The welfare of the child is the paramount consideration in custody disputes, overriding the legal rights of parents.

CAV JUDGMENT

1. By this appeal under Section 47 of the Guardians and Wards Act, 1890 , appellant has questioned the legality and sustainability of the impugned order dated 09.10.2018 passed in MJC No.1/2016 whereby learned Additional Judge of the Court of Additional District Judge, Mungeli has allowed the application filed under Section 7 of the Guardians and Wards Act, 1890 (hereinafter referred to as “Act of 1890”) read with Section 13 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as “Act of 1956”).

2. Facts relevant for disposal of this appeal are that appellant got married with Shashi Vishnav. Shashi Vaishnav died while suffering with medical ailment. During suffering of Shashi Vaishnav with medical ailment, minor child started residing with her maternal-grand-mother. However, in the month of November 2015, the appellant/non-applicant made an attempt to took the minor child with him forcefully. Incident was reported based upon which proceeding under Section 151 of Cr.P.C. was initiated. Applicant/respondent is residing along with her two sons and daughter-in-law. Aggrieved with action taken by appellant/non- applicant, respondent/applicant has submitted an application under Section 7 of the Act of 1890 read with Section 13 of the Act of 1956 on the ground pleaded therein. Said application was replied by non-applicant/appellant. Upon considering the pleadings made in the application and evidence brought on record by respective parties learned Court below allowed the application vide impugned order dated 09.10.2018. It is this order which is put to challenge in this appeal.

3. Learned counsel for the appellant/non-applicant would submit that order passed by learned trial Court is erroneous because the trial Court erred in ignoring the basic principles of law relating to custody of child. The Court below failed to take note of the fact that the applicant/respondent who has filed application under Section 7 of the Act of of 1890 read with Section 13 of the Act of 1956 was about 62 years of age on the date of filing of application, a widow, not having any independent source of income, she is not able to maintain herself and therefore could not even able to maintain minor child. Decision relied upon by learned Court below is on different facts. Dispute therein was between the husband and wife. In the case at hand mother died and, therefore, father is entitled for custody of child being the natural guardian. Consideration of trial Court in granting custody of child to applicant/respondent declaring the applicant/respondent to be guardian of minor child observing that paramount welfare of minor child would be with the applicant/respondent is contrary to the facts and evidence available on record. Appellant/non-applicant being father is having sufficient means to take care of minor child, which in fact was not having with respondent/applicant who was declared to be guardian of minor child.

4. Learned counsel for the respondent/applicant vehemently opposes the submission of learned counsel for the appellant/non-applicant and would submit that minor child is residing with respondent-maternal-grand-mother since age of seven. Before Court below, statement of minor child was also recorded wherein also she stated that she is residing happily with her maternal-grand-mother, maternal -uncles and is getting good education. He submits that from evidence of appellant/non-applicant it appears that no other person is residing along with appellant or any female family member. Applicant remains out of the house for his business purpose from 9:00 am to 9:00 pm and further that place where the appellant/non-applicant resides is a small place not having proper education and medical facility. He contended that for determining the question as to who should be given custody of minor child, paramount consideration is the welfare of child and not rights of parents. In support of his contentions, he places reliance upon the decis