( 1. ) THIS is an appeal under Section 47 of Guardians and Wards Act, 1890 against the judgment dated 25-2-2004. The appellant has claimed the custody of his daughter Ku. Roshani from her maternal grandfather.

( 2. ) THE case of the appellant/applicant is that he is the natural father of Ku. Roshani and is in employment of Railways. It is submitted that wife of the applicant Smt. Batto Bai died on 29-11-1994. At that time Ku. Roshani was aged about one year. Looking to the infancy of Ku. Roshani at the time of death of her mother, she was permitted to reside with the non-applicant No. 2, who happened to be the father of Batto Bai. It is stated that Ku. Roshani was aged 8 years at the time of submitting the petition under Section 6 of Hindu Minority and Guardianship Act.

( 3. ) THE appellant has stated that he is staying at Jabalpur whereas, the respondent No. 2 is residing at Gadarwara. For the welfare of Ku. Roshani, it is contended that the same may be secured if the custody of Ku. Roshani is handed over to the appellant being her natural father. Moreover, it is stated that the appellant has good means for upbringing of his daughter whereas, the respondent No. 2 is aged about 65 years and has no source of income. So, it is contended that the welfare of Ku. Roshani will be more protected if her custody is handed over to the appellant.

( 4. ) THE defendant/respondent No. 2 opposed the claim of the appellant, he contended that Batto Bai was tortured mentally and physically by the appellant and the ailment was developed in her due to this. It is stated that Batto Bai ultimately died due to torture inflicted by the appellant. It is stated that the appellant did not take care for up-bringing of his daughter and has been directed to pay the maintenance at the rate of Rs. 300/- per month which, too, has not been paid. It was denied that the respondent No. 2 has no income of his own. It is submitted by the respondent No. 2 that he is taking very much care of Ku. Roshani, who is being regularly sent to school to seek education. It is submitted that the welfare of Ku. Roshani can not be secured by handing over to her father.

( 5. ) AFTER recording the evidence, the learned Trial Judge dismissed the application under Section 6 of the Hindu Minority and Guardianship Act, 1956 on 25-2-2004, holding that the appellant has not cared to look after Ku. Roshani and has not taken steps to obtain her custody. Relying upon the statement of Ku. Roshani herself recorded by the learned Subordinate Judge, it has been held that her custody can not be directed to be handed over to the appellant, as the same will not be in her welfare. Hence, the present appeal. ( 6. ) SHRI Sheel Nagu, learned Counsel for the appellant appeared and made submissions in support of the claim for custody of daughter. None appeared for the respondents though served. However, in the absence of learned Counsel for the respondents this Court is fully aware that in the matters relating to custody of the minor, the welfare of the minor is predominant consideration. Hence, even though it is open to the Court to look into the views of a minor, who is capable of forming intelligent opinion, it is not bound to accept the minors choice if her welfare may be more secured according to the Court by handing over her custody to a person capable of providing good education, status and protection. The conflicting principle for the custody of

minor child are the legal right of the natural guardian and welfare of the minor child. In case of conflict the welfare of minor is of paramount consideration. However, the legal right of the natural guardian may be protected ensuring the welfare of the minor child. This Court is quite competent in the present case to take care of both the things. Obviously, the right of father to the custody of minor child is not absolute but is subservient to the paramount consideration of the welfare of minor child. Applying these parameters, the case in hand is li