- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 47 of the Guardians and Wards Act, 1890, is directed against the judgment and order dated 23-7-2005, passed by learned Additional Judge, Family Court, Roorkee, in Misc. Case No. 04 of 2004, whereby it has allowed the petition, moved under Section 7 read with Section 25 of afore said Act and directed that two children, namely, Nitin Kumar and Km. Shivani alias Heena be handed over by the appellant Sudesh (mother) to respondent Madan Pal (father ).
(2.) HEARD learned counsel for the parties. Brief facts of the case are that appellant Sudesh got married to respondent Madan Pal on 30-5-1991. Out of the wedlock three chil dren born, namely, Niraj Kumar, Nitin Kumar and Shivani alias Heena on 28-10-1992, 23-6-1995 and 7-8-1998 respectively. Admit tedly, the elder son Niraj is living with the father and the remaining two children are liv ing with mother. It is also not disputed be tween the parties that vide judgment and or der dated 29-5-2001, by Civil Judge (Senior Division)/f. T. C. II, Roorkee, the decree of divorce was passed and the marriage between the present appellant Sudesh and respondent Madan Pal is already dissolved. All the three children are minor. The respondent Madan Pal moved the application under the Guardians and Wards Act for custody of the two children, namely, Nitin Kumar and Shivani alias Heena on the ground that they are not getting good educa tion in the village and they can be provided better education in Muzzafer Nagar, where the respondent Madan Pal is living. The ap pellant Sudesh filed the written statement before the trial Court and pleaded that inter est of the two children, namely, Nitin Kumar and Shivani alias Heena are secured with her. She further pleaded that the children are go ing to school and getting good education. Lastly, she has pleaded that she has no plan to remarry and as such the custody of chil dren should not be given to the father (respon dent Madan Pal ).
(3.) ON the basis of the pleadings of the par ties the trial Court framed following issue:- "whether the plaintiff/petitioner is entitled to get the custody of the two minor children, namely, Nitin Kumar and Km. Heena?" The trial Court, after recording evidence allowed the petition under Section 7 read with Section 25 of Guardians and Wards Act and directed mother to hand over custody of the two children to the father. Hence this appeal.;