( 1 ) THIS appeal has been filed under Section 47 of the Guardians and wards Act, 1890 (hereinafter referred as 'the act') against the order dated 25-8-2004 passed by the -District Judge, Raisen, in misc. Civil Case No. 32/2003.

( 2 ) AN application under Section. 7 of the act was filed by the present appellant that he and respondent were legally married in accordance with the customs of the Muslim law on 1-11-1999. The marriage was performed at Raisen. The appellant is from bhopal. After the marriage took place the appellant and respondent resided at Bhopal. Thereafter some disputes arose between the appellant and the respondent and which is not the subject-matter of this appeal, however, the position which exists today is that the appellant is residing at Bhopal along with his family and respondent (wife) is residing with her parents at Raisen. This fact is no more in dispute that on 29-4-2001 female child was born from the wedlock of the parties. The birth took place at Bhopal.

( 3 ) AS per the case of the appellant, after the relations became strained between the parties the wife left the company of her husband and started living at Ralsen since 12-6-2001. She also carried with her minor female child Mariam alias Juhi. Thereafter on 18-12-2001 the brother of respondent brought Mariam alias Juhi to appellant's house and at that time she was only seven months and 15 days old and handed over her to the appellant by saying that he should take care of his daughter. The appellant apprehended that some mischief may be caused on behalf of his wife and, therefore, he lodged a report on 18-12-2001 in police station. Since 18-12-2001 Mariam is living with the appellant. On these premised pleadings, it has been prayed by the appellant in his application filed under Section 7 of the act that being the natural father and guardian of Mariam alias Juhi, he be declared as the guardian of minor child Mariam.

( 4 ) A reply was filed on behalf of the wife that she was living with appellant up to 2002 at Bhopal. She is still residing at Bhopal. According to her in the month of June, 2001 her husband (appellant) left her to her parents house. On the occasion of Id festival of 2002 the appellant under the false pretext, to wander Mariam succeeded to take her out from the parents' house of the respondent and thereafter took Mariam to his house and since then she is living with him. The respondent submitted report and also filed application under Section 97, Cr. P. C. and thereafter the appellant has filed this application. It has been prayed by her that this application be dismissed and innocent female child Mariam be delivered to her.

( 5 ) THE Court below after framing the issues and recording the evidence of the parties came to hold that Mariam alias Juhi is residing with the appellant since 18-1,2-2001. The story put forth by the respondent that on the Id festival the appellant managed to take Mariam with him is not proved. However, the Court below came to hold that respondent had not abandoned her child. The Court below while deciding issue No. 2 also came to hold that respondent was sitting idle is not proved, on the contrary she was doing the needful to obtain Mariam. The court below though dismissed the application of appellant but did not direct to deliver the female child Marium alias Juhi to the respondent for the simple reason that the wife (respondent) has not filed a separate application under the Act. Hence this appeal by the husband.

( 6 ) IN this appeal, Ku. J. Aiyer, learned counsel for the appellant has argued that mariam is residing with the appellant since 18-12-2001 and till the application was filed by him under Section 7 of the Act, respondent did not care to file appropriate application to take the custody of minor Mariam. It has also been put forth by her that in an application filed under Section 7 of the Act, paramount consideration is the welfare of the minor child. According to her, since 18-12-2001 mariam is residin

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