The welfare of the minor child is the paramount consideration in appointing a guardian, and the court must consider various factors to determine the best interests of the child.

JUDGMENT

Rajeev Kumar Shrivastava,J. - Appellants has preferred this Misc. Appeal under Section 47(a) of the Guardians and Wards Act, 1890 (for brevity, the 'Act') assailing the order dated 22.7.2019 passed by First Additional District Judge, Dabra, District Gwalior in MJC No. 07/2017 (Aditya Trivedi vs. Ramkumar Swami and another), whereby the application preferred by the respondent under Section 7 of the Act for custody of his daughter has been allowed.

2. Brief facts of the case are that on 30.4.2012 marriage was solemnized between respondent and daughter of appellants, namely, Smt. Bharti and out of their wedlock girl Divya was born. It is pertinent to mention that at the time of filing of application under Section 7 of the Act, Divya was aged about four years. It is further alleged that soon after the marriage of the respondent, Smt. Bharti committed suicide on 2.10.2013. A false case was registered against the respondent for the offences under Sections 498-A and 304-B of IPC and under the garb of the false FIR the appellants took daughter Divya into their custody. Thereafter the respondent has been acquitted by the trial Court in connection with the aforesaid offences and appeal against the judgment of acquittal has also been dismissed. Thus, the respondent being natural guardian of daughter Divya moved an application under Section 7 of the Act for custody of his daughter. Reply of the application has been filed by the appellants denying the averments pleaded in the application. The First Additional District Judge, Dabra framed issues and after recording evidence of the parties directed vide impugned order to the appellants to hand over forthwith the custody of daughter Divya to the respondent. Feeling aggrieved by the said order, the appellants have preferred the instant appeal.

3. Learned counsel for the appellants attacks the impugned order on the ground that the order is illegal, without jurisdiction, arbitrary and contrary to the settled principles of law. The Court below has ignored the fact that daughter Divya was under her grandparent's upbringing since when she was 6 months old. The Court below has failed to consider that paramount consideration is welfare of child and the respondent is not able to provide good education, atmosphere and other facilities to the daughter and he has not made any attempt during the last five years to seek custody of his daughter. Hence, prayed for setting aside the impugned order.

4. Per Contra, learned counsel for the respondent opposed the submissions put forth by learned counsel for the appellants and supported the impugned order.

5. Heard learned counsel for the rival parties and perused the record.

6. Sections 7 of the Act reads as under :-

' 7. Power of the Court to make order as to guardianship.--(1) where the Court is satisfied that it is for the welfare of a minor that an order should be made-- (a) appointing a guardian of his person or property, or both, or (b) declaring a person to be such a guardian, the Court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act. "

7. The following matters are required to be considered by the Court in appointing guardian :-

(i) In appointing or declaring guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(ii) In considering what will be the welfare of the minor, the Court shall have regard to the age, se