JUDGMENT : N.K. CHANDRAVANSHI, J. 1. This appeal has been preferred by the appellant against order dated 24-7-2017 passed by the Family Court, Baikunthpur Distt. Korea (CG) in Misc. Criminal Case No. 13/2016 (CIS No. 6/2017) whereby application filed by the appellant/husband under Section 7 of the Guardianship and Wards Act, 1890 (hereinafter referred to as ‘the Act 1890’) read with Section 6 of Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as ‘the Act 1956’) for grant of custody of his minor son, was dismissed. 2. Facts of the case, in brief, are that marriage of the appellant/husband was solemnized with respondent/wife on 7-5-2009. They have been blessed with a son namely Ashish, who was aged about 6 years at the time of filing of the application. It is alleged that the respondent/wife lived with the appellant only for about 10 months, thereafter, she left company of appellant and efforts made by the appellant to bring her back went in vain and she is residing with her parents at their village. It has been further pleaded that on an application being filed by the respondent, earlier the husband was giving Rs. 1,500/- per month for her maintenance, which was subsequently increased to the tune of Rs. 1,700/- per month. Thus, she is not having source of income to maintain herself and their son, whereas the appellant is having government job and he is natural father of the child. Hence, he can take better care for welfare of their child in respect of his study, health and other needs of life, therefore, the appellant has requested to give custody of their minor child Ashish from respondent/wife. 3. In reply, the respondent/wife has accepted that she is residing along with her child in her parental home at village Dhodibahra, where she delivered their son Ashish, but she has been compelled by the appellant to part him, as she was subjected to cruelty on various counts by the appellant. After delivery of child, appellant has never come to meet them, divorce proceeding is also going on between them. Appellant has never taken care of them and when she filed maintenance application, only thereafter, he is giving amount of maintenance and only to escape from paying maintenance to them, he has filed aforesaid application. After delivery of child, appellant has never come to meet them, divorce proceeding is also going on between them. Appellant has never taken care of them and when she filed maintenance application, only thereafter, he is giving amount of maintenance and only to escape from paying maintenance to them, he has filed aforesaid application. She has further pleaded that she is mother of the child, capable to maintain him and taking proper care of him, therefore, the application filed by the appellant is liable to be rejected. 4. In respect of his pleading, appellant examined himself as PW-1, and Secretary of their social forum Sanjay Kumar Kurre as PW-2. Respondent has examined herself as DW-1 and her father Pati Narayan as DW-2. 5. Learned Family Court, after appreciating and evaluating the evidence adduced by both the parties, dismissed the application filed by the appellant after holding that welfare and betterment of child is much more safe with his mother, as father was not found to be responsible towards their child. 6. Learned counsel for the appellant would submit that at the time of filing of application, age of child was about 6 years, thus he had become a school going boy, but he is residing along with her mother at village Dhodhibahra where school facility is not good and respondent is not only an illiterate house lady, but also she has no source of income to maintain her own and their son’s livelihood, as she is maintaining herself and the child only from the amount of maintenance, given by the appellant, whereas the appellant is posted as Health Worker (Male) in the health department and taking monthly salary. Efforts made by the appellant to bring back the respondent and their child have gone in vain, as not only the respondent refused to reside with the appellant, but she also denied to send their child with the appellant. Appellant lives at village Churcha, which is a municipal area and he wants to get admitted his child in Central School or St. Appellant lives at village Churcha, which is a municipal area and he wants to get admitted his child in Central School or St. Joseph School, Baikunthpur for his better study and better future, but these aspects which have been proved by the appellant and his witness, have not been properly considered by learned Family Court and only on the basis of assumption, it has dismissed his application, therefore, the impugned order is liable to be set aside by allowing this appeal and custody of child may be given to the appellant. 7. Per contra, learned counsel for the respondent would submit that due to physical and mental torture meted out to the respondent by the appellant and his family members, she has been compelled to live separately. Even when the child Ashish was in womb, at that time also, appellant tried to abort his wife. The respondent delivered child at her parental home, but appellant never came there to see him, rather he had alleged that he is not his child. It is further submitted that appellant has never taken care of respondent and their son on any count and he has started giving maintenance to them only after order of the Court. His such conduct shows that he is not a responsible father and he has no affection with the child. He has filed this application only after the order of maintenance was passed by the Court, which has now been increased to the tune of Rs. 4,000/- per month. Thereafter, he filed present application for custody of child only to avoid giving maintenance to them. It is further submitted that the impugned order does not suffer from any infirmity or illegality. Hence, the appeal is liable to be dismissed. 8. We have heard learned counsel for the parties and perused the impugned order, record of the Court below, and the documents annexed with the appeal. 9. The statute which deals with the situation under consideration, 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 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. 10. Guardian means a person having 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. 10. 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. (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.” 11. Section 8 of the Act, 1890 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) 12. Section 19 prohibits the Court from appointing guardians in certain cases. 13. Chapter III (Sections 20 to 42) prescribes duties, rights and liabilities of guardians. 14. The Hindu Minority and Guardianship Act, 1956 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. 15. 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. (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.” 16. 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.” 16. 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) 17. 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. 18. 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. 19. The Supreme Court in the case of Nil Ratan Kundu and Another vs. 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.” 20. 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 and 27 reiterated the law laid down in the case of Nil Ratan Kundu and Another vs. Abhijit Kundu, (2008) 9 SCC 413 . It further referred to the case of Goverdhan Lal vs. 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.” 21. 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. 22. This proposition has been laid down by the Supreme Court in case of Gaurav Nagpal vs. Sumedha Nagpal, (2009) 1 SCC 42 which has been further reiterated by the Supreme Court in the subsequent case law in Ashish Ranjan vs. Anupma Tandon and Another, (2010) 14 SCC 274 . 23. Taking into consideration aforesaid legal proposition, now we see in the instant case as to who is fit and proper to be a guardian of minor child Ashish in the facts situation of the instant case. 24. It is not in dispute that marriage between the parties was held on 7-5-2009 and after about 10 months/1 year, respondent left company of the appellant. It is also not in dispute that having blessed with a child Ashish, who was aged about 6 years at the time of filing of application for his custody, respondent is residing along with her mother in her parental home at village Dhodibahra. It is also not in dispute that the appellant is in a government job i.e. Health Worker (Male) in the Department of Health. 25. It is also not in dispute that the appellant is in a government job i.e. Health Worker (Male) in the Department of Health. 25. Appellant Sanjay (PW-1) and his witness Sanjay Kumar Kurre (PW-2) have stated in their deposition that appellant lives at village Churcha which is municipal area, he is in government job and has income. He has also stated that he wants to get admitted their child in Central School or St. Joseph School, Baikunthpur and only on that basis, he has claimed custody of child. 26. As per evidence of respondent Sukwaria (DW-1) and her father Pati Narayan (DW-2), when child Ashish was in her mother’s womb, at that time, appellant had tried to abort her by injecting injection saying that it was not his child. They have also stated that after delivery of child, the appellant has never come to meet or see him, these facts remained un-rebutted in their cross-examination. Although, appellant has stated in his deposition that he tried to talk with the child when he came with respondent/ mother at the time of hearing in the Court, but respondent did not facilitate and she abused him and threatened to implicate him in a case, but he has admitted in his cross-examination that he has never made any application before the Court to meet the child. Thus, it is apparent from evidence that appellant neither went to meet or to see his child even after the delivery nor he has made any effort to talk with the child, rather, he had tried to abort his wife when the child was in womb. Thus, facts do not show any affection or attachment of appellant with child Ashish. 27. Although appellant is in government job and is getting salary and also he resides in municipal area, and on the other hand, respondent is not having any source of income and they are getting maintenance from the appellant, but her father DW-2 Pati Narayan (DW-2) has specifically stated that being father, they are taking care of respondent and her child, respondent has also stated that Ashish is studying in KG-II in Holy Palace English Medium School, Salka. Hence, considering the conduct and behaviour of appellant towards child and more particularly, the statement of respondent and her father that the appellant had tried to abort his wife by saying that it is not his child and also considering the fact that earlier he has never taken care of them and such application is filed only after passing of order of maintenance in favour of the respondent and her child, which has now been increased to Rs. 4,000/- per month, as has been stated by DW-2 Pati Narayan, it is not found proved that appellant has any care, affection or attachment towards his child Ashish. 28. Looking to the aforesaid irresponsible behaviour and conduct of appellant, child Ashish cannot be given in his custody only because he is natural father and he is doing government job. As has been stated in preceding paragraphs that in a case of custody of child, Court is not bound by the mere legal right of the parents or guardian, rather, welfare of minor child is paramount consideration. As has been observed in the instant case, the appellant has never been found affectionate or responsible towards his child Ashish. Therefore, in such a situation, it is not found proper to give custody of child Ashish to appellant. 29. In view of above discussion, we find that the order impugned passed by the Family Court does not suffer from any infirmity or illegality. 30. In the case of Ritika Sharan vs. 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. 31. Therefore, following the principles laid down in the case of Yashita Sahu vs. State of Rajasthan and Others, 2020 (3) SCC 67 and in the case of Ritika Sharan (supra), we hereby order to grant visitation right to appellant father. It is directed that on every Sunday, the appellant may meet the child for 4 hours i.e. from 12.00 noon to 4.00 pm at the respondent’s place or at the place agreed to between the parties, subject to condition that if the child wants to meet his father. 32. It is directed that on every Sunday, the appellant may meet the child for 4 hours i.e. from 12.00 noon to 4.00 pm at the respondent’s place or at the place agreed to between the parties, subject to condition that if the child wants to meet his father. 32. With the aforesaid observations and directions, the appeal stands disposed of.