JUDGMENT : (Goutam Bhaduri, J.) 1. Heard. 2. The present appeal is filed by the father/appellant against the order dated 02.08.2018 passed by First Additional Principal Judge, Family Court, Durg in MJC No. 12/2013, whereby application under Section 25 of the Guardians and Wards Act, 1890 (henceforth “Act, 1890”) preferred by the father to get custody of his minor child was dismissed. 3. The facts of the case are that the appellant Nagendra Kumar Joshi was married to Anita, who is daughter of respondent, on 14.04.2007 and out of their wedlock a child - Tanishq was born on 12.07.2008. According to appellant, since Anita was ailing, as such, she left company of the husband without his knowledge on the pretext of treatment and eventually on 25.06.2012, Anita, first wife of the appellant died. Thereafter, the appellant went to get custody of the child from in-laws, but it was refused. It is stated that father-in-law of the appellant is not much educated, as such, development of the child may not take place properly. It was stated that financially the appellant is well off and he would be able to take care of the child in most effective manner to his interest, therefore, custody of the child may be handed over to the appellant. 4. The respondent, who is father-in-law of the appellant, replied to the averments made in the application and stated that his daughter was being tortured for demand of dowry both physically and mentally. Consequently, she was forced to stay at her parental home. It was stated that birth of the child had taken place at their place and after birth, the appellant, natural father, never used to take care of his child and performed second marriage immediately after death of Anita and out of that, two female children are also born. It was stated that appellant would not be able to take care of the child in proper and effective manner, therefore, welfare of the child would be better in the hands of the maternal grandfather i.e. respondent and sought for dismissal of the application. 5. Appellant examined himself as PW-1, one Dinesh Kumar Dhritlahre was examined as PW-2 and other witnesses though were examined but not cross-examined whereas respondent on his part examined himself as DW-1, one Suneeta Singh was examined as DW-2 and child Tanishq Kumar was examined as DW-3. 6. 5. Appellant examined himself as PW-1, one Dinesh Kumar Dhritlahre was examined as PW-2 and other witnesses though were examined but not cross-examined whereas respondent on his part examined himself as DW-1, one Suneeta Singh was examined as DW-2 and child Tanishq Kumar was examined as DW-3. 6. Learned Family Court, after appreciating and evaluating the evidence, dismissed the application filed by the father for custody of his minor child. Hence, this appeal. 7. Learned counsel appearing for the appellant/father would submit that as per evidence, the respondent is not in hold of sufficient means to take care of the child. He referred to the statement of appellant (PW-1), as also the statement of Suklal Bandhe (DW-1) to say that he was getting only a pension of Rs.2,065/- per month whereas income of the appellant was more than Rs.70,000/- - Rs.80,000/- per annum, consequently, at the mere glance, it would reveal that who would be in better position to take care of the minor child - Tanishq. He would further submit that as and when father wanted to visit, that too was also not supported by the respondent, consequently, there was no meeting in between the child and the father, as a result, child refused to meet the father. He would also submit that since the parents are old aged persons, therefore, in case of any event, future of the child may not be secured. He referred the judgment laid down by this Court in the matter of Dhanna Ram v. Mamta Singh, FAM No. 20 of 2019, decided on 27.08.2019, to canvass the fact that welfare of the child would be better in the hands of the father, being natural guardian, consequently, child may be handed over to the appellant/father. 8. Per contra, learned counsel for the respondent would submit that before death of appellant's first wife Anita, because of torture meted out to her, she was forced to stay at her parental home. He would further submit that immediately after the death of his first wife – Anita, appellant got married with one Amrit and out of such marriage, two female children are born, therefore, he would not be able to take care of the child to the fullest whereas statements of Suklal Bandhe (DW-1) and Sunita Singh (DW-2) [ ekSlh ] would show that they are fully devoted to take care of the child. He would further submit that when the child was examined before the Court, he expressed his opinion not to join the company of the father and, therefore, his statement cannot be ignored as per mandate of Section 17 (5) of the Act, 1890. He further referred to the statement of appellant/father and would submit that he admits to be unemployed. He placed reliance upon the judgment of the Supreme Court in the matters of Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 ; Ashish Ranjan v. Anupma Tandon and Another, (2010) 14 SCC 274 & Anjali Kapoor (Smt.) v. Rajiv Baijal, (2009) 7 SCC 322 in support of his submissions and would submit that welfare of the child would be a paramount consideration to decide the custody and taking into evidence, which is on record, it would be sufficient if custody of the child is given to the maternal grandfather and mother. 9. On 11.04.2022, statement of the child was also recorded before this Court, in which, minor child – Tanishq stated that he does not want to join the company of appellant/father and wants to stay with the respondent/maternal grand father. 10. We have heard learned counsel for the parties and perused the record of the Court below, orders and the documents attached with the appeal. 11. The statute which deals with the situation is the Guardians and Wards Act, 1890 and Section 4 of the Act, 1890 defines minor as a person who has not attained the age of majority. Guardian means a person having the care of the person of a minor or of his property, or of both his person and property. Ward is defined as a minor for whose person or property or both, there is a guardian. 12. Chapter II (Sections 5 to 19) relates to appointment and declaration of guardians. Section 7 deals with `power of the Court to make order as to guardianship' and reads as under: 7. Power of the Court to make order as to guardianship.- (1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made-- (a) appointing a guardian of his person or property, or both, or (b) declaring a person to be such a guardian, the Court may make an order accordingly. Power of the Court to make order as to guardianship.- (1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made-- (a) appointing a guardian of his person or property, or both, or (b) declaring a person to be such a guardian, the Court may make an order accordingly. (2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court. (3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act. 13. Section 8 of the Act enumerates the persons entitled to apply for an order as to guardianship. Section 9 empowers the Court having jurisdiction to entertain an application for guardianship. Section 10 to 16 deal with procedure and powers of the Court. Section 17 is another material provision and is reproduced; “17. Matters to be considered by the Court in appointing guardian.-(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. * * * * * (5) The Court shall not appoint or declare any person to be a guardian against his will. (emphasis supplied) 14. Section 19 prohibits the Court from appointing guardians in certain cases. 15. Chapter III (Sections 20 to 42) prescribes duties, rights and liabilities of guardians. 16. * * * * * (5) The Court shall not appoint or declare any person to be a guardian against his will. (emphasis supplied) 14. Section 19 prohibits the Court from appointing guardians in certain cases. 15. Chapter III (Sections 20 to 42) prescribes duties, rights and liabilities of guardians. 16. The Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as "1956 Act") is another equally important statute relating to minority and guardianship among Hindus. Section 4 defines "minor" as a person who has not completed the age of eighteen years. "Guardian" means a person having the care of the person of a minor or of his property or of both his persons and property, and inter alia includes a natural guardian. Section 2 of the Act declares that the provisions of the Act shall be in addition to, and not in derogation of 1890 Act. 17. Section 6 enacts as to who can be said to be a natural guardian. It reads thus; “6. Natural guardians of a Hindu Minor. --The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-- (a) in the case of a boy or an unmarried girl:- the father, and after him, the mother; Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl:- the mother, and after her, the father. (c) in the case of a married girl:- the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-- (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.--In this section, the expressions "father" and "mother" do not include a step-father and a step-mother. 18. Section 8 enumerates powers of a natural guardian. Section 13 is an extremely important provision and deals with welfare of a minor. The same may be quoted in extenso; 13. Welfare of minor to be paramount consideration. Explanation.--In this section, the expressions "father" and "mother" do not include a step-father and a step-mother. 18. Section 8 enumerates powers of a natural guardian. Section 13 is an extremely important provision and deals with welfare of a minor. The same may be quoted in extenso; 13. Welfare of minor to be paramount consideration. (1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. (2) No, person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor. (emphasis supplied) 19. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the Court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible. 20. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the `welfare of the child' and not rights of the parents under a statute for the time being in force. 21. The Supreme Court in the case of Nil Ratan Kundu and another Versus Abhijit Kundu, (2008) 9 SCC 413 at para 52 has observed that in deciding a difficult and complex question as to the custody of a minor, a Court of law should keep in mind the relevant statutes and the rights flowing therefrom. Further the Court held that but such cases cannot be decided solely by interpreting legal provisions. It further observed that it is a human problem and is required to be solved with human touch. The Court at para 52 has held thus:- “52 ………. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. The Court at para 52 has held thus:- “52 ………. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.” 22. Further the Supreme Court in the case of Tejaswini Gaud and others Vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42 has observed that the welfare of the minor child is the paramount consideration. The Court in para 26 & 27 reiterated the law laid down in the case of Nil Ratan Kundu and another Versus Abhijit Kundu, (2008) 9 SCC 413 . It further referred to the case of Goverdhan Lal v. Gajendra Kumar, 2001 SCC OnLine Raj 177 and has observed thus in para 26:- “26. The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child.” 23. It is well settled legal proposition that while determining the question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. It is well settled legal proposition that while determining the question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are concerned. While considering the welfare of the child, the "moral and ethical welfare of the child must also weigh with the court as well as his physical well- being". The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled by the court with care and caution with love, affection and sentiments applying human touch to the problem. Though, the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases. 24. This proposition has been laid down by the Supreme Court in case of Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 , which has been further reiterated by the Supreme Court in the subsequent case law in Ashish Ranjan v. Anupma Tandon and another, (2010) 14 SCC 274 . 25. Bearing these factors in mind, we proceed to consider as to who is fit and proper to be the guardian of the minor child Tanishq in the facts and circumstances of the present case. 26. Evidence of father/appellant – Nagendra Kumar Joshi (PW-1) would show that child was born at his in-law's place i.e. the respondent and the dispute was existing in between the parents of child i.e. of appellant with his earlier wife. He avoided the question as to whether divorce case was pending in between them, however, affirmed the fact that his first wife Anita had died on 25.06.2012, which is also proved by death certificate (Ex.D-2-C). Evidence further would show that maintenance case was pending in between them wherein maintenance was ordered to be paid to the wife & child. He avoided the question as to whether divorce case was pending in between them, however, affirmed the fact that his first wife Anita had died on 25.06.2012, which is also proved by death certificate (Ex.D-2-C). Evidence further would show that maintenance case was pending in between them wherein maintenance was ordered to be paid to the wife & child. In examination-in-chief of the father, he avoided to say or has not made whisper about his second marriage, which has only come in cross-examination. The appellant has stated that he got married to one Amrit on 06.07.2012 and out of their wedlock, two female children were born. Circumstances will speak that within a period of 12 days of death of first wife, he rushed to marry. Apart from that, in the cross-examination, he made an averment that he is unemployed and he is engaged only in the part time private job. In the cross-examination, he stated that he earned Rs.70,000/- - Rs.80,000/- per annum. 27. As against this, in the statement of Suklal Bandhe (DW-1), maternal grandfather, he stated that during the existence of first marriage, appellant – Nagendra Kumar Joshi, son-in-law, got married with Amrit , therefore, there was no attachment in between father and the son, consequently, it would not be proper for Tanishqa to be in the custody of her step mother. Narrating certain incident, it is stated that at one point of time, minor child was sent in the company of step mother, during his stay, he was not taken care properly and in the entire day, he was given tea and chips and could only get his meal at the night after arrival of his father from work. This statement is corroborated by statement of Tanishq (DW-3), who is son of appellant, wherein he stated that he was only given biscuit during the entire day and was served with meal only in the night. In the cross-examination, this fact remained unrebutted, which is also supported by Sunita Singh (DW-3). 28. With respect of the financial position, certain documents have been placed by the grandfather stating that he would be able to take care of the minor child and Sunita Singh (DW-3), who is sister of deceased Anita, had made statement that she is working as a Data Entry Operator getting a salary of Rs.15,000/- and has deposited Rs.9,00,000/- with his father in the Post Office. Consequently, submission of the appellant that he is financially well off cannot be given a weightage more while deciding the custody – qua – welfare of the child. 29. Minor child – Tanishq was examined in this case as DW-3. While he was examined on 28.05.2018, he was shown to be aged about 10 years. Perusal of such statement shows that before he was examined, certain questions were put to him by the Court and his evidence would show that the minor was old enough to form an intelligence preference to answer the question in the examination. In the examination-in-chief, he stated that he does not want to stay with his father and want to stay with Sunita Singh (DW-2) [ ekSlh ]. 30. Statement of Sunita Singh (DW-2) would show that her sister Anita while on dead bad took a promise from her sister that she will take care of the child and she has deposed in her statement that she would take care of the child. When the Statement of child is read along with statement of Sunita Singh (DW-2), it would show that the minor from many years of his tender age, after his birth, lived with the grand parents and her ekSlh and has been well cared for during that time. There is nothing on the record to show that after birth of the child in the year 2007, any effort was made by the father/appellant to protect the interest of minor, which is having a bearing upon the question of interest and welfare of the minor. Minor child - Tanishq further in his deposition had made a complaint that he was not being served with two meals and only one meal was being served in the night also raised a question of doubt about the bonafide of the appellant/father. 31. In Walker v. Walker & Harrison, 1981 New Ze Recent Law 257, which is reiterated by the Supreme Court in the matter of Anjali Kappor (Supra), following paragraph is relevant, which is reproduced below:- "welfare is an all-encompassing word. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child's own character, personality and talents." 32. Before applying the aforesaid test in the facts of this case, though the appellant tried to canvass the degree of affection of love and due care towards the child, but substantially nothing come on record except the bald statements and the incidents happened after death of first wife and proximity of marriage time does not signals out a very positive message towards child. On the other hand, the affection shown by the grand parents and ekSlh ¼cMh eEeh½ appears to be more leans in favour of minor child to be in their custody. 33. Accordingly, we are not inclined to interfere with the order passed by the learned Family Court, Durg. 34. In a recent judgment rendered in Ritika Sharan v. Sujoy Ghosh, 2020 SCC OnLine SC 878, their Lordships of the Supreme Court have held that a balance has to be drawn so as to ensure that in a situation where the parents are in a conflict, the child has a sense of security. The interests of the child are best served by ensuring that both the parents have a presence in his/her upbringing. 35. Therefore, following the principles laid down in the case of Yashita Sahu Vs. State of Rajasthan and Ors., (2020) 3 SCC 67 and in the case of Ritika Sharan (supra), we hereby order to facilitate the grant of visitation and contact right to father. The following arrangement shall be drawn by both the appellant and the respondent :- (i) The appellant/ father would be able to engage with the child on a suitable video conferencing platform for one hour every Saturday and Sunday and 5- 10 minutes on other days. (ii) Both the appellant/father and the respondent in order to facilitate the video conferencing in between father and the child shall procure smart phones which would facilitate the inter-se video calling. (ii) Both the appellant/father and the respondent in order to facilitate the video conferencing in between father and the child shall procure smart phones which would facilitate the inter-se video calling. (iii) Since both the parties are living in the same district, we direct that on a fortnight basis on the working Saturday the child would be produced before the Family Court, Durg at about 10.30 to 11 a.m. by the respondent. Wherefrom the child may be taken by the father for entire day and shall be returned in between 4.30 to 5 pm before the family Court to enable the respondent to get back the custody. (iv) During the long holiday/vacation covering more than two weeks, the child would be allowed to be in the company of the father for a period of 7 days and to facilitate the same, the curriculum of the School/holidays shall be placed before the Family Court, Durg, which shall also be ensured that academic pursued of the child may not be disturbed. (v) During the festival Dussehra, Diwali and Holi, the father may join the company of the child either at place of respondent or in an independent venue for a limited period of time 1-2 hours for a day. The father would intimate place of venue through the intervention of the family Court well before time. 36. With the aforesaid observations & directions, the appeal stands disposed of.