Vishnudeo Narayan, J.
1. This appeal at the instance of the opposite party appellant has been preferred against the impugned judgment dated 24.6.1996 passed in Guardianship Case No. I of 1991 by Shri Molilal Hansdah, 1st Additional District Judge, Giridih whereby and whereunder the said guardianship case was allowed appointing applicant-respondent as guardian of the person of Mastar Vikram.
2. The applicant respondent, who is the natural maternal grand father of Master Vikram, had filed the said guardianship case Under Section 7 of the Guardianship and Wards Act, 1890 for his appointment as guardian of the person of the said minor.
3. The case of the applicant respondent, in brief, is that the marriage of his daughter Anju was solemnized with opposite party-respondent Mahendra Modi on 7.2.1988 in accordance with Hindu religion and rites and she had gone to her matrimonial home in the company of her husband on the following day of the marriage and in the said marriage he had met all the demands of the opposile parlyrespondent and his father and other family members and they demanded Maruti Car saying that for an IPS boy the presentation of the Maruti Car by way of dowry is inconsonanee with his prestigious position and keeping in view the welfare of Anju, the applicant-respondent promised to arrange for a Maruti Car when his economic condition improves after meeting the essential obligations and goaded with the limitless greed, the opposite party-respondent and his family members perpetrated cruelly and torture upon Anju and Master Vikram was born to Anju out of. this wedlock but she was not kept with love and affection. It Is alleged .that Anju gave birth to Master at Giridih on 1.8.1990 as she apprehended some danger in her matrimonial home. The opposite party-appellant was posted as Superintendent of Police, intelligence at Kanpur and after the birth of the said child Anju was taken to Kanpur. It is alleged that the opposite party-appellant did, not care to come to see the said child but to restore peace and happiness Anju and her son were sent to Kanpur by the applicant but all the attempts went in vain and ultimately she was done to death. Jt is alleged that taking advantage of his position, the opposite party-appellant and his family members 'committed the murder of Anju and on getting the said information, this applicant-respondent sent his son Jai Nandan Lal to ascertain the truth and to file a case against the persons responsible for the culpable homicide of Anju and a case Under Sections 498A and 304B of the Indian Penal Code was lodged by Jai Nandan Lal aforesaid before Nawabganj (Kanpur) Police Station which bears Nawabganj (Kanpur) Police Station Case No. 33 of 1991 and the opposite party-appellant has deputed outlaws and hoodlums to liquidate lives of all those who displayed courage to pursue the said case. Further case of the applicant respondent is that the opposite party-respondent came to Giridih on 7.2.1991 and handed over the newly born son Mastar Vikram, then aged about seven months, to this applicant-respondent uttering that the said child is useless for him and his presence in his house would be an impediment to his ambition to re-solemnize his marriage and since then, the said child is properly being looked after and being brought up by this applicant-respondent. who is the maternal grand father of the said child which has necessitated. for his appointment as the legal guardian of the person of the said child keeping in view the paramount consideration of the welfare of the child as there is every likelihood of the opposite party-appellant creating more mischief on this score. It is also alleged that the opposite party-appellant being the natural guardian of the said child figures as the main accused on the charge of the commission of murder of his lawfully wedded wife Anju for or in connection with the demand of dowry and he is also not interested in keeping the said child and looking after his welfare and his attitude may culminate in the premature death of the said child and it is neither safe nor proper to entrust the said child to the opposite party-appellant under his guardianship.
4. The case of the opposite party-appellant, inter alia, is that the entire allegations as averred by the applicant- respondent in his guardianship application are false, baseless and concocted made with mala fide intention and it is false to allege that huge amount in case or in kind was paid to him on the eve of the marriage and it is equally false to say that there was any demand of Maruti Car by him or his family members from the applicant-respondent as well as of subjecting Anju with cruelty for the fulfillment of the said demand. It is alleged that there was cordial conjugal relationship between him and his wife Anju as well as with the applicant respondent and his family members an during the existence of continuous cordial conjugal relationship between them Anju was blessed with a son, who was named Vikram by his parent and it is equally false to say that Anju came to Giridih for delivery as she apprehended some danger in her matrimonial home, rather, the truth of the matter is that since it was the first delivery of Anju and on the request of her parent, he allowed Anju to go to Giridih at the time of delivery and after the birth of the said child Anju returned to her matrimonial home where he was leading her conjugal life with him cordially and it is false to say that he has committed the murder of Anju. It is alleged that he has been falsely implicated in the said criminal case at the instance of Jai Nandan Lal. The further case of the opposite party-appellant is that the has never handed over Mastar Vikram to the applicant- respondent saying that the said child is useless for him and his presence would be impediment for resoleminization of his marriage, rather, the truth of the matter is that the parents of Anju requested him that he should allow mastar Vikram to live with him for sometime and in view of their request he allowed his son Mastar Vikram to be with them for few days only and keeping in mind, the paramount welfare of the said child gave a proposal to them for his marriage with their second daughter which was refused and being inraised of the said proposal he has been deliberately implicated in the said criminal case at the instance of the applicant-respondent and thereafter he demanded from the applicant-respondent to return his son and also wrote several letters, firstly on 23.2.1991 for the return of his son so that he may take proper care of his son to bring him up under his love and affection which was refused and he has also filed a case before Lucknow Court for the custody of his son, which is still subjudice. It is also alleged that the opposite party-appellant is the natural guardian of his son Mastar Vikram being his father and entitled for the custody of the said child but the applicant-respondent has filed the guardianship case with false and malicious allegation and the claim of the applicant-respondent for his appointment as guardian of the said minor is illegal and not maintainable. Lastly, it has been contended that Giridih Court has also no jurisdiction in the matter and the only Court which has jurisdiction is the Court at Kanpur.
5. There is a subsequent event in this case which transpires from the certified copy of the order of sentence passed in SC Case No. 37 of 2001 annexed with the supplementary affidavit filed on behalf of the applicant-respondent on 15.3.2004, which is to the effect that the opposite party-appellant was found guilty for the offence Under Section 4 of the Dowry Prohibition Act, 1961 by the Court of Shri S.N. Gupta, Additional Sessions Judge, Delhi and he was convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 5,000/- and in default thereof to undergo simple imprisonment for two months furthermore, the opposite party-appellant has re-solemnized his marriage in the month of June 1995 with one Seema but he has denied the fact that the has a son born of Seema for which the evidence of OW 2 Mahendra Modi, the opposite party-appellant in paras 7 and 14 at page 18 as well as para 27 of OW 3 are referred to, though in course of hearing it has been emphatically stated by the learned counsel for the applicant-respondent that presently the opposite party-appellant has a son and a daughter born of his subsequently married wife Seema.
6. In view of the oral and documentary evidence on the record. The learned Court below considering the paramount welfare of the said Mastar Vikram appointed the applicant-respondent as the guardian of the person of the said minor child Mastar Vikram till he attains majority and allowed the guardianship case filed by the applicant-respondent.
7. Assailing the impugned judgment it has been submitted by the learned counsel for the opposite party-appellant that the learned Court below has committed a manifest error and has misdirected itself in appointing the applicant-respondent as guardian of Mastar Vikram in presence of his natural father i.e. the opposite party-appellant and the learned trial Court did not properly consider the paramount welfare of the minor child. It has also been submitted that the presence of step-mother is no ground to deny the natural father of his undoubted right of the custody of his minor son. It has also been submitted that the opposite party-appellant was not found guilty by Delhi Court in the said sessions case for the offence Under Sections 304B and 498A of the Indian Penal Code on trial in respect of Nawabganj (Kanpur) Police Station Case No. 33 of 1991 and therefore, he stands absolved of the allegation of causing the dowry death of his life and in this view of the matter he cannot to be said unfit for having custody of his minor son. It has also been submitted that there was cordial conjugal relationship between him and his deceased wife which is evident from the photographs (Ext. A series) and the opposite party-appellant had taken proper cafe of the welfare of the said child till he was with him and at the request of the applicant-respondent lie has brought the said child to Giridih for sometime and thereafter he sent letters (Ext. C series) for return of the said child to the applicant-respondent but all those letters did not have any telling effect on him and thereafter he sent several money orders for 'proper upkeep of the said minor child which was refused by the applicant-respondent and Ext. D series evidences the said fact. It has further been submitted that the opposite party-appellant was taking proper care of his minor son at Kanpur and Ext, F evidences the said fact and the learned Court below did not take notice of Ext. P Lastly it has been contended that keeping in view of the paramount welfare of his minor son Mastar Vikram, the opposite party-appellant has taken an insurance policy for him (Ext. G) and other securities (Ext. H series). In support of his contention reliance has been placed upon the ratio of the cases of Mrs. G. A. Ayyadorai Pillai v. E.H.B. David, AIR 1960 Madras 519, S. Abboy Naidu and Ors. v. R Sundra Rajan AIR 1989 Madras 129, Reginald Danieal v. Sarojam and Anr. AIR 1969 Madras 365 and Smt. Samitran Devi v. Suba Ram, AIR 1961 Punjab 161.
8. In contra, it has been submitted that the learned Court below considering the paramount consideration of the welfare of the minor child in the facts and circumstances of this case has appointed the applicant-respondent as the guardian of the person of Mastar Vikram. It has been contended that there was no cordial conjugal relationship between deceased Anju and her husband, the opposite party-appellant and she was treated with cruelty in her matrimonial home and having some apprehension of her safety she had come to her parent's house for delivery where she was blessed with a son named Mastar Vikram and the opposite party-appellant did not come to Giridih to see his new born son and thereafter Anju with her son went to Kanpur where the opposite party-appellant was posted as Superintendent of Police, Intelligence and the said Anju died in suspicious circumstance on 4.2.1991 in her matrimonial home at Kanpur and no information of her death was given by the opposite party-appellant to the applicant-respondent and even the opposite party-appellant in course of his evidence has not disclosed the cause of the death of deceased Anju and there is something fishy behind her death and first information report was lodged by the son of the opposite party-appellant regarding the unnatural death of Anju in her matrimonial home within seven years of her marriage for the fulfillment of the demand of dowry and a case Under Section 304B and 498A of the Indian Penal Code was registered against the opposite party-appellant when the said information secretly trickled to the applicant-respondent and ultimately the said ease after having a chequered history ended in conviction of the opposite party-appellant only Under Section 4 of the Dowry Prohibition Act and he was sentenced to undergo RI for six months and to pay a fine of Rs. 5,000/-. It has further been contended thai the appellant has re-solemnized his marriage with Seema and the applicant-respondent has definite knowledge of the fact that he has now a son and a daughter born of his subsequently married wife Seema and during the entire period the said Mastar Vikram has lived with the applicant-respondent and no genuine interest was shown by the opposite party-appellant for the care and proper maintenance of the said minor child and even the other family members of the opposite party-appellant also did not show any genuine interest in respect thereof and also the petition of the opposite party-appellant for the 'interim custody of the said child was rejected by this Court vide order dated 14.5.1998 for the reasons detailed therein. It has also been submitted that said Mastar Vikram is properly maintained by the applicant-respondent and he has been provided with all amenities for bringing him up considering his future prospect and there is evidence on the record to show that the applicant-respondent, who is the natural maternal grand father of Mastar Vikram, has sufficient means for his proper bringing up and the evidence to that effect on the record stands even admitted by the witnesses of the opposite party-appellant. It has further been submitted that the opposite party-appellant is unfit for the custody of his minor son Mastar Vikram in the facts and circumstances of this case and. considering the paramount welfare of the said minor, the applicant-respondent was appointed his guardian and there is no illegality in the impugned judgment requiring an interference therein. In support of his contention reliance has been placed upon the ratio of the cases of A.V. Venkatakrishnaiah and Anr. v. S.A. Sathyakumar, AIR 1978 Karnataka 220, Bimla Devi v. Subhas Chandra Yadav 'Nirala', 1991 (1) PLJR 187, Mrs. Elizabeth Dinshaw v. Arvind M. Dinshaw and Anr., (1987) 1 SCC 42 and Kirtikumar Maheshankar Joshi v. Pradipkumar Joshi. AIR 1992 SC 1447.
9. Now the point for consideration is as to whether in presence of the natural father i.e. the opposite party-appellant, the appointment of applicant-respondent as the guardian of the person of Mastar Vikram in view of the consideration of his paramount welfare is sustainable.
10. The following facts are the admitted facts. The marriage of Anju the daughter of the applicant-respondent was solemnized with the opposite party-appellant on 7.2.1988 at Giridih in accordance with Hindu religion and rites and she went to her matrimonial home where her marriage was consummated and she was living with the opposite party-appellant at Kanpur where he was posted as Superintendent of Police, Intelligence. She was in the family way and she came to her parent's house at Giridih for deliverywhere she was blessed with a son Mastar Vikram on 1.8.1990. After three months of birth of the said child, she returned to Kanpur with her son and she died there in the night between 3rd and 4th of February 1991 and her death has occurred otherwise than under normal circumstances within seven years of her marriage. According to the case of the applicant-respondent she was subjected with cruelty and harassment by the opposite party-appellant had his family members for or in connection with the demand of a Maruti Car in dowry but it has been denied by the opposite party-appellant. Nawabganj (Kanpur) Police Station Case No. 33 of 1991 was instituted against the opposite party-appellant and others Under Sections 304B and 498A of the Indian Penal Code in respect thereof. The opposite party-appellant was put under suspension and he was prosecuted in the said case and finally the case was disposed of by Delhi Court on transfer as per the order of the Apex Court in which the opposite party-appellant was found guilty for the offence Under Section 4 of the Dowry Prohibition Act 1961 and he was convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 5,000/- and in default to undergo simple imprisonment for two months. It is said that he has preferred an appeal against that conviction. Admittedly, the opposite party-appellant has re-solemnized his marriage with Seema in the year 1995 and it has been emphatically stated in course of hearing by I he learned counsel for the applicant-respondent that presently the opposite party-appellant has a son and a daughter born of his subsequently married wife Seema, though the learned counsel for the appellant has stated that he has no instruction in respect thereof. Said Mastar Vikram after the death of his natural mother was brought to Giridih from Kanpur where he is being brought up under the care of applicant-respondent and 14 years has rolled by since then and an application of interim custody of the opposite party-appellant was rejected by this Court vide order dated 14.5.1998 for the reasons stated therein. It has been observed in the said order that the child has not seen and heard of his father. Therefore, in the event of the opposite party-appellant meeting the child will cause sudden psychological changes taking place in his mind, which may affect his future mental growth.
11. AW 4 Gobardhan Lal, the applicant-respondent, has deposed that a Maruti Car was demanded by the opposite party-appellant and his father at the time of the marriage which could not be fulfilled and thereafter they subjected Anju with cruelty in diverse ways and Anju used Lo report to him in respect thereof. Similar is the evidence of AW 1 Jai Prakash Lai and AW 3 Jai Nandan Lal the full brothers of Anju aforesaid AW 4 has further deposed that Anju expressed her desire to deliver the child at Giridih when she was in the family way and she came to Giridih where she was blessed with a son on 1.8.1990. AW 4 has categorically deposed in the most clear and unequivocal terms that neither the opposite party-appellant nor his family members have ever come to Giridih to see the new born child. He has also deposed that Anju expressed her desire to go to Kanpur in view of the fact that she has now been blessed with a son and there may be a change in the attitude of the opposite party-appellant and in view of her desire she along with her new born child was sent to Kanpur in the month of October 1990 but the birth of the said child did not become a turning point in their conjugal,life and she used to inform him on telephone regarding the cruel treatment meted to her at Kanpur. AW 1 and AW 3 in their evidence have corroborated the testimony of AW 4 in respect thereof in material particulars. AW 4 in para 3 of his evidence has deposed that he got an information on 4.2.1991 on telephone regarding the death of Anju and he sent his son to Kanpur. AW 3 has deposed that on the information of the death of Anju he came to Kanpur and he learnt by the news published in the newspaper that Anju has been done to death and he lodged a case in respect thereof before Nawabganj Police Station Under Sections 304B and 498A of the Indian Penal Code against the opposite party-appellant. Aw 4 has deposed that the opposite party-appellant brought the said child to Giridih and handed over the said child to the applicant-respondent on 7.2.1991 and stated that it is difficult for him to bring this child and he has to face difficulty in respect thereof and also stated that the existence of this child shall be an impediment in the way of his re-solemnization of his marriage and since then the said child is under the care and affection of this applicant-respondent and he is properly being brought up and looked after. AW 1 and AW 3 have also corroborated the testimony of AW 4 in respect thereof AW 2 is the neighbour of the applicant-respondent and on visiting terms with him. He has also deposed that the opposite party-applicant came to Giridih on 7.2.1991 in his presence and handed over the child to the applicant-respondent stating that the child may be brought up by the applicant-respondent and he has a long span of life and he has to re-solemnize his marriage and after five or ten minutes of his stay there he left the place. AW 4 has also deposed that the opposite party-appellant has never written any letter to him for demanding the custody of the said child. His evidence is further to the effect that the said child is properly being brought up by him considering his future prospect under his care and affection and considering the paramount welfare of the said minor child the custody of the said with him is a necessity and for that he should be appointed as guardian of the person of the said child AW 3 has deposed that a search warrant was issued by Lucknow Court for the custody of the said child at the instance of the applicant-respondent but Lucknow High Court stayed the said order. He has also deposed that the life of the said child shall be in danger if he is placed under the custody of the applicant-respondent. OW 2, the opposite party-appellant has deposed that he has sent Anju to Giridih for delivery as per the request of the applicant-respondent and he has visited Giridih on 7th of August 1990 to see the newborn child. His evidence is further to the effect that the said child was brought by the applicant-respondent from Kanpur on the pretext that his wife intends to see the said child and the said child shall be returned after four or five days and he has allowed him to take the child to Giridih, but inspite of persistent request through letters the said child was not handed over to him OW 2 in his evidence does not whisper that during the period between 7.2.1991 till date of his evidence i.e. 3.6.1996 he has ever visited Giridiheven to have a look of the said child. This witness has also not disclosed either in his pleadings or in his evidence to how and in what manner Anju hasdied in his house. The evidence of OW 1 and OW 3 has no relevancy in respect of the matter in controversy Ext. C to C/2 are the carbon copy of the letters dated 18.3.1991, 14.7.1991 and 23.2.1991 respectively which are said to have been sent by the opposite party-appellant to the applicant-respondent for the return of the custody of the said child to him. The copy of the said letters prepared in the carbon process has been proved by OW 3, the mukhiya of Chandbara panchayat and a co-villager of the opposite party-appellant. Ext. B is the postal receipt of under certificate of posting which contains the seal of the post-office dated 9.3.1991 and it has been brought on the record to evidence the fact that the letter has been sent by the opposite party-appellant to the applicant-respondent. It is pertinent to mention here that neither of the letters (Ext. C series) dated 9.3.1991 to prior to that. Therefore Ext. C series r/w Ext. B lack credence. It is equally relevant to mention here that this guardianship case has been filed by the applicant-respondent on 6.3.1991 and all these alleged letters are of during the pendency of this case. Ext. D series are the money order coupons dated 20.3.1996 and 1.2.1996 which show that some money was sent to the applicant-respondent though money order which were not accepted by the applicant-respondent Ext. E is the postal certificate granted by the Post Mastar in respect thereof.
Therefore, these documents have also no relevancy in this case as they have been brought into existence during the pendency of this case. Similar is the position in respect of Ext. G and Ext. H series, the L.I.C policy and certain securities which are 'cjated 26.12.1995. 27.12.1995 and 14.5.1996 respectively. Exts. 1 and I/A are the cash memo of a cloth shop of Jhumari Teliya dated 4.8.1990 and 5.8.1990 in respect of the purchase of the some clothes detailed therein and the receipts have also no' relevancy in this case. Ext. 1 is the letter written by Ashok the brother of applicant-respondent to the applicant-respondent and it is dated 12.3.1991 in which a request was made to settle the matter regarding the said dowry death of Anju. The photographs (Ext. A series) have no relevancy in this case to show the existence of cordial conjugal relationship between the couple in view of the death of Anju which has occurred otherwise than under normal circumstances in her matrimonial home within seven years of her marriage. From the evidence discussed above read with the admitted facts of this case it appears that after the delivery of the. said child at Giridih, the opposite party-appellant did not come even to see the child for three months prior to return of Anju with the said child to Kanpur. No intimation regarding the death of Anju has been given by the, opposite parly-appellant to his in-laws. There is evidence on the record that one Dy. S.P. gave the said sad information to the applicant-respoildent on telephone. The child was brought to Giridih on 7.2.1991 by the opposite party-appellant and the custody was given to the applicant-respondent for his bringing up stating that the said child is useless for him and it shall be an impediment for re-solemnization of his marriage. Since then, no interest whatsoever was shown by the opposite party-appellant in the said child, Admittedly, the opposite party-appellant has re-solemnizcd his marriage and the opposite party-appellant has never cared to have a glimpse of the said child since 7.2.1991 till date. The opposite party-appellant stands convicted in the said criminal case though not Under Sections 304B and 498A of the Indian Penal Code but Under Section 4 of the Dowry Prohibition Act. The petition of interim custody of the said child filed by him was also rejected by this Court in this case earlier. 12. Now arises the question of consideration of paramount welfare of the said minor child for deciding the controversy regarding the custody of the said, minor child. According to the Hindu Minority and Guardianship Act, 1956, minor means a person who has not completed the age of eighteen years and guardian means a person having the care of the person of a minor or of his property or of both his person and property and includes a natural guardian or a guardian appointed or declared by the Court. The natural guardian of Hindu minor Under Section 6 of the said Act 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 in the case of a boy or an unmarried girl, the father and after him the mother. Section. 19 of the Guardians and Wards Act, 1890 (hereinafter referred to as the said Act) mandates that nothing in Chapter-Il of this Act shall authorize the Court to appoint or declare a guardian of the property of minor or to appoint or declare a guardian of the person whose father is living and is not in the opinion of the Court, unfit to be guardian of the person of the minor. Section 7 of the said Act, mandates that where the Court is satisfied that it is for the welfare of a minor that an order should be made appointing a guardian of his person or property or both or declaring a person to be such a guardian, the Court may make an order accordingly. Section 17 of the said Act mandates that 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 and 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 and if minor is old enough to form an intelligent preference, the Court may consider that preference. It is pertinent to mention at the very outset that this guardianship case was filed when the said minor child was only eight months old in the custody of the applicant-respondent, who is the own maternal grand father of the said child and I have already stated above that the said child has been delivered in his custody by none else but the opposite party-appellant himself as the said child was useless for him and there was difficulty for him in rearing and bringing up of the said child and further that the existence of the said child shall be an impediment in his way of re-solemnizing his marriage and the opposite party-appellant has, in fact, solemnized his re-marriage. Under our law, the satisfaction of the Court that the appointment or declaration of guardian of the person or property of a child is for the welfare of the child is a statutory obligation both Under Sections 7(a) and Section 17 of the said Act. Section 17, enjoins the consideration of other matters like he personal law of a child, his age, sex and religion, character and capacity of the proposed guardian and his relationship with the minor as well as intelligent preference of the minor, beside, the consent of the proposed guardian. Welfare of the child is not the matter for exclusive consideration but it is the primary matter of consideration and the provision of Section 19, aforesaid is controlled by Section 17. In this connection, Section 13 of the Hindu Minority and Guardianship Act, has its, relevancy which mandates that 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 and the superior right of any other person is not to be taken into account. In the matters relating to the appointment of guardian, the very wide discretion and power rests with the Court and this discretions is always exercised in the interest of the child and for his welfare. For the welfare of the child it has got the discretion even of appointing a guardian in presence of the father and Section 3 of the said Act, has provided for the retention of the inherent jurisdiction of the High Court and normally the High Court is rather reluctant to interfere with the orders of the competent Court on the question of guardianship and the discretion exercised in the matter by the Court below will not be lightly interfered with by a Court of Appeal. In the case of Mt. Premkaur and Ors. v. Banarsi Das, AIR 1933 Lahore 881, it has been observed which runs thus :-
'Where a guardian for a minor is appointed by a single Judge in exercise of his discretion, though an appeal is competent from his order, the fact that the making of the order is a matter of discretion is a good ground for refusing to exercise the appellate jurisdiction unless the appellant succeeds in establishing a strong case, such as would justify interference in appeal.'
In the case of Thirty Hoshiam Dolikuka v. Hoshie Shavaksha Dolikuka AIR 1982 SC 1276. it has been observed which runs thus :-
'The principles of law in relation to the custody of a minor appear to be well-established. It is-well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor.'
In the case of Klrtikumar Maheshankar Joshi (supra), the mother of the child has died in suspicions circumstances and in the facts of that case, the Apex Court in the interest and welfare of the children declined to hand over their custody to their father though he had preferential right to custody. In the case of Mrs. Elizabeth Dinshaw (supra) the Apex Court has observed which runs thus :-
'Quite independent of the above consideration whenever a question arises before a Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor.'
In the case of A.V. Venkatakrishnaiah and Anr. (supra), the mother of the minor child has died after delivery and since the time the child was born, he was being brought up in the house of the maternal grand parents and the father of the child had re-solemnized his marriage and a son was also born to him from his subsequently married wife. In the facts of the said case, the Division Bench of Karnataka High Court has thus observed :-
'Where the minor is subject to the Hindu Laws. Section 13 of the Hindu Minority and Guardianship Act prevails other Section 19(b) of the Guardian and Wards Act. The two Sections together with Section 17 of the latter Act should be read harmonously and if there be any conflict it is Section 13 of the Hindu Minority and Guardianship Act, that prevails. This overriding affect his clearly provided in Sections 2 and 5 of that Act. The document consideration, therefore, in appointing the guardian should be the welfare of the child, and not merely the right of the father. The father's right to the custody of his minor child is no long, absolve it is circumscribed by the consideration of welfare of the minor.'
It has further been observed therein 'that it was found that the father1 had remarried and had a son from his second wife. It was quite probable that more issues may be appearing in due course. The stepmotherly attitude is proverbial in this country'. In the case of Bimla Devi (supra) the mother of the minor child has also died in suspicions circumstances and the father of the said minor child was facing prosecution for the said charge and it has been observed that before any guardian is appointed for a minor, Section 7 requires that the Court has to be satisfied that it is for th.9 welfare of the minor. Moral and ethical welfare of the minor must also weigh with the Court as well as the physical well being and the order of the appellate Court below for handing over the custody of the minor to such a father on the ground of his being the natural guardian is erroneous. Under the Hindu Law. the father is the legal guardian of the minor child and under the Guardians and Wards Act, 1890 also he is so. But the most important consideration which must always weigh with the Court in making orders for the appointment of guardian of minor is the welfare of the minor, and in that view of the matter, the legal rights of the father must be understood' subject to provisions of Section 17 under which the Court should be guided by the sole consideration of the welfare of the minor, and what would be for the welfare of the minor must necessarily depend upon the facts and circumstances of each particular case. In the case of Smt. Samitran Devi (supra) relied upon by the opposite party-appellant it has been observed by the Punjab High Court that the mere presence of the step mother is .no ground to deny a father his undoubted right to custody of his child. The facts of this case is quite dismilar to the facts of the present case and as such this ratio is of no help to the opposite party-appellant in the given false of this case at hand. In the case of Reginald Danieal (supra) it has been observed by the Madras High Court that the welfare of the minor would be an overriding consideration for the appointment of a guardian only when the father is held unfit Under Section 19(b) and the father's right to the guardianship. of his minor child is supreme and it is for the welfare, of the child except where he is unfit and therefore, the fact that the child may be happier and more comfortable with other relations is neither sufficient to deprive the father of his right and duty nor the fact that a person ill-treated his wife, can be a relevant consideration in deciding whether he is a proper person to have the custody of his child. It has also been observed therein that a person who has discarded his wife and is living with his mistress in his house cannot be considered to be a person fit to have the custody of his child of tender years. Had the person married a second wife and it was permissible under the personal law, then that would not, however, be a bar to his application Under Section 25 being granted. The ratio of this case is also of no help to the facts of the case at hand. In the case of S.Abboy Naidu (supra), the mother of the minor child has committed suicide and the father of the said child on his charge of her murder was acquitted and the revision against his acquittal is pending and the father is possessed of sufficient means and also assisted by his parents in looking after the minor and the maternal grand parents were old and not self independent and in the background of the aforesaid facts, the custody of the minor daughter was handed over to the father. The facts of this case is also distinguishable to the facts of the case at hand. Therefore, this ratio is also of no help to the opposite party appellant. In the case of Mrs. G.A.Ayyadorai Pillai (supra) it has been observed by the Madras High Court which runs thus :-
'The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that he has married a second wife after the death of his first wife is no ground for depriving him of his parental right of custody. The father may have shortcomings; but that does not imply that he is not deserving of the solace and custody of his child. Considerable latitude will have to be allowed for the father, who being a young man loses his head momentarily under the stress of a bitter quarrel with the family of his first wife. If the Court forms the impression that the father is a normal and intelligent young man and shows no indication of imbalance of mind an him, then it should not refuse to him the custody of his minor child from his first wife.'
The ratio of the cases aforesaid relied upon by the appellant is also of no help to him in this case at hand. In the facts and circumstances of this case read with evidence on the record discussed above, the opposite party-appellant being the natural father of the minor Mastar Vikram is unfit to have the custody of the said minor child considering the paramount welfare of the said child. The said minor child is being brought up since eight months of his age by the applicant-respondent properly with love and care and his future prospect is secured in living with the applicant-respondent in the facts and circumstances of this case, who has sufficient means to properly bring up the said minor child and the welfare of the said minor' child is better secured if he remains in custody of his maternal grand father instead of his natural father who stands convicted in criminal charge in connection with the case aforesaid in which the mother of the said minor child has died in her matrimonial home which is definitely not a natural death and it has occurred otherwise then under normal circumstances. Moreover. the natural father i.e. the opposite party-appellant has not taken any interest what to talk of genuine interest in bringing up the said child since 7.2.1991 and has also not even a glimpse of the said minor child and in this view of the matter and considering the welfare of the minor, the opposite party-appellant has forfeited his right of having the custody of the said minor child. The minor's welfare is of a paramount consideration and it is only relevant factor and any right of the father is subordinate to that. The placing of the said minor child in the custody of the opposite party-appellant may cause emotional and psychosocial break down of the said minor child at such belated stage in the facts and circumstances of this case, which may affect his future prospect, which stands secured presently in his living with the applicant-respondent. Therefore, it will not be in the interest of the welfare of the said minor child to entrust his custody to the natural guardian i.e. the opposite party-appellant and in such a situation, I am inclined to accept the claim of the applicant-respondent in preference to the claim of opposite party-appellant in this case. In the facts and circumstances of this case, I am also fortified in my view as per the ratio of the case of Isidore Bose v. Mrs. S. Brown and Anr., AIR 1951 Punjab in which it has been observed that in matters of appointment of a guardian of the person of a minor the appeal Court should be slow in interfering with the discretion of the trial Judge where the discretion has been properly and judicially exercised. The learned trial Court has rightly appointed the applicant-respondent as the guardian of the person of the said minor child and has rightly exercised his discretion in the given fads and circumstances of this case and as per the evidence on the record.
13. Before parting it is relevant to mention here that the jurisdiction of the Court appointing the applicant-respondent as guardian of the said minor was not pressed before me in course of hearing of the appeal. However, the question of jurisdiction has been averred in the memorandum of appeal. In this case Section 9 of the said Act is relevant which mandates that if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having Jurisdiction in the place where the minor ordinarily resides. Here in this case, the minor resided at Giridih for the first three months after his birth and thereafter the said minor is residing at Giridih since 7.2.1991 when the said child was brought to Giridih after the death of his mother in suspicious circumstances. Ordinarily place of residence of the said minor at Giridih is an admitted fact. Therefore, the Court of District Judge of Giridih has jurisdiction in the matter and Kanpur or Lucknow Court cannot be said to have any jurisdiction in the matter.
14. The learned trial Court has rightly appointed the applicant-respondent as the guardian of the person of the said minor child in the facts and circumstances of this case on consideration of the paramount welfare of the said child. I see no reason to disagree with the finding of the trial Court.
15. There is no merit in this appeal and it fails. The Impugned judgment of the trial Court is hereby affirmed. The appeal is dismissed. There shall be no order as to cost in the facts and circumstances of this case.