- (1.) PRAKASH Krishna, J. This is an unfortunate litigation. The two parties are fighting for the custody of minor Ashu. The appellant No. 1 is the mother; while the appellant No. 2 is the maternal uncle. The sole respondent is grand-father of the minor. The appellant No. 1 was married with Brajveer Singh son of the sole respondent as per Hindu rites on 14th of March, 1994. The minor in question who is male child was born on 18th of April, 1995 out of this wedlock. For certain reasons the father and mother of the minor could not pull on well together and litigation started between them. Brajveer Singh, father of the minor is missing since 10th of June, 1998 and since then he has not returned home. A petition for divorce on the basis of cruelty being case No. 787 of 1998 was instituted by Smt. Sangeeta, the appellant No. 1 herein wherein an ex parte decree dated 5th of March, 1999 has been passed. It has been stated that the minor is residing with his mother and the mother has been remarried on 18th of January, 1999 and the minor is residing with his maternal uncle, the appellant No. 2 herein.
(2.) IN the year 2000 an application under Section 7/8 of Guardianship and Ward Act, 1890 was presented by the grand-father (Mange Ram) before the District Judge, Baghpat claiming the custody of the minor. The said application after contest has been allowed by the order under appeal. Heard the Counsel for the parties and perused the record. The Court below has proceeded to decide the application on comparing the financial status of the respective parties. It was found that the respondent herein has got 30 Bighas agricultural land, while the appellant No. 2 has got only 15 Bighas agricultural land. The family of the sole respondent consists of himself, his wife and two sons. The mother has left the minor as she has been remarried and there is every likelihood that the second husband will discriminate in between his own issues and the minor in question. The Court below was of the view that welfare of the minor would be better served if his grand-father, the sole respondent herein, is appointed legal guardian and is given custody of the minor. No doubt, in such matters welfare of a minor is the paramount consideration. It is impossible to catalogue exhaustively the factors which may contribute to the welfare of the child. Capacity of the custodian to supply the daily necessities such as food, clothing and shelter is the primary consideration. To facilitate the child to receive education and to inspire him to go to the school is also not less important. It is not in dispute that presently the minor is residing with the appellant No. 2. Earlier, he was with his natural guardian i. e. mother, the appellant No. 1, herein. It appears that after remarriage, the minor is residing with the appellant No. 2 who happens to be his maternal uncle. There is some dispute with regard to the exact date of birth of the minor. Either it is 28th of April, 1995 as per version of the respondent but according to the appellants the exact date of birth is 29th of May, 1996. Without entering into the controversy about the exact date of birth, the fact remains that the minor is living in the family members of his maternal uncle for the last 11-12 years. He must have been grown up by now. It has been also pointed out, which has not been denied by the respondent, that the minor is getting proper education. He is studying in English Medium School Rishikul Vidyapith and was in third standard in the year 2003 when the appeal was filed.
(3.) THERE is no material on record to show that during this period of about 11-12 years the grand-father of the minor in any manner has shown his concern with the welfare of the minor. The learned Counsel for the respondent accepted that there is no material to show that the respondent has given any financial assistant or gift to the minor on the festivals or on any such occasions in any manner. The minor is residing with his parental uncle almost since birth and at this distance of time it is not appropriate to uproot him from there and to plant him at his grand-father's place. This may have negative impact on the health and mind of the minor specially when there is no such complaint that minor is not being looked after properly by the appellants. The fact that the respondent No. 1 happens to be grand-father of the minor is not in dispute but that fact alone will not tilt the balance in his favour in absence of other overt act on the part of the grand- father to show his concern with the welfare of the minor.;