IN THE HIGH COURT OF JUDICATURE AT PATNA -------------- Miscellaneous Appeal No.626 of 2009 ---------- Appeal against the judgment and order dated 2-2-2009 passed by Principal Judge, Family Court, Muzaffarpur in Guardianship Case N0 27 of 2002. --------- Md. Mojib Sah, son of Qasim Sah, resident of Village- Bela Pachgachiya, P.S. Yahyapur, District- Muzaffarpur................................................. Appellant Versus Noor Ayesha Khatoon, widow of late Md. Mustafa Sah, presently residing at Village- Purushottampur, P.S. Maniyari, District- Muzaffarpur........ Respondent --------- 14 15-12-2011 Learned counsel for the appellant is permitted to remove typing error in the I.A. petition. Heard learned counsel for the appellant and learned counsel for the respondent at the stage of Order 41 Rule 11C.P.C. By the judgment and order under appeal dated 2nd February, 2009. the Principal Judge, Family Court, Muzaffarpur, has dismissed guardianship case no. 27 of 2002 instituted by the appellant for appointment as guardian in respect of custody of Md. Ansar Sah, minor. The latter is grand-son of the appellant and has lost his father several years ago. He is presently living with his mother, the 2 respondent. Admittedly, the age of the minor is around 13 years at the present. The court below has noted that originally the suit was filed for a declaration that the appellant is guardian of the minor both of his person and property but subsequently the relief was amended to the extent that he be appointed as guardian in respect of person of the minor. This was on account of lack of jurisdiction in the Family Court to grant guardianship in respect of property of the minor. The case of the appellant is that the respondent has remarried after death of her first husband who was the father of the minor and being a labourer she cannot look after the minor son. The case of the respondent is that she has not remarried and she is capable of taking care of the minor by working as a labourer and she is living with her own relations and is imparting school education to the minor. On the issue of remarriage of respondent the evidence has been considered in proper perspective for coming to the conclusion that none of the three witnesses of the appellant which included him also, claimed to have seen the marriage ritual nor any Nikahnama was produced. On 3 the other hand, four witnesses examined on behalf of respondent have denied the allegations of remarriage. They have also supported the case of the respondent that she is looking after the minor properly and the minor goes to school also. In order to find out the views of the minor who is now aged about 13 years, we had requested for his appearance in court along with the appellant and respondent. They are present in court and have replied to various questions put by the court. The minor is categorical in stating that he wants to live with his mother. He has also stated that he is attending school. The appellant produced before the Court a photo-copy of receipt of a fixed term deposit of Rs.50,000/- ( rupees fifty thousand only) in a Bank which is to mature in November, 2012 for a sum of Rs. 90,000/- ( rupees ninety thousand only) and odd. It was submitted on behalf of appellant that he is prepared to reinvest the fixed term deposit for another term so that the money is available for the minor boy in whose name the deposit has been made after he attains majority. The respondent expressed her desire to keep the 4 minor boy with her. She claims that she is capable of taking care of the minor boy as well as his education. The boy still appears to be of tender age and is clearly quite attached to his mother. The mother is in good health and appeared quite confident and capable of taking care of the minor boy. Considering all the facts and circumstances and largely the welfare of a boy aged about 13 years who wants to continue to live with his mother, we find no good reason to change the custody of the boy from mother to his grand- father. In our view, an order to that effect may prove quite traumatic for the boy. The grand-father has several other sons besides the deceased father of the minor boy and the court cannot be assured as to what kind of treatment would be with the boy if his custody is given to his grand father who appears quite old. In the facts and circumstances of the case, we find no merit in this appeal. It is accordingly dismissed. We make it clear that as grand-father the appellant shall be entitled to right of visitation and can meet his minor grand-son at any convenient time during day 5 hours. The money deposited in the name of the minor, which is part of compensation received on account of death of his father, shall be kept in fixed terms deposit in the Bank of India in A/C No. 6508 for such further term till the minor becomes major and is entitled to withdraw the same. Naresh ( Shiva Kirti Singh, J.) ( Shivaji Pandey,J)