GARG, J. - (1.) THIS revision petition has been filed by the petitioners, who are Mausa and Mausi of the minor children for which there is a dispute over their custody, against the order dated 27. 4. 2001 passed by the learned Addl. District Magistrate, Deedwana District Nagaur by which he accepted the application filed by respondent No. 1 Biharlal (grand-father of the minor children) under Section 97 Cr. P. C. and ordered that keeping the custody of Priya and Rakshita with the petitioners is against the law and, therefore, custody of these two minor children be handed over to their grand-father Biharilal (respondent No. 1) as per the wishes of their father.
(2.) IT arises in the following circumstances :- There is a dispute over the custody of two minor daughters, namely, Priya and Rakshita and they are daughters of one Mahesh Kumar, who is in jail in connection with murder of his wife, meaning thereby the case of the prosecution is that Mahesh Kumar murdered his wife (mother of the minor children) and after that murder, these minor children are living with the present petitioners, who are their Mausa and Mausi. Thereafter, an application was moved by the respondent No. 1 Biharilal (grand-father of the minor children) in the Court of Addl. District Magistrate, Deedwana Distt. Nagaur under section 97 Cr. P. C. and on that application, the learned Magistrate made preliminary enquiry and also recorded the statement of Priya on 23. 4. 2001. She has stated before the learned Magistrate that her age was about 12 years and she has clearly stated that her father has murdered her mother with Musli and, therefore, she did not want to live with her grand-father and she wants to live with her Mausa and Mausi, present petitioners. The learned Additional District Magistrate, Deedwana vide order dated 27. 4. 2001 accepted the application filed by the respondent No. 1 Biharilal under Section 97 Cr. P. C. and ordered that custody of the minor children be given to the respondent No. 1 Biharilal holding inter-alia :- (1) That keeping the custody of the minor children with their Mausa and Mausi (present accused petitioner) would not be in the interest of these minor children and furthermore, they are not the legal guardians. (2) That when grand-father and grand-mother of the minor children are alive, their custody should not be given to Mausa and Mausi. (3) That father of these minor children had sent a letter from jail that custody of these minor children be handed over to their grand-father and grand-mother. Aggrieved from the said order dated 27. 4. 2001 passed by the learned Addl. District Magistrate, Deedwana, this revision petition has been filed by the petitioners. In this revision petition, it has been argued by the learned counsel appearing for the petitioners that the impugned order dated 27. 4. 2001 passed by the learned Addl. District Magistrate, Deedwana is without jurisdiction and it should be set aside and when there is statement of Priya to the effect that she and her sister did not want to live with the respondent No. 1 Biharilal, who is their grand-father, their custody with the present petitioners should be protected. On the other hand, the learned counsel appearing for the respondent and the learned Public Prosecutor supported the impugned order passed by the learned ADM, Deedwana. I have heard the learned counsel for the petitioners, learned counsel for the respondent and the learned Public Prosecutor and gone through the impugned order. Before proceeding further, it may be stated here that at present both minor children are living with the present petitioners.
(3.) THERE is no dispute on the point that mother of these minor children has been murdered and charge of murder is against their father, who is in jail and custody of these minor children is being claimed by their grand-father Biharilal, respondent No. 1. Before proceeding further, legal aspect in respect of guardian and custody of minor children has to be discussed here. The term "guardian" has been defined in sub-section (2) of Section 4 of the Guardians and Wards Act, 1890 (hereinafter referred to as `the Act of 189) 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. ;