The welfare of the child is of paramount consideration, and the duty of the husband to maintain his family is emphasized.

Gurvinder Singh Gill, J.

1. The appellant Ashu (wife) assails order dated 12.1.2017 passed by the learned Additional District Judge, Jind, whereby an application filed by her under Section 26 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') seeking custody of her minor child namely Daksh has been dismissed and she has been granted visitation rights only to meet her minor son on every Saturday/Sunday between 10 A.M. to 1 P.M. at residence of her husband or at the hospital, after seeking permission from the doctor concerned.

2. A few facts, necessary to notice for disposal of this appeal, are that marriage of the parties was solemnized on 23.4.2015 and a child namely Daksh was born out of the wedlock on 6.4.2016. However, differences having crept in the relationship of the parties, the respondent-husband filed a petition under Section 13 of the Act seeking dissolution of his marriage with the appellant. Since the minor son was staying with respondent, the appellant moved an application under Section 26 of the Act seeking custody of minor son.

3. The appellant, in her application under Section 26 of the Act averred that she is natural guardian of her minor child Daksh and that the respondent had forcibly and without her consent taken away custody of the minor child and she was not even permitted to meet the child, who is of tender age. It is further averred that though a Panchayat had been convened on 22.5.2016 wherein her husband had agreed to take her back to matrimonial home but subsequently he refused to do the same. The appellant, thus, prayed for handing over custody of minor to the applicant with a further direction to allow her to meet the child.

4. The respondent-husband, in his reply to the aforesaid application, took a stand that when his parents went to bring the appellant to the matrimonial home in seventh month of pregnancy, the appellant stated that she would give birth to the child and hand over the child to respondent as there was no relation between them and that the appellant accordingly after giving birth to the child, left hospital leaving the child to die after delivery. It is further asserted that the child had born on 6.4.2016 at 8:10 A.M. and was in a critical condition in Sanjeevni Hospital, Jind and it was at about 11:30 A.M. that the respondent was informed about the birth of the child and his serious condition. Upon advice of doctor, the child was rushed to Aastha Hospital, Jind where he remained in ICU due to his critical condition. It is further averred that though the appellant was called for breast-feeding the child but she did not turn up. Due to deterioration of the condition of the child, he was taken to Jindal Hospital, Hisar where he is still under treatment and is in custody of the respondent-husband. The respondent further asserted therein that the appellant threatened to involve him in false criminal case regarding demand of dowry etc. and that an application was in fact made to the police, which was subsequently withdrawn on the ground that as per decision of panchayat she had agreed to join company of her husband but she did not return to her matrimonial home. The respondent, thus, took a stand that the appellant cannot take advantage of her own wrongs and prayed for dismissal of the application.

5. The learned lower Court upon considering the pleadings and contentions of the parties held that the custody of the minor cannot be ordered to be given to appellant observing therein that she has no source of income and was unable even to maintain herself. The appellant was, however, granted visitation rights vide impugned order dated 12.1.2017.

6. We have heard the learned counsel for the parties. Admittedly, the parties are residing separately due to matrimonial discord and a petition under Section 13 of the Act is pending between the parties. The minor child Daksh was born on 6.4.2016 i.e. within one year of the marriage of the parties. The learned lower Court whil