The welfare of the minor is the paramount consideration in appointing a guardian, and the conduct and character of those associated with the minor should be given overriding consideration.

Manoharan, J.

Appellant is the counter petitioner in O.P.(G&W) No. 296 of 1991 on the file of the District Court, Ernakulam. Respondent instituted O.P.(G&W) 296 of 1991 under Ss.9, 10 and 25 of the Guardians and Wards Act, 1890 (for short'the act) praying that she may be appointed the guardian of her minor son Anith who is now living with his father, the appellant. The child was born on 23-3-1985; and when the O.P. was filed he was aged 51/2 years.

2. Appellant and respondent have two sons of whom Anith is the elder and the younger is aged 21/2 years. The younger son is living with the respondent. The parties are Christians. Respondent alleged that in April 1990 appellant developed illicit relationship with Sona Marrimen, her youngest sister which culminated in her elopement with the appellant and that PW-2 the mother of the respondent had to file O.P.7396 of 1990 for the issue of a writ of habeas corpus. Both the appellant and Sona Mammen appeared before the court and stated that they are living together of their free will and consent and that she has attained majority. Respondent alleged that the appellant is keeping the said Sona Mammen as his concubine. She also alleged, the appellant used to consume liquor. Therefore, she alleged that, it is against the welfare of Anith to permit him to be with the appellant. Respondent is residing with her mother and her another sister at Ernakulam; she is in a position to provide necessary education and maintain him.

3. Appellant contended that Sona Mammen is residing with the appellant only as his sister-in-law, that the minor child is studying in the First Standard in Girideepam English Medium School at Kanjikuzhi, Kottayam and that his mother is looking after the welfare of the appellant and his son. He maintained that his mother is rich and capable of looking after her only son the appellant and his minor son. He contended that the respondent does not have sufficient means to maintain the minor.

4. On behalf of the petitioner P.Ws.1 to .3 were examined. PW-1 is the respondent and PW-2 is her mother. Appellant was examined as rw-1. Respondent produced Ext's A1 and A2, and the appellant produced Ext. B1.

5. After considering the evidence tendered by both sides, the learned District Judge allowed the Original Petition appointing the respondent as guardian of her minor son Anith. Learned District Judge also directed that the respondent will not obstruct the appellant from seeing the child for a reasonable time once in a month either at the house of the respondent or at the educational institution in which the child will be admitted.

6. Learned counsel for the appellant raised two points against the order of the learned District Judge. It was contended that, learned District Judge committed a grave error as he did not ascertain the preference of the minor as enjoined under S.17(3) of the Act. The other point urged was irrelevant matters weighed with the learned District Judge in reaching the conclusion. According to the learned counsel the fact that Sona Mammen was residing with the appellant has nothing to do with the welfare of the minor. On the other hand, the learned counsel for the respondent contended that in evaluating the welfare of the minor, the conduct and disposition of the appellant is relevant and is of paramount importance. According to him failure to ascertain the preference of minor cannot affect the conclusion as the same is not mandatory.

7. In the circumstance we may first deal with the latter contention of the learned counsel for the appellant as preference of the minor is only one of the factors to be taken into consideration in considering the welfare of minor.

8. S.17(1) of the Act enjoins that in appointing the guardian of a minor, the court should "be guided by what, consistently with the law to which the minor is subject appears in the circumstance to be for the welfare of the minor". Sub-section (2) thereof states that in considering the welfare of the min