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2025 DIGILAW 1434 (JHR)

Mukesh Kumar Singh, S/o. Binay Kumar Singh v. Anchal Singh, D/o. Alok Kumar Singh, W/o Mukesh Kumar Singh

2025-06-17

RAJESH KUMAR, SUJIT NARAYAN PRASAD

body2025
JUDGMENT : Sujit Narayan Prasad, J. Prayer: 1. The instant appeal, under Section 19(1) of the Family Court Act, 1984, is directed against the order/judgment dated 31.03.2023 and decree dated 10.04.2023, passed by the learned Principal Judge, Family Court, Pakur in Original Suit No. 02 of 2021, whereby and whereunder the learned Principal Judge held the appellant not entitled for a decree under Section 5 of the Guardians and Wards Act, 1890 and refused to handover the custody of child Arnav Kumar Singh to the plaintiff/appellant by dismissing the suit. Brief facts of the case 2. The brief facts of the case, as per the pleading made in the instant appeal, needs to be referred herein as under: 3. The appellant was married with the respondent on 25.02.2015 at the residence of respondent in Railway Colony at Jamshedpur whereafter the parties lived like husband and wife and through their wedlock a male child was born on 18.12.2015, namely, Arnav Kumar Singh. 4. It is alleged by the plaintiff-appellant that the respondent has got illicit relation with one Suraj Mahto of Jamshedpur which was not known by his family members and after marriage, respondent’s father used to come to Pakur with his wife several times. It is further alleged that the respondent used to talk on Telephone with said Suraj Mahto and the appellant was under the impression that he may be one of the relatives. 5. It is further stated that at Pakur the said child Arnav Singh used to go to school while his parents used to live at Pakur as spouse. Due to illicit relation, one day the respondent left the house of plaintiff-appellant and fled away with that Suraj Mahto and took gold ornaments and several lacs of rupees of appellant also. When the appellant came to know about the occurrence, he filed a case U/s 366, 379/34 of IPC which was registered as Pakur (T) P.S. case No. 107/2019. In this case respondent, Anchal Singh and the said Suraj Mahto both were arrested and remanded into custody and later on they were released on bail. At present the appellant came to know that the respondent is living and leading a conjugal life as husband and wife with Suraj Mahto. 6. In this case respondent, Anchal Singh and the said Suraj Mahto both were arrested and remanded into custody and later on they were released on bail. At present the appellant came to know that the respondent is living and leading a conjugal life as husband and wife with Suraj Mahto. 6. It is further stated that the said child Arnav Singh is aged about more than 10 years since the date of birth and the natural guardian of the child is the appellant and he is entitled to get the custody of child because he was not well nourished there and the appellant want to get the child custody and want to make him a good citizen of this country by giving proper education to him. 7. Accordingly, plaintiff/appellant had preferred Original Suit for custody of his child being Original Suit No. 02 of 2021. 8. On being noticed, the respondent-wife appeared before the family court and filed written statement. The defendant-wife has stated in the written statement that there is no cause of action for filing the suit and the suit is not maintainable in its present form. Further the suit is nothing but a dishonest attempt to disturb the life of respondent to snatch the minor child from the custody of mother. The respondent has further submitted that it is true that the father of the respondent used to come to the house of the petitioner time to time to visit her daughter but it is totally false to say that the father of the respondent used to come with Suraj Mahto. The said Suraj Mahto never came to the house of the petitioner either alone or along with respondent’s father and the petitioner is only blaming to the respondent to get rid of from the trap of the respondent with a view to save himself from the case of maintenance filed under Section 498A IPC. 9. It is further submitted by the respondent that there was no connection with Suraj Mahto from the very beginning till date and it is true that the respondent is the legally married wife of the appellant and their marriage was solemnized on 25.02.2015 as per Hindu customs and rights and at the time of marriage the parents of the petitioner has given a sum of Rs. 3,00,000/- for the expense of marriage apart from this her father has also given house-hold things and ornaments of gold and other articles as well. 10. The respondent has further submitted that after the marriage the respondent went to the house of the petitioner and led peaceful conjugal life up-to only 6 months and thereafter the appellant and his family members began to torture the respondent mentally and physically and began to assault her by fist and slap. The petitioner and his other family members began to demand a sum of Rs. five lac from her parents as because the appellant and his parents are not satisfied from the gift given by the parents of the respondent and on denial made by her showing the inability, the petitioner and his parents used to assault by fist and slap and on 19.04.2019 drove her out from his house and managed to lodge a false case against respondent by showing the power of patrakar (journalist) alleging false and baseless allegations and under his influence the petitioner manage to institute a Pakur (Town) P.S. Case No. 107/2019 U/s 366, 379/34 of IPC against the respondent and one Suraj Mahto and later on lodged a PCR Case against the appellant and his family members in court of Jamshedpur. 11. It is further submitted that earlier she was under the impression that everything will be settled as such she did not lodge any case in order to save the prestige of both the family. The respondent has specifically denied that she has any connection with said Suraj Mahto or she fled away with him by taking the ornaments and several lacs of rupees and the respondent is leading a deserted life with the minor child who is the only hope of life and the respondent is still the wife of the appellant and she also wants to live with him but the appellant wanted to get away from the respondent. 12. 12. The respondent has further asserted that her son Arnav Kumar Singh is reading in class LKG at East Singhbhoom and the respondent is regularly working hard for the better future of his son and further the respondent is the legal and natural guardian of minor since the year 2019 and the respondent is taking proper care of her son Arnav Kumar Singh whereas the appellant never take any care of the respondent or his son. Respondent further stated that the plaintiff has got no valid cause of action for the suit and the suit of the plaintiff (appellant herein) be dismissed outrightly. 13. The learned family court, on the basis of pleading available on record, framed the issues, and evidence was led on behalf of parties. The learned family court, based upon consideration of principle of handing over the minor child to the father, and the evidence led on behalf of parties, dismissed the suit, against which, the instant appeal has been preferred by the plaintiff-appellant. Submission of learned counsel for the appellant 14. The learned counsel for the appellant-father has taken the following ground in assailing the impugned order passed by the learned family court. 15. It has been submitted that the learned family court has not taken into consideration the vital aspect of the matter that the father is the natural guardian and as such the said observation is nothing but a ridiculous one in view of the fact that the father is the natural guardian of the child, therefore, the child at least be in joint custody of both the parents. 16. Further submission has been made that the respondent-mother is not in a position to take care of the minor child since she is house-wife having no source of income which the respondent has admitted in her deposition that she is living in a miserable condition. 17. Further ground has been taken that the respondent has fled away with another person, namely, Suraj Mahto, who later on was arrested by the police in case of theft, which shows the character of respondent as such in that pretext it is quite impossible for the respondent to take care of the child. But the learned family court has failed to appreciate the fact that such act of her mother can create a physiological and mental effect on the child. 18. But the learned family court has failed to appreciate the fact that such act of her mother can create a physiological and mental effect on the child. 18. In support of his submission, learned counsel for the appellant-father relying upon the judgment rendered by Hon?ble Apex Court in the case of Gautam Kumar Das vs. NCT of Delhi & Ors [SLP (Cr.) No. 5171 of 2024] has submitted that appellant being a natural guardian cannot be made to run from pillar to post to seek the custody of his own child and the Hon?ble Apex Court considering these aspects of the matter directed to hand over the custody of the minor child forthwith to father. 19. The learned counsel for the appellant based upon the aforesaid ground has submitted that since there is no consideration of these facts by learned trial court, as such the impugned judgment requires interference by this Court. Submission of learned counsel for the respondent: 20. Per contra, Mr. Jitendra Tripathi, learned counsel for the respondent has taken the following ground in defending the order passed by the learned family court. 21. It has been submitted that the impugned judgment needs no interference by this Court and the argument which has been advanced that the father is the natural guardian will not be applicable herein rather the welfare of the child is required to be considered which has well been considered by learned family court. 22. The learned family court has given due consideration of the fact that the child since birth is with the mother, the respondent herein and also studying in a good school and as such, the learned family court taking into consideration the welfare of the child and also considering the fact that the child since birth is living with mother, has denied the custody to be given to the father. 23. Learned counsel for the respondent has specifically denied the allegation that the respondent has fled away with any person. 24. The learned family court based upon the aforesaid ground and on consideration of the aforesaid fact has passed the impugned judgment which requires no interference by this court. Analysis 25. We have heard learned counsel for the parties and gone through pleading available on record as also the finding recorded by learned family court. 26. 24. The learned family court based upon the aforesaid ground and on consideration of the aforesaid fact has passed the impugned judgment which requires no interference by this court. Analysis 25. We have heard learned counsel for the parties and gone through pleading available on record as also the finding recorded by learned family court. 26. This Court, before going to examine as to whether the finding recorded by learned family judge in denying the custody of the minor child to the father, the appellant herein, requires interference needs to refer herein the provision of law as provided under the HINDU MINORITY AND GUARDIANSHIP ACT , 1956 and as also the Guardians and Wards Act, 1890. 27. Section 6 of the HINDU MINORITY AND GUARDIANSHIP ACT , 1956 deals with natural guardian of a Hindu minor, Section 9 thereof deals with the testamentary guardians and their powers and Section 13 deals with the provision of welfare of the minor to be paramount consideration. For ready reference, these provisions are quoted as under: “ 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 by 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. 9. Explanation.—In this section, the expressions “father” and “mother” do not include a step-father and a step-mother. 9. Testamentary guardians and their powers .—(1) A Hindu father entitled to act as the natural guardian of his minor legitimate children may, by will appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section 12) or in respect of both. (2) An appointment made under sub-section (1) shall have no effect if the father predeceases the mother, but shall revive if the mother dies without appointing, by will, any person as guardian. (3) A Hindu widow entitled to act as the natural guardian of her minor legitimate children, and a Hindu mother entitled to act as the natural guardian of her minor legitimate children by reason of the fact that the father has become disentitled to act as such, may, by will, appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property (other than the undivided interest referred to in section 12) or in respect of both. (4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate children may; by will, appoint a guardian for any of them in respect of the minor’s person or in respect of the minor’s property or in respect of both. (5) The guardian so appointed by will has the right to act as the minor’s guardian after the death of the minor’s father or mother, as the case may be, and to exercise all the rights of a natural guardian under this Act to such extent and subject to such restrictions, if any, as are specified in this Act and in the will. (6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage. 13. Welfare of minor to be paramount consideration . (1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. (6) The right of the guardian so appointed by will shall, where the minor is a girl, cease on her marriage. 13. Welfare of minor to be paramount consideration . (1) In the appointment of 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.” 28. It needs to refer herein that the word 'after' as used in Section 6 (a) can be construed so as to save it from being unconstitutional the presumption being that the legislature acted in accordance with the constitution. Moreover, when Sections 4 and 6 of the HINDU MINORITY AND GUARDIANSHIP ACT are construed harmoniously the word 'after' can be understood to mean 'in the absence of', thereby referring to father’s absence from the care of the minor’s property or person for any reason whatever. Hence, in such situations mother can act as natural guardian of the minor during the lifetime of the father, who would be deemed to be 'absent' reference in this regard may be taken from the judgment rendered by the Hon?ble Apex Court in the case of Githa Hariharan v. Reserve Bank of India , (1999) 2 SCC 228 . 29. It is evident from Section 13 that while appointing any person as guardian of a Hindu minor the paramount consideration is the welfare of the minor and 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. 30. The matter to be considered by the Court in appointing guardian has been made under the provisions of Guardians and Wards Act, 1890. For ready reference, the relevant provision of the Act, 1890 is quoted as under: “4. 30. The matter to be considered by the Court in appointing guardian has been made under the provisions of Guardians and Wards Act, 1890. For ready reference, the relevant provision of the Act, 1890 is quoted as under: “4. (1) “minor” means a person who, under the provisions of the Indian Majority Act, 1875, (9 of 1875) is to be deemed not to have attained his majority: (2) “guardian” mean’s a person having the care of the person of a minor or of his property, or of both is person and property: 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. (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. 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. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. 1 * * * * * (5) The Court shall not appoint or declare any person to be a guardian against his will.” 31. The law, therefore, is well settled that even though the father is the natural guardian as stipulated in the statute but the paramount consideration in the matter of handing over the custody of the child is welfare of the child. 32. The law relating to custody of minors has received an exhaustive consideration by the Hon?ble Apex Court in a series of pronouncements. In the case of Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 the principles of English and American law in this regard were considered by Hon?ble Apex Court to hold that the legal position in India is not in any way different. Noticing the judgment of the Bombay High Court in Saraswatibai Shripad Ved v. Shripad Vasanji Ved [AIR 1941 Bom 103] , Rosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840 and Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka (1982) 2 SCC 544 , the Hon?ble Apex eventually concluded in paras 50 and 51 which reads as under: “50. [T]hat when the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli case [Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673 ] , the court has to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others. 51. The word 'welfare' used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. They are equal if not more important than the others. 51. The word 'welfare' used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents and 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.” 33. Thus, the Hon?ble Apex Court has categorically held that while considering the issue of custody of the minor child the court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. Further it has been held that the Court should not emphasis only on what the parties say rather the welfare of the minor should be paramount consideration. Further the Hon?ble Apex Court has opined that the Court has to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. 34. The Hon?ble Apex Court in the aforesaid Judgment interpreted the word 'welfare' used in Section 13 of the Act and has observed that it must be taken in its widest sense, though the provisions of the special statutes which govern the rights of the parents and 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. 35. It needs to refer herein that in child custody matters, the court’s "parens patriae" jurisdiction empowers the Court to act as a guardian for the child, prioritizing their best interests above all else. This principle, allows the court to intervene and make decisions that protect the child’s welfare, even if it means overriding the wishes of the parents or guardians. 36. In the case of Nil Ratan Kundu v Abhijit Kundu , 2008 (9) SCC 413 the Hon?ble Apex Court has held 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. 36. In the case of Nil Ratan Kundu v Abhijit Kundu , 2008 (9) SCC 413 the Hon?ble Apex Court has held 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. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. 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. 37. In the case of Yashita Sahu v State of Rajasthan , (2020) 3 SCC 67 , the Hon?ble Apex Court has propounded that the welfare of the child is paramount in matters relating to custody. In this context, we may refer to Para 22 thereof, which reads as follows: 22. A child, especially a child of tender years requires the love, affection, company, protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation, every reunion may have a traumatic and psychosomatic impact on the child. A child is not an inanimate object which can be tossed from one parent to the other. Every separation, every reunion may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what matter the custody of the child should be shared between both the parents. Even if the custody is given to one parent the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. Reasons must be assigned if one parent is to be denied any visitation rights or contact with the child. Courts dealing with the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights.’ 38. In the case of Gaytri Bajaj v. Jiten Bhalla , (2012) 12 SCC 471, the Hon?ble Apex Court has observed that it is the welfare and interest of the child and not the rights of the parents which is the determining factor for deciding the question of custody and the question of welfare of the child has to be considered in the context of the facts of each case and decided cases on the issue may not be appropriate to be considered as binding precedents. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under: 14. From the above it follows that an order of custody of minor children either under the provisions of the Guardians and Wards Act, 1890 or the HINDU MINORITY AND GUARDIANSHIP ACT , 1956 is required to be made by the court treating the interest and welfare of the minor to be of paramount importance . It is not the better right of either parent that would require adjudication while deciding their entitlement to custody. It is not the better right of either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the parent concerned to take care of the child are some of the relevant factors that have to be taken into account by the court while deciding the issue of custody of a minor. What must be emphasised is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the court. 39. It is settled position of law that there cannot be any straitjacket formula in the matters of custody. 'Welfare of the child' is of paramount importance, reference in this regard may be taken from the judgment rendered by the Hon?ble Apex Court in the case of Gautam Kumar Das v. State (NCT of Delhi), (2024) 10 SCC 588 . 40. In the case of Shazia Aman Khan v. State of Orissa (2024) 7 SCC 564 the Hon?ble Apex Court while referring the ratio of Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 has observed that welfare of the children is to be seen and not the rights of the parties, the relevant paragraph of the aforesaid judgment is being quoted as under: 19. In Nil Ratan Kundu v. Abhijit Kundu [Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 ] , this Court laid down the principles governing custody of minor children and held that welfare of the children is to be seen and not the rights of the parties by observing as under : (SCC pp. 428-29, paras 52 & 55) “Principles governing custody of minor children 52. In our judgment, the law relating to custody of a child is fairly well-settled and it is this. In deciding a difficult and complex question as to the custody of minor, a court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. In deciding a difficult and complex question as to the custody of minor, a court of law should keep in mind relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. 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. *** 55. We are unable to appreciate the approach of the courts below. This Court in a catena of decisions has held that the controlling consideration governing the custody of children is the welfare of children and not the right of their parents.” (emphasis supplied) 21. This Court in Roxann Sharma v. Arun Sharma [Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318 : (2015) 4 SCC (Civ) 87] , opined that the child is not a chattel or ball that it is bounced to and fro. Welfare of the child is the focal point. Relevant lines from para 18 are reproduced hereunder : (SCC p. 328) “18. … There can be no cavil that when a court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child’s welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons.” 20. It is only the child’s welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons.” 20. This Court has consistently held that welfare of the child is of paramount consideration and not personal law and statute. In Ashish Ranjan v. Anupma Tandon [Ashish Ranjan v. Anupma Tandon, (2010) 14 SCC 274 : (2011) 4 SCC (Civ) 948] , this Court held as under : (SCC p. 282, para 19) “19. The statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.” 22. Another principle of law which is settled with reference to custody of the child is the wish of the child, if she is capable of. Reference can be made to Rohith Thammana Gowda v. State of Karnataka [Rohith Thammana Gowda v. State of Karnataka, (2022) 20 SCC 550 : 2022 SCC OnLine SC 937] case. It was held as under : (SCC para 18) “18. We have stated earlier that the question 'what is the wish/desire of the child' can be ascertained through interaction, but then, the question as to 'what would be the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances. A careful scrutiny of the impugned judgment would, however, reveal that even after identifying the said question rightly the High Court had swayed away from the said point and entered into consideration of certain aspects not relevant for the said purpose. We will explain the raison d'etre for the said remark.” 41. Thus, from the aforesaid settled position of law it is evident that the consideration governing the custody of children is the welfare of the children” and not the rights of the parties.” Further, the welfare of child is determined neither by economic affluence nor a deep mental or emotional concern for the well-being of the child. The answer depends on the balancing of all these factors and determining what is best for child’s total well-being. 42. The answer depends on the balancing of all these factors and determining what is best for child’s total well-being. 42. In the backdrop of the provisions of law and judicial pronouncements, in order to assess the welfare of the minor child, we have gone through the oral evidence adduced by the parties. 43. P.W.1, Vinay Shankar Singh, who is the father of the plaintiff-appellant, has stated in his examination-in-chief that Mukesh Kr. Singh-appellant is his son who solemnized marriage with Anchal Singh in the year 2015 at Jamshedpur. From their conjugal life one son namely Arnav Kumar born. After the birth of the child they took Anchal Singh to their house at Pakur. Arnav Kumar, the minor child, started studying at the vicinity (Mohalla) school. Thereafter Anchal Singh took her articles, ornaments and fled with a boy Suraj Mahto a resident of Jamshedpur and she also took Arnav Kumar with her. During cross-examination he stated that his son is doing the journalism. 44. P.W.-2 Mukesh Kumar Singh, who is the plaintiff-appellant, has stated in his examination-in-chief that his marriage was solemnized with Anchal Singh in the year 2015 at Jamshedpur. After marriage Anchal came at her matrimonial house. From their conjugal life a son namely Arnav Singh born on 18.12.2015 at Jamshedpur. Anchal Singh lived with him for about 4 years and 3 months. Thereafter she fled with other boy namely Suraj Mahto and at the time of fleeing she took all her ornaments and articles. His son Arnav Singh was living with his mother. During cross-examination he admitted that now he is unemployed and he is a farmer and he has ancestral property. He lodged a case in the year 2019 regarding eloping of his wife and he filed the instant suit for guardianship in the year 2021. In para-12 & 13 he further stated that he has not written in his plaint that his wife has illegal relationship with Suraj Mahto and also not written that Suraj Mahto visited his house occasionally with his father in law. 45. P.W.-3 , Munni Devi is the mother of the plaintiff-appellant, who has stated in her examination-in-chief that Mukesh Kr. Singh is her son and marriage of her son was solemnized with Anchal Singh on 25.02.2015 at Jamshedpur. From their conjugal life one son namely Arnav Kumar was born and now aged about 7 years and presently in custody of defendant. P.W.-3 , Munni Devi is the mother of the plaintiff-appellant, who has stated in her examination-in-chief that Mukesh Kr. Singh is her son and marriage of her son was solemnized with Anchal Singh on 25.02.2015 at Jamshedpur. From their conjugal life one son namely Arnav Kumar was born and now aged about 7 years and presently in custody of defendant. Thereafter Anchal Singh took her articles, ornaments and fled with a boy Suraj Mahto and she also took Arnav Kumar with her. She is leading conjugal life with her new husband. Her son want to divorce with his wife and also wants to take custody of the son as her son is the natural guardian of the Arnab Singh. 46. On behalf of respondent, the respondent-wife herself has been examined as D.W. 1 who has stated in her examination in chief that she has admitted that her marriage was solemnized with Mukesh Kumar Singh on 25.02.2015 according to Hindu rites and rituals at Jamshedpur. After marriage she lived in her matrimonial house about one year quite well. In the meantime she gave birth to her son Arnab Kr. Singh. After birth of her son, her husband, father in law, mother in law and Dewar subjected her to torture and demanded Rs. 5 lakh from her father. When she was unable to pay Rs. 5 lakh then her husband, dewar, father-in-law and mother-in-law subjected her to cruelty and torture by physically and mentally and lastly on 19.04.2019 they assaulted her and snatched all the ornaments and ousted from their house. Only for saving their skin, they filed the instant suit on the basis of false allegations made against her. She has further deposed that she wants to lead conjugal life with her husband and on that account she does not lodge any case against her in laws and husband. In the year 2022 when she felt that her husband was not in favour of compromise and wants to divorce her so that he can solemnize second marriage then she filed a complaint case on 14.06.2022 before the court of learned CJM, Jamshedpur being case no. 3563/2022. In the year 2022 when she felt that her husband was not in favour of compromise and wants to divorce her so that he can solemnize second marriage then she filed a complaint case on 14.06.2022 before the court of learned CJM, Jamshedpur being case no. 3563/2022. Her husband is a journalist and he has a good relation with police and administration but he was always in financial crunch and crisis and for that reason her husband made altercation with her daily at the house and he always tortured her for sake of the dowry. 47. She has specifically deposed that does not know Suraj Mahto and her family members. All the allegation made by her husband are false, concocted and without any basis. She is now living in her father’s house in very miserable condition with her son Arnav Kumar. Her husband wants to leave her so he filed the instant suit on the basis of false allegation. Her father is senior technician at railway department and her father withdraw salary of Rs. 43,500/- per month. Her son is studying at East Point High School English Medium at Jamshedpur and her son studies in UKG Class. She is the natural and lawful guardian of her. During cross-examination she stated that on 19.04.2019. She did not flee with her child with the ornaments from the house but her in-laws drove her out from the house after assaulting her. Her husband has lodged a case against her regarding elopement. She wants to live with Mukesh Singh as husband and wife. It is further submitted that earlier she was under the impression that everything will settled so she did not lodge any case with a view the save the prestige of both the family. It is further submitted that the respondent has got no connection with Suraj Mahto nor she fled away with him by taking the ornaments and several lac of rupees. 48. As per the evidence led by the parties, it is evident that the minor child is living with the respondent-mother since birth and studying in a good school and to that effect evidence has been led. The child is now more than 9 years old and at the time of institution of case he was 5 years old. Further, the fact about the minor child living with the mother is not in dispute. 49. The child is now more than 9 years old and at the time of institution of case he was 5 years old. Further, the fact about the minor child living with the mother is not in dispute. 49. The claim of the father that he is the natural guardian and as such the custody of the minor child ought to have been handed over in his favour has been discarded by the learned family court on the ground that the minor child since his birth is living with his mother, who is living in her parental house. 50. Further, Section 13 of the HINDU MINORITY AND GUARDIANSHIP ACT , 1956 is very specific wherein the welfare of the minor has been considered to be of paramount bearing, meaning thereby, if the dispute is in between the guardian, even then the father is the natural guardian then the welfare of the children is required to be considered. 51. The law has been propounded by Hon?ble Apex Court, as taken note of above, that the welfare of the child is paramount consideration while handing over the custody of the minor and herein the fact is admitted that the minor child is studying under the custody of the mother, who is living in her parental house in the district of pakur, hence there is no issue of determent to the child. 52. There is no denial of the fact that the father is the natural guardian as stipulated in the statute but the paramount consideration in the matter of handing over the custody of the child is welfare of the child as per the settled proposition of law which has been settled by the Hon?ble Apex Court. 53. Therefore, in the backdrop of above facts and statute, this Court is to examine whether in the hands of appellant-father the welfare of the child is better than that of respondent-mother. 54. So far income of the appellant-father is concerned, he in cross-examination has deposed that now he is unemployed. The father of the appellant, who has been examined as P.W. 1 has deposed that his son [appellant] is doing journalism and he cannot say how much money he earns. D.W. 1-the respondent-wife has stated that her father is senior technician in railway and is taking care of upbringing the child. 55. The father of the appellant, who has been examined as P.W. 1 has deposed that his son [appellant] is doing journalism and he cannot say how much money he earns. D.W. 1-the respondent-wife has stated that her father is senior technician in railway and is taking care of upbringing the child. 55. So far fleeing away of the respondent from her matrimonial house is concerned, it has been deposed by P.W. 3, the mother-in-law of the respondent, that when the respondent- Anchal Singh fled away from the house, she and her husband was not in the house. 56. So far, the allegation of eloping with another person, namely, Suraj Mahto is concerned, though allegation has been made by the appellant-husband but it has specifically been denied by the respondent-wife and she has deposed that she is living with her parents. 57. Further, admittedly herein, the minor child Arnav Kumar Singh is studying in a good school at Jamshedpur and the appellant-father did not bear a penny on the study or upbringing of the child. 58. Therefore, it is evident that the welfare of the child is well being taken care of by the mother as such it will not be proper to hand over the custody of the minor child to the father, who has never been with the minor child which is the admitted case since the husband and wife are living separately in two different districts i.e., the husband is living in Jamshedpur while the wife is living in Pakur. 59. Having considered all the evidences on the record which cumulatively show that minor child, in this very young age would not be comfortable in the guardianship of appelant/father in absence of her mother’s company and as welfare of minor is supreme consideration where very factor of financial consideration of father better than mother would be of no consequence, this court is led to irresistible conclusion that plaintiff’s prayer for grant of guardianship of minor child in his favour without and against his mother does not deserve to be allowed. 60. Furthermore, the case law cited by learned counsel for the appellant Gautam Kumar Das vs. NCT of Delhi & Ors (supra) is no help to the appellant in view of the fact that facts of that is case is totally different to that of present one. 60. Furthermore, the case law cited by learned counsel for the appellant Gautam Kumar Das vs. NCT of Delhi & Ors (supra) is no help to the appellant in view of the fact that facts of that is case is totally different to that of present one. In that case, when the child was 10 days, the mother died due to Covid-19 infection and the child was with the sister- in-law [respondent no. 5 therein], custody of which was prayed by the father the Hon?ble Court held that the father being the natural guardian, for welfare of the child the custody of the child was given to him. But herein the facts are totally different, as discussed above. 61. This Court after discussing the aforesaid factual aspect along with the legal position and adverting to the consideration made by the learned Family Judge in the impugned judgment has found therefrom that the issue of giving custody of minor son has well been considered along with the evidence as well as from the pleadings made in the plaint and the written statement. The learned Family Judge on consideration of the evidence, has come to the conclusion that the minor son would not be comfortable in the guardianship of the appellant herein and the aforesaid reason has led the learned Family Judge to dismiss the suit. 62. This Court is conscious with the settled proposition of law as has been settled by the Hon’ble Apex Court in the case of Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha , (1980) 2 SCC 593 that “an appellate power interferes not when the order appealed is not right but only when it is clearly wrong decision”. 63. This Court, on consideration of the finding arrived at by the learned Family Judge and based upon the aforesaid discussion and judicial pronouncements, is of the view that the judgment and decree passed by the learned Family Judge is not coming under the fold of the perversity, since, the conscious consideration has been made of the evidences, as would be evident from the impugned judgment. 64. This Court, therefore, is of the view that the judgment dated 31.03.2023 and the decree dated 10.04.2023 passed in Original Suit No. 02 of 2021 by the learned Family Judge Pakur, need no interference. 65. Accordingly, the instant appeal stands dismissed. 66. 64. This Court, therefore, is of the view that the judgment dated 31.03.2023 and the decree dated 10.04.2023 passed in Original Suit No. 02 of 2021 by the learned Family Judge Pakur, need no interference. 65. Accordingly, the instant appeal stands dismissed. 66. Pending interlocutory application(s), if any, also stands disposed of. I agree, (Rajesh Kumar, J.)