The welfare of the minor child is paramount in custody disputes; legal rights of parties are secondary to ensuring a nurturing environment for the child's growth.

JUDGMENT :

Hirdesh, J.

The instant first appeal under Section 19 of the FAMILY COURTS ACT ,1984 read with Section 47 of Guardian and Wards Act,1890 (hereinafter it would be referred as “the Act of 1890”) has been preferred by appellant (maternal grandmother of minor child) challenging the impugned judgment and decree dated 13.02.2024 passed by Additional Principal Judge, Family Court, Gwalior in MJCGW No.2013/2019, whereby an application under Section 25 of the Act of 1890 filed by respondent (father of child) seeking custody of minor child Shivojas has been allowed.

2. Necessary facts for disposal of present appeal, in short, are that as per averments of the appellant, marriage of respondent with daughter of appellant, namely, Pratibha was solemnized on 06.06.2014. Out of their wedlock, they were blessed with one male child, namely, Shivojas on 10.09.2016. After 22 days of birth of the said child, Smt. Pratibha (mother of minor child) died on 02.10.2016. Since then, minor child is living with her. On 19.06.2019, respondent filed an application under Section 2 5 of the Act of 1890 before the Family Court, Gwalior seeking custody of said minor child, alleging that appellant is an arrogant lady and does not care and look after the minor child properly as well as she has no source of income and dependent on her parents. The further averment of the respondent is that he is a literate person and all facilities are available in his house for the welfare of minor child.

3. In reply, appellant submitted her written statement, alleging that respondent is not entitled for custody of minor child as he usually does not take care of minor child properly because he had never taken care of mother of minor child nor did he arrange for food and treatment as a result of which, the mother of minor child died soon after 22 days after birth of child. It was further alleged that respondent had illicit relations with a woman, namely, Shruti during life time. Immediately, after death of mother of minor child, respondent kept said Shruti as his wife and also married her. It was also alleged that Shruti was a previously married woman and after getting divorced, she is now living with respondent. It was further pleaded that a habeas corpus petition filed before the this Court is pending consideration. Upon filing of application under Section 125 of CrPC on behalf of minor child for maintenance, respondent has been directed by the Family Court on 28.08.2021 to pay Rs.8,000/- per month, but the respondent is not even paying a single penny. She usually makes proper arrangement for upbringing as well as care and education of minor child.

4. After considering the pleadings of both the parties, the Family Court framed the issues. After going through the evidence of both the parties, the Family Court vide impugned judgment and decree, allowed the application filed by respondent under Section 25 of the Act of 1890 seeking custody of minor child with a direction to the appellant to handover the custody of minor child within a period of two months. Being dissatisfied, the instant first appeal has been filed at the instance of appellant (maternal grandmother of minor child).

5. The submission of learned counsel for the appellant is that the Family Court has committed an error in allowing the application filed by respondent. It is further submitted that even after death of mother of minor child and after getting second marriage with said Shruti, respondent is not taking proper care of minor child without providing proper nutrition, medical treatment as well as educati