The welfare of the child is the paramount consideration for deciding custody, and the rights of the parties are subservient to the welfare of the child.

JUDGMENT :

M. LAXMAN, J.

1. The present appeal assails the order and decree dated 02.01.2018 in G.O.P. No. 119 of 2015 on the file of the Judge, Family Court, Khammam (for short trial Court) wherein and whereby the application filed by the respondent herein for change of custody of the minor child viz. Ganji Sai Gnyanesh from the custody of petitioner herein was allowed.

2. The appellant herein is the respondent and the respondent herein is the petitioner in GOP No. 119 of 2015. For the sake of convenience, the parties hereinafter are referred to as they are arrayed before the trial Court in the said GOP.

3. The case of the petitioner is that the respondent is his own sister. The petitioner married one Ganji Durga and the minor child Ganji Sai Gnyanesh was born to them on 19.07.2008 at Khammam. 40 days after the birth of the child, the wife of the petitioner died. When the petitioner was under shock and sorrowful condition, at the instance of his old aged parents, he reluctantly agreed to handover the custody of the minor child to the respondent.

4. It is the further case of the petitioner that the respondent married to Syed Abdul Quddus. Even though the child was in the temporary custody of the respondent, the petitioner had been regularly visiting the child and he was taking care of the child. On 09.01.2015, the petitioner went to the house of the respondent to bring the minor child back for Pongal holidays, but the respondent resisted and refused to allow the custody. In the said circumstances, the petitioner filed the said GOP.

5. Contesting the GOP, the respondent admits that the child was born to the petitioner and his deceased wife. She also admits the circumstance under which the custody of the minor child was handed over to her from the petitioner. She also admits that she married to Syed Abdul Quddus. She claims that the petitioner voluntarily handed over the minor child to her for taking care, welfare and maintenance when the child was of tender age. She had been taking care of the minor child as a foster mother and the minor child was given good education and he is studying 2nd class in Narayana Foundation School, Khammam. She further claims that the child’s name was changed as Syed Meer Rashid Ali. She further claims that her husband is also very cooperative in looking after the welfare of the minor child and the minor child is also happy, peaceful and comfortable with her. She denied the claim of the petitioner that she refused to hand over the custody of the minor child to the respondent. According to the respondent, there is no cause of action.

6. In the trial Court, the petitioner to support his case, examined PWs. 1 to 3 and relied upon Exs.A-1 and A-2. The respondent, to support her case, examined herself as RW-1, but she did not let in any documentary evidence.

7. The trial Court, after considering the evidence on record, found that the petitioner has made out case for change of custody of the minor. Accordingly, the trial Court allowed the said GOP and ordered for change of custody of the minor from the respondent to the petitioner. Hence, the present appeal by the respondent.

8. Heard both sides.

9. The only point that arises for consideration is whether the welfare of the minor is better in the custody of the petitioner or the respondent?

10. The undisputed facts are that the custody of the minor was handed over to the respondent when the wife of the petitioner died after 40 days of giving birth to the child. According to the petitioner, his parents were old aged, and on account of their pressure, and considering the tender age of the child, temporary custody of the minor was given to the respondent, who is no other than his own sister. The respondent has claimed that the petitioner has voluntarily handed over the minor child to her and she is taking care and welfare of the minor.

11. As per Section 6 of the Hindu Adoptions and Maintenance Act, the custody of the child upto five years is legally with the mother and