ORDER

By the present miscellaneous appeal filed under Section 47 of Guardians and Wards Act, 1890, appellant has assailed the order dated 8.11.2019 passed in M.J.C No.03/2018 whereby learned First Additional District Judge, Signature Not Verified Signed by: MOHD IRFAN Waraseoni, District Balaghat has rejected the application filed by appellant under Section 25 of Guardians and Wards Act, 1890 (hereinafter referred to as "Act of 1890) for custody of his son Prateek - respondent No.2.

2. Bare facts of the case are that, appellant married to Reena on 7.5.2009 who is daughter of respondent No.1-Yashwantrai Meshram and respondent No.2- Prateek born out of wedlock on 8.8.2010. Later on, marriage was dissolved by decree of divorce passed by First Additional District Judge, Waraseoni, District Balaghat and Reena solemnized second marriage and now living with her second husband. However, respondent No.2 is living with his maternal grand parents at village Koliwada. Appellant preferred application under Section 25 of the Act of 1890 for custody of respondent no.2 on the ground that respondent No.1 is not financially capable to maintain respondent No.2 and appellant being natural guardian and father of respondent No.2 is entitled for his custody.

3. Respondents filed reply denying allegations and prayed for dismissal of application on various grounds. Respondents alleged in their reply that appellant used to harass and torture the mother of respondent No.2 and therefore, she filed a petition for divorce, which was allowed. It is alleged that appellant never fulfilled the duty and liability of a father and welfare of the child will serve living with maternal grand parents. It is also stated that when respondent No.1 filed an application under Section 125 of Cr.P.C. for grant of maintenance, appellant preferred application under Section 25 of the Act of 1890, only to avoid payment of maintenance amount, otherwise earlier he never demanded the custody of Ward.

4. Learned trial Court framed five issues and after recording evidence of both the parties dismissed the application filed by appellant on the ground that conduct of appellant was objectionable and welfare of child is paramount and in Signature Not Verified Signed by: MOHD IRFAN the considered opinion of trial Court, maternal grand parents of child are competent to take care of him. They are providing him proper education and fulfilling his all requirements.

5. Learned counsel for appellant submits that the order passed by learned trial Court is erroneous as appellant being the father of the child cannot deprived of custody of his son. He further submits that mother has already solemnized second marriage and child is living with maternal grand parents, therefore, custody of child ought to have been given to the father.

6. Per contra, learned counsel appearing on behalf of respondents submits that the most suitable person amongst the rival claimants for guardianship of the Ward is maternal grandfather, who is properly maintaining the Ward. It is not a rule that father should get custody of child. In absence of mother too, father can be denied the custody of child, if welfare lies with grand parents of a child. It is further submitted that Ward would be scared to be in custody of appellant, who was habitual to beat mother of the Ward and learned trial Court has not committed any mistake in continuing custody of Ward with the maternal grand parents and dismissing the application preferred by appellant.

7. Heard counsel for the parties and perused the record.

8. According to Section 6 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as "the Act of 1956), father is natural guardian of a minor and custody of male child above age of five years, normally should be given to the father. However, the welfare of Ward is the paramount consideration.

Section 13 of the Act, 1956 provides following:- 13. Welfare of minor to be paramount consideration.—

(1) In the appointment or declara