A. P. SHRIVASTAVA, J.

( 1 ) THIS appeal is filed by the appellant under Section 19 of family Court against the order dated 15/7/2004 passed by Presiding Officer of the Family Court, Smt Prabha Khare in Case No. 2/02, by which the petition filed by the respondent No. . 1 under Section 25 of the guardians and Wards Act and allowed the petition by ordering to give the custody of minor to respondent No. 1.

( 2 ) IN short, the facts of the case are that the respondent No. 1 married with the son of the appellant in the year 1995, After marriage one son and one daughter were also born. On 30/10/2002, the husband of respondent committed suicide and after his death appellant taken away his minor son anup forcefully and kept in his custody. As respondent No. 1 is natural guardian so she is entitled to have the custody of the minor,

( 3 ) THE case of the appellant is that he has filed complaint against the respondent no. 1 regarding murder of his son (husband of respondent No. 1) and the Investigation is going on. Respondent No. 1 is responsible for murder of his son and the minor son anup was 'the only eye-witness in the incident. Therefore, respondent No, 1 want to take custody of the minor son. After the death of husband of the respondent No. 1, she herself left the son, therefore, looking to the welfare of the minor it is necessary that he should be kept in the custody of the appellant.

( 4 ) THE Family Court after framing issues and recording the evidence of both the sides held that the minor is in custody of appellant, but he was not taken away forcefully. But the Court held that being natural guardian, respondent No. 1 is entitled for custody of the minor.

( 5 ) THE impugned order has been challenged on the ground that the learned Court passed the order against law. The minor was examined in the Family Court and he de-posed that he want to stay with the appellant. The trial Court Ignored the wishes and welfare of the minor. Therefore, the order deserved to be set aside.

( 6 ) DURING the course of argument. rival contentions have been raised by the counsel for the parties.

( 7 ) IN the Family Court respondent No. 1 nirmala was examined as AW-1 and she stated that her husband died on 30-10-2002 by committing suicide. Her daughter is residing with her, but her son Anup was in the custody of her in-laws and the appellant was not permitting to meet him. Her son was reading in Class 3 at Gwalior but she has no knowledge in which class he is studying in the village now. In para 8 of the cross-examination she deposed that case of her husband was under consideration in police station Gole-ka-Mandir and there was acquisition (accusation) of murder of her husband along with some other persons. She denied that her son is the only eye-witness of this incident, therefore, she want to take him in her custody. Sunita (A,w. 2) corroborated the version of Nirmala (AW 1 ). She is sister-in'law of Nirmala.

( 8 ) FROM the side of the appellant, Deshraj singh (NAW 1), Ramkishore Singh (NAW 2)and minor Anup (NAW 3) were examined. Ram Kishore Singh deposed that after the death of his son, Anup was not taken forcefully. Nirmala herself left him to his place. In this regard Panchnama (Ex. p1) was prepared in which Nirmala and her sister-in-law have also signed. It is stated that Anup was studying in Class 3 at Gwalior but as no papers were given by respondent No. 1, therefore, he was admitted in Class 1. Deshraj Singh (NAW 1) supported the version of Ram Kishore Singh (NAW 2 ).

( 9 ) ANUP was examined as NAW 3. He was examined on 23/12/2003 and his age was written in the deposition sheet as 11 years. After preliminary questions he was examined by the Court and deposed that his " grand-father, the present appellant, has not taken him forcefully and he want to remain with his grand-father. He also deposed that his mother is responsible for the death of his father. Therefore, he has no confidence in her. In cross-examinations also he expressed hts willingness

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