In custody matters, the paramount consideration is the welfare of the child. A father's statutory right as a natural guardian is subordinate to the child's physical, moral, and emotional well-being, and a father's second marriage without divorce can be a valid reason to deny custody.

Sanjay K. Agrawal, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and decree dated 21/04/2022 (Annexure A/1) passed by the Family Court, Bemetara in Civil MJC No. 05/2021 whereby the application filed by the appellant/plaintiff under Section 6 of the Hindu Minority and Guardianship Act, 1956 (hereinafter, “the Act of 1956”) seeking custody of his minor son Master Yash Joshi, aged about 7 years (respondent No. 2 herein), has been dismissed finding no merit, against which the appellant/plaintiff has preferred this first appeal under Section 19(1) of the Family Courts Act, 1984.

2. The aforesaid challenge has been made on the following factual backdrop :-

(a) The marriage of the appellant/plaintiff/husband was solemnized with the respondent No. 1/defendant/wife on 13/05/2013 in accordance with the Hindu rites and rituals and they have been blessed with two sons namely Yash and Aayush, aged about 7 and 3½ years respectively.

(b) It is the case of the appellant/plaintiff that till one year of marriage the relationship between him and respondent/defendant No. 1 was fine, however, matrimonial discord arose between them thereafter and the respondent/defendant No. 1 threatened the appellant/plaintiff to implicate him in dowry cases for which he made a complaint to the Superintendent of Police, Bemetara on 13/08/2019 and then on 06/10/2021, father of respondent/defendant No. 1 came to appellant/plaintiff’s house and took respondent/defendant No. 1 and their younger son Aayush with him to her parental house. Meanwhile, respondent/defendant No. 2 namely Master Yash Joshi (as named before the Family Court) remained with the appellant/plaintiff. Thereafter, respondent/defendant No. 1 lodged a complaint before the Mahila Thana, Bhilai and in turn, the Sakhi Center, Durg called the appellant/plaintiff along with his elder son Master Yash Joshi and on 10/11/2021, the Officers of Sakhi Center, Durg handed over respondent/defendant No. 2 to respondent/defendant No. 1 which led the appellant/plaintiff to file application under Section 6 of the Act of 1956 seeking custody of respondent/defendant No. 2.

(b) Respondent/defendant No. 1 opposed the application and filed her written statement stating mainly that appellant/plaintiff has kept one Suman Joshi alias Lileshwari as his second wife, who is residing with him in his house, without getting any decree of divorce and therefore, on account of his misconduct, he is not entitled for custody of their son respondent/defendant No. 2.

(c) Learned Family Court, Bemetara, by its impugned judgment and decree dated 21/04/2022 (Annexure A/1), rejected the application under Section 6 of the Act of 1956 filed by the appellant/plaintiff, by exercising its parens patriae jurisdiction, giving paramount consideration to the welfare of the minor, holding that since the appellant/plaintiff has brought one Suman Joshi alias Lileshwari who is residing with him in his house as his second wife, without obtaining any decree of divorce, constitutes cruelty and misconduct on the part of the appellant/plaintiff, and merely because he is financially better equipped than the respondent/defendant No. 1, he cannot be held entitled for custody of respondent/defendant No. 2.

3. Mr. Bharat Rajput, learned counsel for the appellant/plaintiff, would submit that the Family Court has wrongly dismissed the application filed by the appellant/plaintiff and refused to grant custody of resp