JUDGMENT

1. Instant First Appeal is filed under section 19 of Family Court Act, 1984 against the order dated 22.11.2018 passed by Principal Judge, Family Court, Shivpuri in case No. 07/2018 (Guardian); whereby, application of respondent filed under section 6 of the Guardian and Wards Act, 1890 has been allowed.

2. Precisely stated facts of the case are that respondent filed an application under section 6 of the Guardian and Wards Act, 1890 (hereinafter shall be referred to as “Act of 1890”) seeking custody of his son- Ayush, aged about 2 year 3 months with the submissions that his minor son was born on 13.1.2016 and after his birth, wife of respondent namely Mala alias Manjula went to her maternal home with his minor son, where she died (suicide) on 8.4.2017. Therefore, case against respondent at the instance of appellants under section 304-B, 498-A, 506, 34 of IPC and section 3/4 of Dowry Prohibition act was registered.

3. It was further alleged that he requires the custody of his minor son because his maternal grandparents are not looking after him properly with their meager financial resources and they are less literate, which ave an adverse effect over the child. Appellants are keeping him aloof from love and affection of his son. He is able to maintain his child as he is a Govt. Employee, a Constable in Indo-Tibetan Border Police (I.T.B.P.). He is the natural guardian of the child. Therefore, custody be provided to him.

4. Present appellants (respondents in original proceedings) contested the case. According to them, criminal proceedings were pending under sections 304-B, 498-A, 506 and 34 of IPC against the respondent and he may be convicted therein. Respondent’sfather consumes liquor and his mother is differently abled. Coupled with this fact, respondent is in transferable job, therefore, he cannot look after his child properly. So far as financial condition is concerned, appellant No. 1 stated that he is a Contractor and have sufficient financial resources to bring him up.

5. Family Court after considering the rival submissions and evidence surfaced over the record passed the impugned order; whereby, respondent being father was found to be the natural guardian and looking to the welfare of the child gave his custody to respondent. Being aggrieved by the said order, maternal grandparents as appellants are before this Court.

6. It is the submission of learned counsel for the appellant that Court below erred in passing the impugned order and holding that respondent is entitled to get the custody of child; whereas, he is in I.T.B.P. by which he is required for long period of duty and his job is transferable. Therefore, in absence of any regular member to look after him, welfare of the child would be defeated. Appellant No. 1 referred his financial position while placing certain documents to show that recently he laid out a colony and sold the plots to purchasers. He is likely to earn around Rs. 1 crore from the said transactions, therefore, it is not the case, where appellants lack financial resources. Since birth, child is living with maternal grandparents and does not recognize his father. Rather, he has disliking for his father, therefore, on this count also, case of appellants gains ground. Child does not show any inclination to go his father’s house and live with him, therefore, family Court erred in passing the impugned order. In support of his arguments, learned counsel for the appellants relied upon decision of apex Court in the case of Gaurav Nagpal v. Sumedha Nagpal [(2009) 1 SCC 42].

7. Learned counsel for the respondent (appellant in original proceedings) vehemently opposed the prayer. According to him, respondent is in IndoTibetan Border Police and working as Constable and his pay slip which was considered by the Court below and found that respondent is financially capable enough to take care of his child and when child would be exposed to the life style of respondent; where, he lives in ambience of paramilit