- (1.) APPELLANTS (original-respondents) have filed the present appeal under section 47 of the Guardians and Wards Act, 1890 (hereinafter referred as 'the said Act') challenging the judgment and order dated 29.10.2007 passed by the learned District Judge, Jhunjhunu (hereinafter referred as the 'lower court') in Civil Misc. Application No.169 of 2005 whereby the lower court has granted the application of the respondent No.1 (original-applicant) filed under section 10 of the said Act.
(2.) IT appears that the respondent No.1 is grand father of the two minor children named Ujala Bano and Sahil, and the appellant No.1 is the mother, the appellant No.2 is the maternal grand father of the said two children and respondent No.2 who has been subsequently impleaded vide order dated 3.7.2008 in the present appeal is the maternal grand mother of the said two children. The respondent No.1 had made an application before the lower court under section 10 of the said Act seeking his appointment as guardian and also seeking custody of the said two children. The said application was allowed by the lower court vide order dated 29.10.2007 against which the present appeal has been filed. It has been submitted by learned counsel Mr. Intjar Ali for the appellants that the lower court has denied the custody of the two minor children to the appellant No.1 who is the mother and natural guardian on the ground that she had remarried. Placing reliance on the decision of the Apex court in the case of Lekha vs P.Anil Kumar (JT 2006 (10)) SC 516, learned counsel has submitted that while granting custody of child, paramount consideration should be given to the welfare of the child and mere remarriage of mother cannot be taken as ground for not granting custody of minor child to mother. He also submitted that the two children are staying with appellant No.1, mother only and she being the natural guardian, custody should be given to her only. The learned counsel Mr. Akhil Simlote for the respondent No.2 has submitted that the lower court has observed that the respondent No.2 who is grand mother of the children is the right person to have the custody, however he has no objection if the children are kept with the appellant No.1 mother. Learned counsel Mr. JR Tantia for the respondent No.1 states that he has no instructions from his client. Having regard to the submissions of learned counsel for the parties and to the impugned order passed by the lower court, it transpires that in the application filed by the respondent No.1 under section 10 of the said Act, the lower court has not only appointed the respondent No.1 as guardian but also granted the custody of the said two minor children to him on the ground that the appellant No.1 had remarried. The impugned order passed by the lower court ex facie suffers from perversity inasmuch as the remarriage could not be a ground for denying the custody of the children to the mother who is the natural guardian. It is axiomatic that it is the welfare of the minor child which should be the paramount consideration for appointment of guardian in view of section 7 of the Act. The learned counsel for the appellants has rightly relied upon the decision of the Supreme Court in this regard. It is also not disputed that both children are staying with the appellant No.1 mother. Under the circumstances, the impugned order passed by the lower court being illegal and perverse deserves to be set aside. In that view of the matter, the impugned order is set aside. The application of the respondent No.1 filed before the lower court under section 10 of the said Act is dismissed. The appeal stands allowed.;