JUDGMENT :

RAJENDRA PRAKASH SONI, J.

1. This appeal has been preferred by the appellant-husband against order dated 25.07.2023 passed by learned Family Court No. 2, Jodhpur in Civil Case No. 06/2018 (N.C.V. No. 24/2015) by which learned trial court has dismissed the prayer of appellant for custody of the child, who is currently residing with the respondent.

2. As per facts available on record, the appellant and the respondent tied matrimonial chord on 30.06.2006 as per Hindu rituals and ceremonies. This sacrosanct alliance eluded the couple, inasmuch as soon after the marriage, and matrimonial discord surfaced, which has loosened the said knot. Both the parties blame each other for sordid state of affairs. Over a period of time, relationship between the parties has been ruined. What is more unfortunate is that the acrimony between two of them, because of which they are living separately since 2007, life of their only child Shivam @ Shiv Raj Singh, who was born from their wedlock on 12.01.2008 is becoming more and more miserable.

3. The appellant herein pleaded that respondent has chosen to live with her parents willingly and refused to live a married life with the appellant. She has deserted matrimonial home and broken the institute of marriage. She is currently residing separately without any sufficient reason. She has filed various cases against the appellant and his family members. It is further pleaded that respondent is not leading a chaste life and is seeking to sever ties with the appellant through divorce. Appellant is very much affectionate towards his son and is very much interested in his welfare. He can offer a better future for his child as the child is not being maintained and looked after properly by the respondent. The appellant is keen on taking custody of the child to provide him with better education and upbringing. Despite several attempts to take custody, respondent has consistently refused.

4. It is further pleaded that continued life of the child with the respondent will be against the context of the child. Appellant is natural guardian of the child under the law and, therefore, entitled to have the custody. For these reasons, he prayed for the custody of the child.

5. Respondent-wife stated in reply that husband himself has thrown her out of in-laws house and behaved with cruelty. Appellant has never been affectionate towards the child. He has not even deposited the amount ordered by the court for the maintenance of the child. She has been in continuous possession, care and protection of the child since birth and appellant has no love and affection for his son. For physical and mental well-being and proper upbringing of the child, she is entitled to retain custody of the child, being her mother. According to her, she is bringing up the child in an affectionate manner and in healthy manner. All other allegations including her reputation were denied. She is very much attached towards her son and the son is also keeping good health and is getting good education. On these grounds, the respondent wanted dismissal of petition.

6. The trial court framed the issue which touched upon the dispute that is whether the appellant herein is entitled to have custody of his minor son.

7. Evidence was led by both the parties, who examined themselves as PW-1 and DW-1 respectively. The respondent also got the statement of his minor son Shivraj Singh recorded.

8. After taking into consideration the entire evidence both oral and documentary, learned trial court was of the opinion that the respondent, being mother of the child, was better suited to retain the custody and to take care of the child and this course of action is in the best of interest of the child. Trial court, therefore, dismissed the petition filed by the appellant.

9. Heard learned counsel for the appellant at the admission stage and perused the record.

10. The only question that requires consideration in the present appeal is how far the learned Judge was correct in ho