[Per : Hon’ble Prafulla C. Pant, J. (Oral)]

This appeal, preferred under Section 19 of Family Courts Act, 1984, is directed against the judgment and order dated 16.09.2003, passed by Principal Judge, Family Court, Dehradun, in Guardians and Wards cases No. 5 of 2002 and 8 of 2002, filed by the present appellant and respondent no. 1 respectively, whereby the respondent’s petition for custody of his children is allowed and the petition of the maternal grand father of the children has been dismissed.

2. Brief facts of the case are that respondent M.K. Agarwal, got married to Neerja Agarwal (since deceased) on 22.11.1991. out of the wedlock, two children namely Anirudh (son) and Saumya (daughter) were born on 05.09.1992 and 05.04.1995 respectively. On 23.08.1998, Neerja Agarwal died. On the complaint of her parents, a crime No. 575 of 1998, was registered relating to offences punishable under Sections 498A/304B I.P.C. with police Station Kotwali, Dehradun. It appears that M.K. Agarwal (respondent No. 1) stood trial and finally acquitted of the change on 23.05.2001 by Additional District and Sessions Judge, Vth Fast Track Court, Dehradun. Meanwhile, the children lived with their maternal grand parents. Shri Yogesh Kumar Gupta (appellant) is maternal grand father of the children. Before acquitted of M.K. Agarwal of the charge framed against him in Sessions Trial No. 27 of 2000, Yogesh Kumar Gupta (present appellant) instituted a case before the District Judge, Dehradun, as Guardianship case No. 14 of 1998, for his appointment as guardian of the children. Also, the respondent filed a case for custody of the children. Both the cases were later transferred to the Court of judge Family Court, Dehradun, where the cases were renumbered as Guardian and ward cases No. 5 of 2002 and 8 of 2002m, which were disposed of vide common impugned order dated 16.09.2003.

3. We have heard learned counsel for the parties and also enquired from the children as to their willingness, and also perused the lower court record.

4. The trial court has allowed the petition of respondent no. 1 on the ground that he is natural guardian and that he has been acquitted during the pendency of the case of charge of offences punishable under Sections 498A and 304B I.P.C.

5. It is settled principle of law that what is important in the matters of custody of the children is their interest and welfare. That is the paramount consideration while giving custody of a child or appointing a person as guardian. In the present case no doubt respondent No. 1 M.K. Agarwal being father is natural guardian of the children but the circumstance of the case are such, which disentitle him of the custody of the children. Particularly for the reason that the mother of the children has died while in the company of respondent no. 1 who had to face trial relating to offences punishable under Sections 498A and 304B I.P.C. Though he has been acquitted of the charge, we are of the view that merely for that reason the custody need not necessarily be given to him.

6. During the pendency of this appeal, we directed the appellant to produce both the children in the court. Ms. Saumya was produced in the court on 17.07.2008. This Court made enquiries from her. She categorically stated that she wants to live with her maternal grand parents and does not want to go with her father. Master Anirudh Agarwal was produced in the court today and he also specifically stated that he is happy with his maternal grand parents and maternal uncle and does not want to go with his father. On none of the dates, the father appeared in person and he was represented through his counsel. Both the children, as told by them are studying in prestigious schools of Dehradun. Though minors, they are grown up children. In the special circumstances of this case, having considered submissions of learned counsel for the parties, we found that the trial court has erred in law in dismissing the application moved by the appellant