The welfare of the children and evidence of adultery and immorality were central to the court's decision in appointing a guardian under the Guardians and Wards Act.

Rajendra Mahajan, J.

The appellants have preferred this appeal under Section 47 of the Guardians and Wards Act, 1890 (hereinafter referred to as "the Act") being aggrieved by and dissatisfied with the order dated 06.04.2013 passed by the First Additional Sessions Judge, Damoh in Guardian Case No.03/11 titled Mahfooj Khan v. Parveen Begam and three others, whereby the respondent has been appointed as guardian of minor appellant Nos. 2 to 4 under Section 7 of the Act by allowing the application filed by him.

2. The respondent filed an application before the court below on 27.08.2011 under the provisions of Sections 7 and 8 of the Act and as per the rights of Hizanat (Custody) of minor child prevaling in Sunni Muslims governed by the Hanafi Law. His case in brief is that he got married to appellant No. 1 Parveen near about 17 years before the date of filing of the application in village Kalehara, Tehsil Jabera, District Damoh according to Muslim rites and customs. From their wedlock, appellant Parveen gave birth to appellant Nos. 2 to 4 and a daughter Chandni. At present appellant Nos. 2 to 4 are minors and they are with appellant Parveen while Chandni, who is their eldest child, lives with him. As they were staying separately, appellant Parveen had filed an application under Section 125 of the Cr.P.C. claiming maintenance for herself and appellant Nos. 2 to 4 in the Court of Judicial Magistrate First Class, Damoh, which was registered as miscellaneous criminal case No.41/2010. The aforesaid case was finally disposed of vide order dated 05.04.2011. The learned J.M.F.C. has refused to grant maintenance to appellant Parveen on the ground that she is living in adultery but he has granted maintenance to appellant Nos. 2 to 4 to the tune of Rs.800/- (rupees eight hundred) per month each till they attain majority.

3. The respondent has alleged that in the night of 08.04.2010 in his house at Garhakota town when he was in Sagar, his daughter Chandni saw appellant Parveen having sex with his neighbour Pappu @ Majid. On being seen in a such position, she asked Chandni not to disclose her physical relationship with Pappu to her father/respondent in spite of which she narrated the entire incident to him. Thereafter, he filed complaint case No.201/2010 in the Court of Judicial Magistrate First Class, Garhakota District Sagar against Pappu for his prosecution under Section 497 of the IPC, which is still pending.

4. It is further the case of the respondent before the court below that appellant Parveen neglects to take proper care of appellant Nos. 2 to 4 and that she is leading an adulterous life which is having an adverse impact upon their lives. Appellant Nos. 2 to 4 are living with appellant Parveen in village Kalehara, where no proper education facilities are available. Moreover, she is totally illiterate, and she does not have any independent source of income. As also she maintains them upon the allowance being granted by him as per the court-order, whereas his financial condition is very sound. Under the circumstances, he wants to keep appellant Nos. 2 to 4 with him and to provide them proper education for betterment of their future lives. On the basis of the aforesaid assertions it is prayed by him that he be appointed the guardian of appellant Nos.2 to 4 and appellant Parveen be ordered to hand over their custody to him.

5. In the written statement filed by appellant Parveen, she has not disputed the facts that she got married to the respondent as per Muslim rites and customs, that from their wedlock she gave birth to appellant Nos. 2 to 4 and Chandni, that Chandni is their eldest child and that she resides with the respondent, that she and appellant Nos. 2 to 4 are presently residing in village Kalehara, that she has no independent source of income and that she maintains appellant Nos. 2 to 4 upon the maintenance allowance being given by the respondent and that the learned J.M.F.C. has not granted her maintenance allowance. However,