The paramount consideration in custody disputes under the Guardians and Wards Act is the welfare of the child, which takes precedence over personal law.

JUDGMENT :

Rajani Dubey, J.

1. The challenge in this appeal is to the judgment and decree dated 24.04.2024 passed by the learned First Additional Principal Judge, Family Court Durg (C.G.) in Miscellaneous Civil Suit No. 48/2022 whereby the application filed under Sections 25 and 26 of the Guardians and Wards Act, 1890 by the respondent No.1-herein was allowed and custody of the child is ordered to be kept with the mother, the respondent No.1- wife herein. The parties to this appeal shall be referred herein as per their description before the learned Family Court.

2. Admitted facts of the case are that the marriage between the applicant/wife and non-applicant No.1/husband was solemnized on 18.01.2017, according to Muslim Rituals and Customs and from their wedlock, son Akhtar Raza was born on 17.11.2017 and one daughter was born on 01.11.2020. It is also an admitted fact that non-applicant No. 2, non-applicant No.3 and non-applicant No. 4 are father-in-law, mother-in-law and brother-in-law of the applicant/wife respectively.

3. In the application, it has been pleaded by respondent No. 1/wife that after her marriage she was subjected to cruelty on the ground of demand of dowry, for which she lodged the complaint at Mahila Thana, Sector-6. Her in-laws harassed her on account of black magic. She further stated that her husband i.e. appellant works in Dubai and earns Rs. 80,000/- per month. He used to come to his parental house once or twice a year for some limited days. Before September 2021, he came to Bhilai, ousted the respondent No. 1 from the house and retained minor son with him. For the custody of minor son, respondent No.1 preferred an application before the Police Station and also before the SDM, Durg, where her in-laws denied to give custody of minor son to her. After non-applicant No. 1 went to Dubai, son Akhtar Raza is not getting love from the parents and he is not getting proper upbringing. Non-applicant No. 3 remains busy in her work, the rest of the non- applicants also remained out of the house for their work. Due to this, the mental development, health and diet of the minor son is getting affected and his life, health and education are getting adversely affected. In such a situation, there is no other option except the applicant, for the bright future, education of her son. The non- applicants restricted her from meeting the child. The cause of action arose in the month of September 2021 when the applicant's son was taken away from her unfairly and illegally. Since the cause of action is within the jurisdiction of the Court, the present application has been filed in this Court. Therefore, on the above grounds, a request has been made to hand over her minor child Akhtar Raza to her.

4. The appellant/non-applicant No.1 filed his written statement denying all the allegations and averments of the application and submitted that respondent No. 1 was never subjected to cruelty and harassment, all the allegations are false in nature. He works in Abudhabi as a worker in a company and earns about Rs.30,000/- per month and out of which he regularly pays Rs. 5,000/- per month to his parents in compliance of judicial order. He further submitted that respondent No.1 herself left her matrimonial home and also she herself left her minor son in the safe custody of her in-laws and then she never returned back. She used to beat minor son without any reason. She never took care of minor son even she stopped breast feeding when minor son was aged about 3 months. She used to say that she did not want a baby, thus she did not love him and had no affection with him. He f