JUDGMENT :

1. Heard learned counsel for the petitioners, learned counsel for the private respondents and learned A.G.A. for the State.

2. Corpus Vivan aged around 8 years and Divyansh aged around 3 years have been produced before this Court by respondent nos. 4 to 7. Corpus Vivan is identified his father Vijay Vikram, deponent in present petition. The second corpus Divyansh could not identify his father as he is too young. Corpus Vivan stated that he intends to reside with her Mausi and maternal grand parents. He expressed his dis-inclination to go or live with his father.

3. Learned counsel for the petitioners submitted that children who are corpus in present case are sons of deponent, who are too younger to decide their future. They are brainwashed by their maternal grandfather and Mausi (aunt). In-laws of deponent had taken away his both sons along with them after death of his wife Smt. Sweta, who died on 29.4.2022 and they are residing with their maternal grandparents for more than nine months and they have been produced by them who are impleaded as respondents in present case. Deponent operates a GST Seva Kendra. Deponent resides with his father who is retired Bank Manager and the deponent is although an accused in a Case Crime No. 89 of 2022 lodged on 1.5.2022 under Section 306 IPC on account of alleged suicidal death of his wife, however, he is enlarged on bail. He undertakes to ensure welfare of the children if they are granted in his custody.

4. Per contra, learned counsel for the private respondents submitted that atmosphere of the house of deponent is polluted. His own mother resides separately from his father. Private respondents are well educated people. Respondent no. 7, aunt (Mausi), of the corpus is a Bank employee in Bank of Baroda and all the respondents are taking due care of the corpus. They are receiving appropriate education in their supervision.

5. Learned counsel for the respondents placed reliance on a judgment of Hon'ble Supreme Court in Nil Ratan Kundu and Another Vs. Abhijit Kundu, (2008) 9 SCC 413 wherein Hon'ble Apex Court while interpreting provisions of Section 17(1), (2), (3), 7 and 4(1), 4(2) and (3) of Guardianship and Wards Act as well as Sections 2, 4, 6 and 13 of Hindu Minority and Guardianship Act, 1956 and Section 26 of Hindu Marriage Act held that in determining the question as to who should be given the custody of minor child, the paramount consideration is the welfare of the child and not the rights of the parents under statute for the time being in force. The legal position in India follows the doctrine laid down in English and American Law. In that case A was the son of the respondent. Allegedly, A' s mother, M had been continuously tortured by the respondent for bringing more dowry from her parents, the appellants here. On day M was brutally assaulted by the respondent and his mother which resulted in her death. The appellants herein lodged F.I.R. against the respondent and his mother under Sections 498-A and 304 IPC. The respondent was consequently arrested. A, who at that time was only five years old, was found in sick condition at the respondent's residence. His custody was then handed over to the appellants. The appellants maintained the child with utmost love and affection and got him admitted to a well-reputed school.

6. During the pendency of the criminal case, the respondent was enlarged on bail. He then filed an application under the Guardians and Wards Act, 1890 seeking custody of A. The appellants opposed that application. The trial court allowed the application and held that the respondent was the natural guardian of A and the present and future of A would be better secured in the custody of the respondent. Accordingly, it directed the custody of A to be "immediately" given to the respondent. This order was upheld by the High Court. The appellants then filed the present appeal by special leave.

7. Hon'ble Apex Court allowed the appeal filed by mother of the child and observed