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Dates of hearing: 15 th December, 2023 and 29 th January, 2024.

Date of judgment: 29 th January, 2024.

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ARINDAM SINHA, J. 1. Mr. Mohapatra, learned advocate appears on behalf of appellant-wife/mother and submits, impugned is judgment dated 18th March, 2023 made under section 25 in Guardians and Wards Act, 1890. The family Court directed custody of the minor girl child, who is 8 years old, to be with respondent-

husband/father. The judgment is result of incorrect appreciation of the evidence. He draws attention to paragraph-12 therein and submits, inter alia, there is erroneous finding that respondent has joint family consisting of 8 to 9 members and as such, it weighed with the learned Judge to direct his client to hand over custody to respondent-husband. He points out from evidence of P.W.2, landlord of respondent-father that he was staying alone in the rented accommodation.

2. Mr. Mohapatra relies on several judgments. (i) Judgment of the Supreme Court in Smt. Surindar Kaur Sandhu v. Harbax Singh Sandhu , reported in AIR 1984 SC 1224 and also (1984) 3 SCC 698 . He submits, the Apex Court denied the father custody, though he was natural guardian. (ii) Judgment of the Supreme Court in Kumar V. Jahgirdar v. Chethana Ramatheertha , reported in (2001) 4 SCC 682 on the directions given therein. (iii) Judgment dated 14 th July, 2022 of the Supreme Court in Writ Petition (Criminal) no.402 of 2021 ( Rajeswari Chandrasekar Ganesh v. The State of Tamil Nadu and Others ), paragraph-108, wherein earlier judgment of said Court in Vivek Singh v. Romani Singh , reported in (2017) 3 SCC 231 was relied upon. The relied upon judgment, Mr. Mohapatra submits, in turn had referred to observations made by the Delhi High Court in K.G. v. State of Delhi and another on judgment dated 16 th November, 2017 in Writ Petition (Criminal) no.374/2017 and Criminal Miscellaneous Application no.2007/2017 . Paragraph-118 from Rajeswari (supra) is reproduced below.

“118 . We find the observations made by the Delhi High Court, in the case of K.G. v. State of Delhi and another, dated 16.11.2017 in Writ Petition (Criminal) No.374/2017 and Criminal Miscellaneous Application No.2007/2017, quite commendable, that the best welfare of the child, normally, would lie in living with both his/her parents in a happy, loving and caring environment, where the parents contribute to the upbringing of the child in all spheres of life, and the child receives emotional, social, physical and material support- to name a few. In a disturbed marriage, unfortunately, there is bound to be impairment of some of the inputs which are, ideally, essential for the best interest of the child.” (iv) View taken by a learned single Judge of the High Court of Bombay on order dated 21 st July, 2023 in Writ Petition no.2048 of 2023 and Interim Application ( Abhishek Ajit Chavan vs. Gauri Abhishek Chavan) , paragraphs-18 and 19, reproduced below.

“18. It is now well settled position in law that while considering the issue of custody of the minor, the paramount consideration is the welfare of the minor. Viewed from that aspect, considering the age and gender of the child and taking into consideration the facts of the case, in my view, at this stage, it is in the welfare of the child that the interim custody is granted to the mother. As indicated above the comfort of the child is one aspect of the welfare of the child. The word, “Welfare” is to be understood in the widest sense taking within its fold the physical and mental well being, health, comfort and overall social and moral development of the child. All that