the custody of minor child. Ac