ORDER :

Shree Chandrashekhar, J.

Rameshwar Soni who is the appellant and maternal grandfather of the minor Arush Soni is in appeal under section 19(1) of the Family Courts Act, 1984 against the judgment dated 6th December 2016 passed in Original Suit No. 03 of 2016.

2. By the said judgment, Original Suit No. 03 of 2016 was decreed and Rameshwar Soni was directed to hand over the custody of Arush Soni to his father within four weeks. The Principal Judge, Family Court, Gumla has however granted visitation rights to the maternal grandfather once in a week preferably on Sundays.

3. By an order dated 19th July 2017 the operation of the judgment passed in Original Suit No. 03 of 2016 was stayed by this Court.

4. The father of Arush Soni (hereinafter referred to as respondent) instituted the suit seeking an order of the Court declaring him as guardian of his son with a further direction to Rameshwar Soni to hand over the custody of Arush Soni to him. In the year 2010, Arun Soni was married with Suman Soni who is the eldest daughter of Rameshwar Soni and from the wedlock Arush Soni was born on 6th September 2011. The minor child was aged about 5 years at the time when Original Suit No. 03 of 2016 was filed under section 7 read with section 10 of the Guardians and Wards Act, 1890. Suman Soni died of kidney ailment on 3rd December 2014 at her parents' place and since then Arush Soni was living with his maternal grandparents.

5. In Original Suit No. 03 of 2016, the respondent pleaded that since his son has attained the age of four years for the purpose of better upbringing and providing proper education to him he desired that custody of his son should be handed over to him but since his father-in-law refused to send his son to his home he was constrained to file Original Suit No. 03 of 2016. The respondent took a stand that after the death of his wife, Arush Soni remained with his maternal grandparents with his consent as he thought that after loss of his mother his son should not have been brought back home suddenly. In his written statement, Rameshwar Soni took a specific stand that his son-in-law is unemployed, he was addicted to psychotropic substances and he sold properties to satisfy his needs for addiction of psychotropic substance. It was specifically averred by Rameshwar Soni that his son-in-law was addicted to ganja, bhang etc. due to which he suffered mental illness for which he was admitted in 'Prasant Medical' at Rourkela for about ten days between 15th September 2012 to 25th September 2012. He further set up a plea that during illness of his daughter his son-in-law did not take care of her and sent her to his place (maika) and all along he did not take care of his son also.

6. From the proceedings in Original Suit No. 3 of 2016, it appears that during pendency of the suit before him the Family Court Judge examined Arush Soni and formed an opinion that he was not capable of forming an intelligent preference regarding his custody. During the trial both parties came to the witness box and tendered evidence in support of their respective case. The appellant examined three witnesses and to oppose his prayer for custody of his son the respondent also examined three witnesses.

7. Ganesh Soni who is the brother-in-law of Arun Soni tendered evidence in the Court as AW1 in respect of marriage of Arun Soni with his sister and birth of Arush Soni. He deposed in the Court that before his marriage Arun Soni had separate business at Kumar Munda in District Sundargarh, Orissa where he resided with his wife after the marriage. He came back to Rourkela after his wife became ill as it was not possible for him to take care of his wife. He further stated that due to sudden illness and death of his wife Arun Soni became mentally disturbed. AW2 Punam Devi is the mother of Arun Soni who also stated about her son closing his business on account of illness of his wife. She further deposed that her son would often visit his minor child at 'Palkot' where at t