IMPORTANT POINT
Custody of child--The option of the child in itself would not be the only criteria to consider the welfare of the minor.

Ajai Lamba, J.:-This First Appeal against Order is directed against order dated 5.2.2007, passed by the Guardian Judge, Ludhiana.

2. Respondent No.1-Gurdip Singh, father of Harpreet Singh, filed an application under Section 25 of the Guardians and Wards Act, 1890 (for short ‘the Act’) praying for custody of the minor; namely Harpreet Singh, his son. Harpreet Singh was born on 5.7.1996. At the point in time when the application was filed, the minor was in the custody of his maternal grand parents; namely Rulda Singh (appellant) and Karnail Kaur (respondent No.2).

3. The grounds taken by respondent No.1, in brief, were that he is the natural guardian and had the right to claim title of being a guardian and, therefore, was entitled to the custody of the minor. The maternal grand parents were aged persons.

4. The application was opposed by the appellant and respondent No.2 on the ground that Karamjit Kaur, mother of the minor, had been ill treated by respondent No.1 and his relatives. No proper medical aid was given to her during her life time and, therefore, she had to be removed to her paternal home along with the minor. She, however, could not be cured and after prolonged illness died on 15.4.2001. Appellant and respondent No.2 had been maintaining the minor who had been admitted to a good school. The appellant and respondent No.2 had no son and only two married daughters, therefore, the minor could be given proper care.

5. The trial court has allowed the application of respondent No.1 on the ground that there was no material to indicate that Karamjit Kaur had been harassed or maltreated. Respondent No.1 had not contracted second marriage after the death of Karamjit Kaur and was in sound financial condition to take care of the minor. The minor, when questioned by the court, appeared to have been tutored as he had narrated the incident when he was 2/3 years of age, which is not possible. Another factor that has been taken into account is that respondent No.1 is the natural guardian of the minor, being the father and would be a better person as compared to the maternal grand parents to look after and provide education to his minor son.

6. Learned counsel for the appellant, while challenging the impugned order, has contended that the minor had remained in the custody of respondent No.1 only for one year. Option of the minor had been taken. The minor had clearly stated that he wanted to stay with his maternal grand parents i.e. the appellant and respondent No.2. In regard to the conduct of respondent No.1, it has been contended that respondent No.1 had never visited the minor after the death of Karamjit Kaur and no gifts had been given. It has been argued that the appellant is in good financial condition and the minor is studying in English medium school. The appellant has two surviving daughters who are married and no son.

7. Learned counsel for the appellant has further stressed on the issue that mother of the minor had been treated with cruelty and no proper medical aid had been given and, therefore, respondent No.1 was not entitled to the custody of the minor.

8. Learned counsel for the appellant has referred to Lekha v. P. Anil Kumar, 2007(1) RCR (Civil) 308, Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, AIR 1992 Supreme Court 1447, Ram Nath Anand and another v. Ravi Raj Dudeja, 2006(2) Marriage Law Journal 325, Buta Ram v. Veeru Ram @ Beeru Ram, 2001(2) Marriage and Divorce Judicial Reports 468 and R.V. Srinath Prasad v. Nandamuri Jayakrishna, 2001(2) RCR (Civil) 709.

9. Learned counsel for respondent No.1, on the contrary has asserted the right of respondent No.1 as natural father of the minor. It has been pleaded that the conduct of respondent No.1 has been above board as he had no reason to doubt with regard to the welfare of the minor, while his wife was alive. Immediately after the demise of Karamjit Kaur, mother of the minor, the application had been filed. The conduct of respondent No.1 in not g