Prakash Tatia, J. - (1.) HEARD learned Counsel for the parties.
(2.) THIS appeal is by the non -applicants maternal grandfather and grand -mother against the judgment of the Court of Addl. District Judge, Bali, Pali passed on the application filed under Section 7 of the Guardian and Wards Act by the father of the minor child whereby the trial Court has allowed the application of the father of the child Nikhil and directed the appellants -non -applicants to hand over the custody of the child Nikhil to the respondent -applicant -father. Brief facts of the case are that the respondent -applicant's marriage was solemnized with appellant's daughter Smt. Asha on 21.11.2005. Out of wedlock, boy Nikhil born on 12.09.2002. It is stated that in the year 2003 applicant -respondent's wife fell ill seriously and due to illness she died on 02.08.2004. At that time, the appellant -non -applicant came to the house of the respondent -applicant and stated that for few days they want to take Master Nikhil to their house and they took Nikhil to their house for living with them for few days only. However, thereafter, inspite of request of the applicant -respondent, the appellants -non -applicants did not hand over the custody of the Master Nikhil to the respondent -father. It is also alleged that appellant No. 2 is the second wife of the appellant No. 1 and therefore, is the step mother of the applicant respondent's wife deceased Asha. Therefore, it is stated that appellants are not entitled to have the custody of the son of the applicant -respondent. It is also stated that appellants -non -applicants were of the age of 55 and 53 respectively and they have no good source of income and they are carrying on their life with the help of their pre earned income, whereas the applicant is in private service and is getting Rs. 6,000/ - per month and has good living accommodation. It is also submitted that the applicant -respondent's father is a retired Government employee and therefore, they have very good family wherein the applicant's son will have best lookafter and will get good education and the welfare of the applicant's -respondent's son will be if he lives with the applicant -respondent. The applicant before filing this petition for custody in the Court gave a registered notice to the appellants -non -applicants on 25.02.2005 and even, thereafter, the custody of the child has not been delivered to the respondent -applicant, then he has filed the present petition.
(3.) THE non -applicants submitted reply to the petition while admitted the marriage of the respondent's -applicant with their daughter and birth of Master Nikhil on 12.09.2002. They denied that their daughter was sick for long period and submitted that in fact, she become sick because of the torture on their daughter by the family members of the applicant -respondent. They also stated that they used to harass deceased Asha for dowry and they gave beating to Smt. Asha and thrown out Smt. Asha from the house of the applicant -respondent. That caused mental agony for Smt. Asha and because of that she fell ill. It is stated that the appellants -non -applicants took Smt. Asha to hospital and they incurred all the expenses for the treatment of their daughter Smt. Asha. The applicant never tried to care his wife and hardly he came to meet with his wife Smt. Asha and on account these cruelty Smt. Asha died on 02.08.2007. It is stated that non -applicant No. 1 is doing his business in Nadiyad City of Gujarat and he was not given information about the death of Smt. Asha in time, but immediately when non -applicant No. 1 -appellant No. 1 received the information of death of Smt. Asha he reached to village Bali where she died. It is alleged that before appellant No. 1 could reach village Bali from Nadiyad, Asha's funeral was performed and non -applicant No. 1 protested for funeral of Asha before non -applicant reached to the house of the applicant, upon which his family members tendered apology and because of the intervention of the relations, non -applicant No. 1 did not lodge FIR against the applicant for committing murder and for demanding dowry.;