1. This appeal is directed against the order and decree made in GWOP.No.534 of 2004, dated 23.12.2004 on the file of the Family Court, Coimbatore.

2. For the sake of convenience, the parties are referred to as the petitioner and respondent.

3. Facts leading to the appeal are as follows:

Marriage between the parties was solemnised on 29.04.1994, as per the Hindu Rites and Customs and it was registered in the Office of the Registrar, Erode. Out of the wedlock, a male child was born. At that time, the petitioner was the owner of Oil Tanker lorries and doing business in the Coimbatore. Due to strained relationship, the respondent left the matrimonial home and filed M.C.No.245 of 2001 for maintenance in the Family Court, Chennai. The application was dismissed for default, since the respondent did not attend the Court. Thereafter, the respondent filed a Divorce Petition before the Family Court, Coimbatore, with false and untenable allegations. The petition was resisted. During the course of litigation, though the petitioner repeatedly demanded for the custody of the child, but the respondent refused to hand over the child. According to him, the respondent was living with her parents separately and that the minor child was a hosteller in Ooty, without any love and care.

4. It is the further contention of the petitioner that though he had made several attempts to see the minor child, all his attempts were in vain and that he was not even permitted to see his child in the hostel. As the respondent has not provided due care and attention to the child and not brought him in good atmosphere and considering the welfare of the child, he was constrained to file a petition under the Guardian Wards Act, for custody. The petitioner has further submitted that he is ready and willing to give all his attention, love and affection to the child, education in a good school and provide all the best, for the welfare of the child.

5. Mother of the child, resisted the petition, contending inter alia that the petitioner has no interest for the welfare of the child and that he has not even mentioned the date of birth of the child in the petition. She further submitted that she was ill-treated and harassed at the hands of the petitioner and therefore, she was forced to leave the matrimonial home. According to her, the child is given the best of education and as a mother, she has put in all her efforts, to provide everything that the child requires. She has denied the contention that as a hosteller, the child has lost the love and affection. She further contended that when the petitioner has refused to provide even reasonable maintenance to herself and the child, she was constrained to prefer M.C.No.245 of 2001 on the file of the Family Court, Chennai, but at that time, she was studying her Secretarial Course and subsequently, shifted to Ooty. In the said circumstances, she could not appear before the Family Court and consequently, the petition ended in dismissal for non-appearance. It is her contention that the petitioner had not shown any love and affection to her or to the minor son and for the abovesaid reasons, sought for dismissal of the Guardian Petition.

6. Before the Family Court, Chennai, in addition to the petitioner, Mr.Senthil Kumar and Mr.Palaniappan, were examined as Pws.1 and 2 respectively. Affidavit and counter affidavit in O.P.No.152 of 2001, filed for divorce by the respondent, were marked on the side of the appellant. The respondent examined herself as RW.1 and marked the reply affidavit of the appellant in the said O.P. On evaluation of the pleadings and evidence, the Family Court, Coimbatore, found that the petitioner has not made out a case for grant of Guardianship and considering the paramount welfare and interest of the minor child and the conduct of the parties, towards the welfare of the child, found that retention of custody and guardianship with the mother would be best suited for the child and accordingly, dismi