THE HIGH COURT OF JUDICATURE AT PATNA MA No.423 of 2009 MR.SHARFUDDIN KHAN @ MUNNA son of Md. Naimuddin Khan, resident of village Majhauliya, P.O. Khabra, P.s.Sadar, Distt-Muzaffarpur. Versus 1.CHAMAN ARA wife of Md. Sharfuddin Khan, at present Mohall Imamganj, P.S.Town, Dist-Muzaffarpur 2. Md. Mazaruddin Khan @ Puttu son of Md. Sharfuddin Khan, at present living with her mother Chaman Ara at Mohalla Imanganj, P.S.Town, Muzaffarpur. ----------- 7. 27.1.2010. Heard learned counsel for the appellant and perused the judgment under appeal. Although there is delay in preferring the appeal, but we do not think the delay to be material and hence, we have considered the appeal on merits. The appellant wants custody of his younger son from his wife who is separate. The court below has considered entire materials in detail including the evidence of the younger son whose custody is in question. The boy has stated that he does not even recognize the appellant as his father and wants to live with his mother. It has come in evidence that the mother is taking good care of the boy and is imparting education in a school. It is also on record that the elder son is with the appellant and according to the allegations he is 2 not getting good education. Learned counsel for the appellant has submitted that there is no specific evidence that the appellant is not fit to be the guardian of the younger son and therefore, after the boy crossed the age of seven years, his custody should have been handed over to the appellant. In our view, once the boy has himself deposed that he does not recognize the appellant as his father, the appellant is unfit to have the custody of that boy, particularly, when the boy is happy and willing to live with his mother. We do not find any merit in this appeal and it is accordingly dismissed. ahk (Shiva Kirti Singh,J.) (Jyoti Saran,J.)