The petitioner, grandmother of one Master

Prithviraj, is before this Court under Article 227 of

Constitution of India, assailing the order dated

23-08-2021 passed in G & WC No.20/2021, on the file

of

Senior

Civil

Judge,

Maddur,

(Annexure-M),

whereby, petitioner's memo for withdrawal of the

petition is rejected.

2. Heard learned counsel Smt. M. Kusuma,

appearing for petitioner and learned counsel Sri.

R.K.Thontadharya, appearing for respondent No.1.

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3.

Learned counsel for the petitioner would

submit that, petitioner, grandmother of the child by

name Master Prithviraj, aged 4 years filed petition

under Section 10 of the Guardians and Wards Act,

1890 read with Section 6 of Hindu Minority and

Guardianship Act, 1956, praying to appoint the

petitioner as guardian to the minor child and permit

her to retain the child in her custody till child attains

majority.

4. Respondent No.1 is the father of the child,

natural guardian. Respondent No.1, father of the child

also filed counter- claim under Section 10 of 1890 Act,

requesting the Court to appoint him as guardian and

to handover the custody of the child.

5. Thereafter, petitioner filed a memo dated

26-07-2021 to dismiss the petition as not pressed. To

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the said memo, respondent No.1 filed objections

contending that when the counter-claim is filed by

respondent No.1 claiming custody of the child as well

as to appoint him as guardian, the petition cannot be

dismissed.

6. The Family Court considering the memo as

well as the objections of respondent No.1, father of

the child, rejected the memo of the petitioner dated

26-07-2021 filed to dismiss the petition as not

pressed and gave liberty to respondent No.1 to seek

for transposing himself as petitioner. The said order is

under challenge in this petition.

7. Learned counsel appearing for the petitioner

would submit that the mother of the child died after

giving birth to the child Master Prithviraj. The

petitioner has taken care of the child since his birth

and hence, the petitioner filed an application seeking

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to appoint her as the guardian as well as to handover

the custody of the minor child. Learned counsel would

submit that Law permits handing over of the custody

of the child to the grand parents. It is also submitted

that since respondent No.1 has remarried, he would

not be entitled for custody of the minor child. In the

interest of minor child, the custody be given to the

petitioner, grandmother of the minor. It is also

submitted that because the father seeks custody of

the child, the child cannot be given custody to

respondent No.1 ignoring interest of the minor child,

as interest of the child is paramount. Thus, she

submits that the order passed by the Family Court

rejecting the memo is erroneous and it calls for

interference.

8.

Per

contra,

learned

counsel

Sri.

R.K.

Thontadharya, appearing for respondent No.1 justifies

the order passed by the Family Court. He submits

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that respondent No.1 has filed counter-claim seeking

appointment of father as guardian and also seeking

the custody of the minor child. When the counter-

claim is filed, the same shall be treated as suit and it

shall be tried as a regular suit. Learned counsel would

invite attention of this Court to order 8 Rule 6(A) of

CPC. Further, learned counsel would submit that,

father is natural guardian and he is entitled for

custody of the child. Therefore, when the counter-

claim of respondent No.1 is filed, the Family Court is

justified in rejecting the memo for withdrawal of G &

WC petition. Thus, he pays for dismissal of the writ

petition.

9.

The

petitioner,

grandmother

of

Master

Prithviraj, minor, aged about 8 years as on this day,

filed petition under Section 10 of 1890 Act, praying for

appointment as guardian and also for custody of the

minor child. Respondent No.1, on appearance filed

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counter-claim seeking appointment as guardian and

also praying custody of the minor child. At that stage,

petitioner file