K.N.Misra, J. - (1.) THIS appeal is directed against the judgment and order dated 7 -3 -1987 passed by the District Judge, Hardoi in Harish Chandra Shukla v. Person and Property of Km. Madhushila, Misc. Case 98 of 1985 under Section 25 of the Guardian and Wards Act. Harish Chandra Shukla had moved an application for the appointment of Guardian of the person and property of his minor daughter Km. Madhushila alias Nisha born from his first wife. The applicant Harish Chandra Shukla had remarried with another lady and he has also got children from her. His minor daughter from his wife Km. Madhushila, aged about 12 years, is living since childhood with her maternal grandfather who contested the application for guardianship moved by Sri Harish Chandra Shukla, the appellant. After taking into consideration the evidence, the learned District Judge rejected the application vide order dated 7 -2 -1987 with the finding that Km. Madhushila is living quite safety and comfortably with the maternal grand -father and keeping in view the welfare of the minor it is not at all appropriate to change the custody and guardianship of the minor because the father though the natural guardian, does not deserve to be appointed as guardian of the minor as he got a second wife and children from her and there appears so good reason to remove Km. Madhushila from the care and guardianship of her maternal grand -father, who has brought her up from the very childhood and she is living with him quite comfortably. It would, therefore, be quite inapt and against the interest of the minor to give her in the custody of the lather because she would not be able to live comfortably with the step mother whose love and affection would naturally be with her own children and the father's love, affection and care would also be divided in the company of his second wife and her children.
(2.) LEARNED counsel for the appellant urged that since father is natural guardian of his minor girl from his first wife, and, as such, his application for his appointment as guardian of person and property of Km. Madhushila, deserved to be allowed. Although Km. Madhushila is living ever since her childhood with maternal grand -father but that would not give him preferential legal right to act as guardian of her person and property. Learned counsel further contended that although the father has remarried and is living with his second wife and her children, but that would not legally disentitle him to get his minor girl in his custody and guardianship. The father in spite of his second marriage can very well safeguard the interest of the minor and can properly look -after her with all care, love and affection. Learned counsel further stressed that the conduct and behaviour of the step mother towards his minor daughter from the first wife can very well be moulded, controlled and softened in the event it would be found that she is misbehaving with her and is not taking proper care and is not giving due comfort and affection. Learned counsel thus urged that Km. Madhushila be ordered to be given in the custody and guardianship of the appellant by setting aside the impugned order passed by learned lower court. I have carefully considered the above arguments and have gone through the record and I find no merit in the above contention of the learned counsel.
(3.) IT is well settled that whenever a question arises before court pertaining to the custody of a minor child the matter is to be decided not on the consideration of the legal rights of the parties but on the sole pre -dominant criterion of what would best serve the interest and welfare of the minor see Mrs. Elisabeth Dinshah v. Arvand M. Dinshah and another, : A.I.R. 1987 S.C. 3. In my opinion, in the matter relating to appointment of guardian of the person and property of the minor under Sec. 25G. and W. Acts, the court has to consider that is in the best interest and welfare of the infant or minor child, what her prospects are 'for her overall growth and development if the present custody and guardianship is not interfered with and also the factors to what her position will be if the minor is taken by the father to live with him, who has already married another lady. It is well known that the minor child would not feel homely and comfortable in the company of the step mother although the minor may be provided with all love, affection and comfort by the step mother. Moreover, the step mother having children of her own would naturally be devoted to take care of her own children although she may not deliberately neglect or treat with cruelty the step minor child whose physical, mental and intellectual growth would suffer adversely even by the slightest misbehaviour of remotest act of misdemeanour or any act of omission or commission on her part exhibiting her negligence towards the step minor child even if done unintentionally and without any bias. The father, who has married another lady, also cannot be expected to provide all love, affection and care to the minor child from his first wife while living with his second wife and her children because it is but natural that he would be more attached and devoted to them. The minor who has been living ever since the childhood with the maternal grand -father from whom she has received best care, comfort, love and affection would naturally not feel comfortable after removal from his custody and guardianship. Thus her removal from the custody of maternal grand -father would certainly tell upon her physical, mental and intellectual growth. It would, therefore, not serve the best interest and welfare of the minor to give her in the custody and guardianship of the father who has taken a second wife and is living with her.;