The welfare of the child is the paramount consideration in appointing a guardian, and the court should give due weight to the child's preferences, even if it means deviating from the rights of the parents.

1. This Civil Miscellaneous Appeal is against the order passed by the learned Principal District Court, Erode in GWOP No. 53 of 2005 as regards the appointment of guardian of two minor children.

2. The appellant herein is the father of the minor children, Sanjuktha and Vigneswaran. Admittedly, the relationship between the appellant herein and the respondent is a strained one. The respondent has filed HMOP No.20 of 2002 for judicial separation on the file of the Principal Subordinate Judge, Erode. The respondent has filed a petition under Section 7(a), 8 and 10 of the Guardian and Wards Act to appoint her as the guardian of the minor children. The learned Sub Judge passed an order on the application allowing the mother to be appointed as the guardian of the two minor children. Aggrieved by the same, the father has come on appeal before this Court, contending that contrary to the desires of the children and much against their interest and without any due regard to the wishes of the minor children, the Court below had passed the order appointing the mother as the guardian and sought permission of this Court to ask the minor children to appear before this Court to express their desire and preferences to stay either with the mother or with the father.

3. In the meantime, the respondent had moved this Court in HCP 561 of 2010 that the husband the appellant herein had forcibly taken the custody of the children. The Division Bench adjourned the hearing of the case and directed the listing of the C.M.A. to have the benefit of the order in the C.M.A.

4. A reading of the judgment of the Court below shows a comparison of the kind of education given by the mother to the minor son till he left the mother to join the father. The Court below pointed out that the appellant herein had not filed any evidence to prima facie prove that he had taken steps for the better education of the minor children. The Court below considered the evidence of the appellant only to come to the conclusion that the appellant had not taken any reasonable step to provide better education and basic requirements of the minor children. The respondent, however, relied on the second marriage contracted by the father as a circumstance to show that the father was not interested in the welfare of the minor children. Referring to the dispute as to the birth of child and Exs.A4 to A13, the Court below held that it was appropriate that the mother be appointed as the guardian for the minor children. Thus the Court below allowed the petition filed by the respondent. Barring the above evidence I do not find anywhere in the judgment of the Court below that the interest of the minor children was ascertained before passing the order.

5. Considering the sensitivity of the issue and to ascertain the desire of the children, I directed the children to be brought before this Court. Accordingly minor children Vigneswaran aged 12 years and Sanjuktha aged 14 years appeared before me today and in the presence of the parties and their respective counsel, I examined the children.

6. I have examined both the minor children viz., Vigneswaran aged 12 years and Sanjuktha aged 14 years in the presence of the parties and their respective counsel. Minor Vigneswaran categorically stated that even though he had stayed with his mother for five years, he opted to stay with his father and his sister Sanjuktha, who has always been living with the father. When questioned, both the children expressed their desire to be with the father as their guardian, in preference to the mother, the respondent herein. In fact, the children raised a question emphatically and wanted an answer to be elicited from the respondent as to why the mother preferred the boy child and not the girl child for whom she never showed any affection or sought for her custody all these years and shown any interest even to see her. The examination of the children in the open Court clearly showed that contrary to the allegations of