Hon'ble CHAUHAN, J.—In this case the tug of war is over the custody of two children, Nikhil, aged about thirteen and a half years and Chandini @ Charvi, aged about twelve years. While the Appellants, the grand-parents, who have brought up the children almost ever since their birth, claim the right to their custody, the respondent--the mother--claims the right on the basis of her motherhood. Since the appellant No. 1, the grandfather has expired during the pendency of this appeal the contest is now reduced to between the appellant No. 2, the grand-mother, and the respondent-mother. (However, for the sake of convenience the word ‘the appellants’ shall be used, but it shall connote only ‘the appellant No. 2’). The appellants are aggrieved by the judgment dated 20-04-07 passed by the Additional District Judge No. 2, Sri Ganganagar, Camp Suratgarh, where by the learned judge has granted the custody of the children to the respondent-mother.

2. Briefly the facts of the case are that on 10.10.1997, the appellants’ son, Rajesh Kumar married Anita, the respondent, as per the Hindu rites and customs. Out of the wedlock, Nikhil was born on 1.5.1999, and Charvi on 6.12.2000. Initially, the relationship between the husband and the wife was cordial. However, after Nikhil’s birth, it began to sour. While the appellants and the respondent have held each other responsible for the souring of the matrimonial relationship, the fact remains that on 9.5.2002 the couple parted. The children were left with the father and the grand-parents, the appellants. Subsequently, on 8.10.2003, Rajesh Kumar, the father, committed suicide, leaving the kids to the care of the appellants. According to the appellants, the respondent did not come to grieve with the family at the loss of her husband and of their son. Ever since 2002, the children are under the care of the appellants. Presently, the children are residing with the grand-mother, the appellant No. 2.

3. On 18-3-2004, the respondent moved an application for the custody of the children under Section 25 of the Guardians and Wards act, 1890 (‘the Act of 1890’, for short) and under Section 6 of the Hindu Minority and Guardianship Act, 1956 (‘the Act of 1956’, for short). In order to buttress her case, Smt. Anita examined a number of witnesses and submitted a few documents. In turn, the appellants also examined a number of witnesses and submitted a few documents. After going through the oral and documentary evidence, by judgment and decree dated 20-04-2007, the learned Judge granted the custody of the children to the respondent-mother. Hence, this appeal before this court by the grand-parents.

4. Mr. R. K. Singhal, the learned counsel for the appellants, has strenuously raised the following contentions before this court: firstly, the learned judge has based the decision not on the evidence produced by the parties, but on basis of presumptions, conjectures and surmises. The learned judge has presumed that “a mother is always the well-wisher of the children.” Therefore, notwithstanding the fact that the respondent had abandoned the children just after they were born, still he has given the custody to her. Secondly, the learned judge has not elicited the views of the children ostensibly on the ground that they are too young. According to the learned counsel the said ground is no longer available as the children are now more mature, Nikhil being thirteen and a half years old, and Charvi being twelve years old. Hence, their wishes should be considered by this court. Thirdly, the learned judge has ignored the fact that the children have always stayed with the appellants. The appellants have been looking after the welfare of the children, at least since the year 2000. Even after the death of appellant No. 1, the appellant No. 2 has been educating the children in the D.A.V. School, one of the best English medium schools in Sri Ganganagar. Moreover, the learned Judge has ignored the close harmony and solidarity of the pater

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