The welfare of the minor child is of paramount importance in custody disputes, and the court must consider the suitability of the guardian based on the child's best interests.

Manojeshwar Prasad Amanullah, J.

1. Sinha for the appellant, and Mr. Amarendra Nath Verma for the respondent.

2. The present Miscellaneous appeal has been preferred by the appellant against the order dated 17.5.2011 passed by the Principal Judge, Family Court, Bettiah in Miscellaneous Case No. 40 of 2008. The case was filed by the respondent under Section 7 of the Guardians and Wards Act, 1890 for declaring him as guardian of the minor child Raja Babu. The respondent is the maternal uncle of the said boy namely, Raja Babu and appellant is the father.

3. The brief facts necessary for the disposal of the present appeal are noted hereinbelow. The appellant was married to the sister of the respondent on 26.11.2005 and as alleged she was burnt to death by the appellant and his family members on 26.2.2008, leading to institution of Shikarpur P.S. Case No. 49 of 2008, under Sections 304 B and 498A of the Indian Penal Code. The cause for making such application was that the appellant was of young age and was going to remarry and was threatening to kill the minor child and was in a position to expose the said minor to a situation in which he would die and in case of second marriage of the appellant, emotional well being and welfare of the minor was in great danger. The minor boy in question was born on 14.12.2006. The Miscellaneous Case No. 40 of 2008 was contested between the parties in which on behalf of the respondent two witnesses were examined whereas on behalf of the appellant seven witnesses were examined. P.W. 1 was the respondent himself and he has reiterated the stand taken in the petition for custody whereas P.W. 2 is the brother of the respondent who has also supported the case of the respondent. Various exhibits and materials were produced before the Court below including the certified copy of the judgment of Sessions Trial No. 278 of 2009 dated 20.9.2010 which arose out of Shikarpur P.S. Case No. 49 of 2008 by which the learned 1st Additional Sessions Judge, Bettiah has found the appellant and his parents guilty of causing death for dowry of the wife of the appellant and had sentenced the appellant to life imprisonment and his parents to rigorous imprisonment for ten years. Seven witnesses were examined on behalf of the appellant including the respondent himself, his unmarried sister, cousin brother of the appellant, tutor of the minor boy and co-villagers. From the order sheet dated 28.4.2010 of the Court below it is apparent that the minor boy was also brought before the Court and the Court had the opportunity to put a few questions to him also. After considering the case of the rival parties, the Principal Judge, Family Court, Bettiah by the order under appeal dated 17.5.2011 allowed the petition for custody of the minor child on contest and directed the appellant, his mother and sister to hand over the child to the respondent.

1. Learned counsel for the appellant has submitted that the Principal Judge, Family Court, Bettiah has passed an order for handing over custody of the child by the grand mother and the paternal aunt (Bua) of the minor child which cannot be sustained since they were not party to the proceedings. He also submits that the maternal uncle does not come in any category of guardian under the Mahomedan law and thus the order under appeal was not sustainable. He has referred to the evidence adduced before the Court concerned to show that all the seven witnesses examined on behalf of the appellant have consistently stated that the minor child was save and happy living with the family of the appellant.

5. Learned counsel for the appellant relies upon the decision of the Honble Apex Court in the case of R. V. Srinath Prasad Vs. Nandamuri Jayakrishna reported in A.I.R. 2001 Supreme Court 1056, the relevant being at paragraphs no. 9, 10 and 11. He points out that as per the said judgment custody of the minor child is a sensitive issue also involving sentimental attachment and such matters should be t