IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Appeal From Order No. 538 of 2007 Vinod Kumar Sharma .. Appellant. Versus Mantri Prasad Bahuguna .. Respondent. Mr. Rajendra Dobhal, learned counsel for the appellant. Mr. Prem Sagar Uniyal, Advocate for the respondent. Dated: May 20, 2008 Hon’ble B.C. Kandpal, J. This appeal under Section 47 of the Guardians and Wards Act, has been preferred against the judgment and order dated 25-10-2007, passed by the District Judge, Tehri Garhwal, in Civil Misc. Case No. 33 of 2005, whereby Sri Mantri Prasad Bahuguna was appointed guardian of minor Km. Swati daughter of Sri Vinod Kumar Sharma. 2- Brief facts giving rise to this appeal are that Sri Mantri Prasad Bahuguna, maternal grandfather of minor Km. Swati, filed a petition under Sections 7, 8 and 9 of Guardian and Wards Act, 1890, for his appointment as guardian of person and property of minor Km. Swati. 3- The Opposite Party/appellant Sri Vinod Kumar Sharma, contested the petition by filing his objection, admitting the relationship between the parties as well as the fact that his wife Geeta Rani and minor daughter Swati stayed at the house of his father-in-law Mantri Prasad. He also admitted that he has married again after the death of the mother of Km. Swati. He also alleged that he is the natural guardian of Km. Swati and has been visiting and looking after his minor daughter at village Sabli from time to time, but her maternal 2 grandparents have detained the minor for which he has filed a civil suit in Jagadhari for guardianship. He also alleged that the mother of minor Swati had come to her father on her own sweet will when Swati was infant; the applicant Mantri Prasad Bahuguna is an old person while he, being father of Km. Swati, can very well look after her and his second wife has no objection in keeping Swati at his house. 4- In support of their contentions, parties adduced evidence before the District Judge. The learned District Judge, after hearing counsel for parties and perusing the material on record, allowed the petition and appointed Sri Mantri Prasad Bahuguna, guardian of person and property of minor Km. Swati vide impugned judgment and order. 5- Feeling aggrieved, the appellant has preferred this appeal before this Court. 6- Heard learned counsel for the parties and perused the record. 7- Learned counsel for the appellant has submitted that the appellant is the natural guardian and father of Km. Swati, and as such he ought to have been appointed guardian of person of Km. Swati, but the Court below has committed illegality by appointing the maternal grandfather her guardian. Learned counsel also contended that the appellant is aged about 40 years and should have been given priority over the maternal grandfather aged about 62 years, who is suffering from heart disease. 3 8- On the other hand learned counsel for the applicant/respondent has argued that Km. Swati is residing with her maternal grandfather from her birth when she came to him with her mother at the age of 7 months, the father never looked-after the ward and her mother, who is now deceased, and now she is about 12 years of age and her interest is protected at the hands of her maternal grand-parents. 9- After having considered the rival contentions of the learned counsel for the parties and going through the material on record, I do not find any substance in the argument advanced on behalf of the appellant. In the case like this the Court is required to be guided by the object of welfare of minor and if the minor is old enough to form an intelligent preference, that preference must be considered. For this purpose the statement of minor Km. Swati is relevant. Km. Swati was examined as P.W.2. She has stated on oath that her mother has died when she was studying in class-III and till her childhood she was living with her maternal grandfather. Before this proceeding she has never seen her father. Her father never came to see her and she was brought up by the applicant. This witness also stated that she even does not recognize her grandfather. She has emphatically stated that her father never came her maternal grandparent’s house to see her. Km. Swati in her statement has clearly refused to go with her father. The applicant Sri Mantri Prasad Bahuguna has also examined himself as P.W.1 and deposed that his daughter Smt. Geeta alias Urmila was married to Vinod Kumar Sharma. She was forced to leave the house of her husband in July 1996 and at that time Km. Swati was 7 months old. Since then Swati and her mother were living with this witness. Urmila has died on 3.6.2003 and after her death the 4 minor girl is living continuously with the applicant and he is arranging for her food, clothing and education. He also deposed that Opposite Party Vinod Kumar has never taken care of the minor child or her mother. This witness also stated that the father of Km. Swati has no attachment with the child, rather he has remarried with another lady and it is very difficult for the minor ward to live with her stepmother. The Opposite Party/appellant although has deposed in his statement that he had gone to see his daughter at her maternal grandfather’s house but he was not permitted to see her and turned out after beating him. It is pertinent to mention here that the appellant has not produced any reliable evidence in support of his above allegation and his uncorroborated interested statement cannot be believed. 10- Learned counsel for the appellant has also admitted this fact that after the death of mother of Km. Swati, the appellant did not send any amount for the maintenance of Km. Swati and this fact clearly indicates that the father has no love, affection and care of the minor daughter. On the other hand the welfare of the minor is safe at the hands of the maternal grandfather. The minor is taking her education and is leading a happy life at her maternal grand parents house. I hold that the learned District Judge was justified in appointing Sri Mantri Prasad Bahuguna, maternal grandfather, as guardian of the person and property of minor Km. Swati. I do not find any infirmity and illegality in the impugned judgment and order and the same is liable to be confirmed. 11- For the discussion made above, the appeal lacks merit and is liable to be dismissed. 5 12- Accordingly the appeal is dismissed. The impugned judgment and order dated 25-10-2007 is confirmed. 13- However, it is made clear that if the appellant Vinod Kumar Sharma, wishes to see the daughter Km. Swati, he is allowed to visit the house of the maternal grandparents of Km. Swati, once in two months to see her. If Km. Swati also wishes to go with her father, then he may take Swati with him to his house at Radhaur, Haryana for 10 days at a stretch. The maternal grandparents of Km. Swati shall not create any hindrance in the meeting of the father and daughter. (B.C. Kandpal, J.) ISB