JUDGMENT : Rongon Mukhopadhyay, J. 1. Heard Mr. Vishal Kumar Tiwary, learned counsel for the appellant and Mr. Pran Pranay, learned counsel appearing for the respondent. 2. This appeal is directed against the judgement and decree dated 06.12.2022 (decree signed on 20.12.2022) passed in Original Suit No. 273/2019 by Sri Dhananjay Kumar, learned Additional Principal Judge, Additional Family Court, Deoghar whereby and whereunder, the suit preferred by the respondent herein under Section 7 and 12 of the Guardians and Wards Act, 1890 has been allowed and the appellant has been directed to hand over the custody of the minor Aarav Shandilya to the respondent within a period of 30 days of passing of the order. 3. For the sake of convenience, both the parties are referred to in this judgment as per their status before the learned trial court. 4. The petitioner (respondent herein) had filed a suit under Section 7 and 12 of the Guardians and Wards Act in which it has been stated that out of the wedlock of the petitioner with Purnima Jha, two children were born; a daughter named Kavya Shandilya aged 7 years and a son named Aarav Shandilya aged 4 months. The birth of Aarav had taken place at Deoghar under the supervision of Dr. Sadhana Patralekh. The wife of the petitioner had died due to complications at childbirth. After the completion of the Shradh ceremony of the wife of the petitioner, the respondent and his other relatives had forcibly taken away the minor child of the petitioner and presently he is in custody of the respondent at Deoghar. The ordinary residence of the minor son of the petitioner is at Deoghar. The petitioner is in service having a handsome salary and is a well-educated person having a sound family background. The petitioner is keeping his minor daughter with him and is properly nourishing her with the assistance of his parents and siblings. The petitioner has not solemnised another marriage and does not intend to do so in future. The betterment of the child will always be under the guardianship of the petitioner and the respondents are not competent to maintain the child having various liabilities and the respondent himself has a serious heart problem. The petitioner has not solemnised another marriage and does not intend to do so in future. The betterment of the child will always be under the guardianship of the petitioner and the respondents are not competent to maintain the child having various liabilities and the respondent himself has a serious heart problem. It has been stated that on several occasions, the respondent was requested by the petitioner and his other relatives to hand over the custody of the child to them, but the respondent had refused without any valid reason. 5. On being noticed, the respondent had appeared and filed his written statement in which the allegations levelled by the petitioner has been denied. It has been stated that the death of the wife of the petitioner was on account of the negligence of the petitioner as he did not follow the advice of the doctor. The actual fact is that the mother of the minor child died within six days of his birth and since then the child is with the respondent who is providing proper nourishment and is also taking care of the child. Apart from the respondent, the minor is also looked after by his grandmother and aunt and all facilities are being provided to him. The respondent has come to know from reliable sources that the petitioner has kept his seven-year-old daughter Kavya Shandilya at the house of his elder sister. The parents of the petitioner are aged persons and both require attention and it is not possible for them to look after the welfare of the child and the petitioner also is busy working in a factory of Jindal company. In such surroundings, it is not possible to look after the welfare of the child. None of the relatives mentioned by the petitioner stay in the same city and they are also not in a position to take care of the child. The respondent has come to know that the petitioner has an illicit affair with another woman and is also a drunkard and such atmosphere will not be conducive for the growth and welfare of the child. The respondent has recently retired from the post of Co-ordinator of Sarva Siksha Abhiyan and is also the Pradhan of the village having sufficient landed property and he also has a good house. The respondent has recently retired from the post of Co-ordinator of Sarva Siksha Abhiyan and is also the Pradhan of the village having sufficient landed property and he also has a good house. The grandmother of the child and the two maternal uncles who are engineers and are unmarried also shower love and affection to the child. 6. Based on the pleadings of the parties, the following issues have been framed for adjudication: 1. Whether the suit as framed is maintainable in its present form? 2. Whether the petitioner has a valid cause of action? 3. Whether the custody of the person of minor child, namely, Aarav Shandilya has forcibly been taken away by the respondent from the petitioner? 4. Whether the welfare of the minor child lies with the petitioner or with the respondent? 5. Whether the petitioner is entitled for custody of minor child, namely, Aarav Shandilya? 6. Whether the petitioner is entitled to be declared as guardian of the minor child Aarav Shandilya? 7. Any other relief/reliefs? 7. The petitioner has examined four witnesses in support of his case: P.W.1 Dr. Ranjit Kumar Jha is the brother-in-law of the petitioner who has stated that after the birth of a son, the wife of the petitioner died. After the shradh ceremony of the wife of the petitioner was completed, the in-laws of the petitioner had forcibly taken away the minor son with them. The petitioner has a good job, having a handsome salary and he also has a good family background. The petitioner is taking care of his daughter and neither he has solemnized another marriage, nor he intends to do so. The petitioner is financially sound and his parents also assist him in fulfilling the duties and responsibilities towards the family. He has stated that the petitioner does not have any liability and can take good care of his son. The respondent, on the other hand, has unmarried sons and daughter apart from the respondent having a heart ailment and all these would prevent taking proper care of the child. The petitioner had requested the respondent on several occasions to hand over the minor child to him but the same did not have the desired effect. The respondent even did not heed the advice of the elders of the society. He has stated that at the present moment the child is staying with the respondent. The petitioner had requested the respondent on several occasions to hand over the minor child to him but the same did not have the desired effect. The respondent even did not heed the advice of the elders of the society. He has stated that at the present moment the child is staying with the respondent. In cross-examination, he has deposed that the parents of the petitioner are alive; the father of the petitioner is aged 75 years, while the mother of the petitioner is aged 57 years. He has deposed that Kavya Shandilya is staying at Kolkata with his father and grandparents for the last one year. The petitioner stays at Kolkata where he works as an officer in Jindal plant. The treatment of the wife of the petitioner was done with the cooperation of both the sides. The minor is being looked after by his maternal grandparents since 17.04.2019. The petitioner has not filed any case except the present one. P.W.2 Nand Kishor Jha has reiterated what has been stated by P.W.1 in his sworn statement. In cross-examination, he has deposed that he is the brother-in-law of the elder brother of the petitioner. The age of the father of the petitioner is 74 years, while his mother is aged 66 years. The petitioner gets a salary of Rs 40,000/- per month. P.W.3 Abhishek Bharti is a friend of the petitioner who has stated similar to that of P.W.1. In cross-examination, he has deposed that the petitioner stays with his parents and the daughter also stays with him. The petitioner had gone to his in-laws’ place about a year back and he had also gone with him. The petitioner is employed as a Quality Officer in Jindal India Ltd. P.W.4 Anand Shankar is the petitioner who has stated about solemnisation of his marriage with Purnima Jha and the birth of a daughter and son. His wife died after the birth of his son. After the death of his wife, the petitioner had performed her last rites at Godda. After completion of the shradh ceremony, his in-laws had forcibly taken away his son. He is employed and has a good family background and he is taking care of his daughter. He has not remarried and he does not have any intention of doing so. His parents help in carrying out his duties and responsibilities. After completion of the shradh ceremony, his in-laws had forcibly taken away his son. He is employed and has a good family background and he is taking care of his daughter. He has not remarried and he does not have any intention of doing so. His parents help in carrying out his duties and responsibilities. He has stated that he is more capable than the respondent to take care of his minor son. The respondent has a heart ailment and has the responsibility of unmarried sons and daughter and is not in a position to take proper care of his son. His family members had on several occasions requested the respondent to hand over the custody of the child but of no avail. At the present moment, his minor son is staying with the respondent. In cross-examination, he has deposed that his son is staying with the respondent since 15 days of his birth. He had, on several occasions, gone to meet Aarav Shandilya but he was not allowed to meet his son. He is working in Kolkata for the last 4 years in Jindal Steel as a Quality Officer. He is staying with his parents and his father is aged 70 years, while his mother is aged 68 years. His daughter Kavya Shandilya stays with him and she studies in Class-IV. The school is in Jamshedpur. One of his sisters stay at Jamshedpur while the others stay at Deoghar. His daughter is staying at Kolkata and is doing online classes. His daughter used to stay at Jamshedpur with his sister. The respondent and his family members do not take proper care of his son. His father-in-law was not a government servant and was employed in Sarva Siksha Abhiyan. After his son was taken away by his in-laws, he had seen his son at the place of the respondent from far off. 8. The respondent has examined six witnesses on his behalf: O.P.W.1 Arnav Bharadwaj is the brother-in-law of the petitioner who has stated that the mother of Aarav Shandilya died within 5 days of his birth. Since there was no one in the family of the petitioner to look after the infant, it was the petitioner who had left the child in the care of his parents. From that day onwards, the child is being looked after by the respondent, his mother and his unmarried sisters. Since there was no one in the family of the petitioner to look after the infant, it was the petitioner who had left the child in the care of his parents. From that day onwards, the child is being looked after by the respondent, his mother and his unmarried sisters. The petitioner stays alone at Kolkata where he has his job. The parents of the petitioner are old and most of the time they stay at Jamshedpur in the matrimonial house of their daughter Manisha Jha. The second sister and the brother of the petitioner stay outside. None of the relatives stay with the petitioner. The petitioner also does not look after the welfare of his daughter Kavya Shandilya. The petitioner had left Kavya Shandilya with his sister Manisha Jha at Jamshedpur. During the last 2 years 9 months, the petitioner had not even come to meet his son and he had never extended any financial help in looking after his son. His father, he and his brother are financially capable to take care of the child. In cross examination, he has deposed that he works in Tech Mahindra. He and his younger brother are unmarried. His sister Priyanka is also unmarried and she looks after the child along with his mother. The petitioner had once come to his house to meet his son and his family members also used to come. He has not met Kavya Shandilya. O.P.W.2 Priyanka Kumari is the sister-in-law of the petitioner who has reiterated what has been stated by O.P.W.1 in his sworn statement. In cross examination, she has deposed that she imparts music lessons in her house. Before her death, her sister used to stay at Kolkata with the petitioner. Her brothers work outside but at present, they are working online. The minor child is looked after by herself and her mother. The petitioner had never come to her house to meet his son. O.P.W.3 Pranav Bharadwaj has stated similar to that of O.P.W.1 and O.P.W.2 in his sworn statement. In cross-examination, he has deposed that he works in Pune, but at present he is working from home. The petitioner is the natural guardian of Aarav Shandilya. He does not know as to whether the daughter of the petitioner is studying or not. The petitioner has not solemnised another marriage. In cross-examination, he has deposed that he works in Pune, but at present he is working from home. The petitioner is the natural guardian of Aarav Shandilya. He does not know as to whether the daughter of the petitioner is studying or not. The petitioner has not solemnised another marriage. O.P.W.4 Mahamaya Devi is the aunt of the deceased Purnima Jha, who has also reiterated the statements made by the other witnesses. In cross-examination, she has deposed that after the marriage, she stays at Godda as well as Deoghar and when she is at Deoghar, she frequents the house of her brother-in-law. She does not have much knowledge of the in-laws of the petitioner. The sons of his brother-in-law are working and due to lockdown, they are in the house. The elder son of her brother-in-law works in Gurgaon while the second son works in Pune. O.P.W.5 Ashutosh Jha is a friend of O.P.W.3 who has stated similar to that of the other witnesses. In cross-examination, he has deposed that he had gone to the house of the petitioner at Kolkata on the insistence of his friend. O.P.W.6 Arun Charan Dwary is the respondent and the maternal grandfather of Aarav Shandilya who has stated that the child is taken care of by his wife and other family members. The mother of Aarav Shandilya had died within six days of his birth and the petitioner was not in a position to look after the infant and he had deliberately left the infant in their custody and since then he and his family members are looking after Aarav Shandilya. The parents of the petitioner are old and they are not in a position to look after the child. The petitioner stays alone at Kolkata where he works. The petitioner is not even able to look after his daughter Kavya Shandilya who stays with the elder sister of the petitioner at Jamshedpur. The mother of Aarav Shandilya had died due to the negligence on the part of the petitioner. The petitioner is a drunkard and he had come to know that the petitioner has illicit relationship with another woman. In cross-examination, he has deposed that he does not know where Kavya Shandilya studies. In the shradh of Purnima Jha neither he nor his family members had participated. The parents of the petitioner do not stay with the petitioner at Kolkata. 9 . In cross-examination, he has deposed that he does not know where Kavya Shandilya studies. In the shradh of Purnima Jha neither he nor his family members had participated. The parents of the petitioner do not stay with the petitioner at Kolkata. 9 . It has been submitted by Mr. Vishal Kumar Tiwary, learned counsel for the appellant (respondent in the suit) that the learned trial court has not taken into consideration the factors which guide the custody of the child. The welfare of the child is of paramount consideration and his future can be safeguarded only if he is allowed to stay with the appellant. The appellant has an equal financial strength as that of the respondent and it will not be an impediment for the appellant to take better care of Aarav Shandilya. Admittedly, the child is in the custody of the appellant from the time of his birth and, therefore, the welfare of the child is secured in the hands of the appellant. He has submitted that there is no one in the family of the respondent herein to look after the child as his parents frequently stays at their daughter's place at Jamshedpur and are old and infirm not capable to take care of the child. There is no dearth of good educational institutions at Deoghar and the child will be imparted proper education. Mr. Tiwary has submitted that there are several family members of the appellant to look after the child which is in contrast to the situation existing at the house of the respondent. 10. Mr. Pran Pranay, learned counsel appearing for the respondent (petitioner in the suit) has submitted that the learned trial court has rightly taken into consideration the fact that the welfare of the child cannot be secured if he is kept separate from his sister. The respondent is capable both financially and otherwise to take care of the minor child. None in the family of the appellant are in a position to do so as all are working and stays outside. 11. We have heard the learned counsel for the respective sides and have also perused the trial court records. 12. During the pendency of this appeal, an attempt was made at a compromise but since the same failed we have heard the matter on merits. 13. 11. We have heard the learned counsel for the respective sides and have also perused the trial court records. 12. During the pendency of this appeal, an attempt was made at a compromise but since the same failed we have heard the matter on merits. 13. The respondent herein has claimed custody of the minor child Aarav Shandilya on the ground that he is the father and natural guardian of the child and is sufficiently capable to look after the welfare of the child. The other feature much harped upon by the respondent is of his daughter Kavya Shandilya staying with him and her presence would also help in the growth and development of the minor child. The appellant, on the other hand, has based his claim on the fact that he and his family members are taking care of the child continuously since his birth as the daughter of the appellant had expired after 6 days of childbirth due to complications. The appellant has also claimed that his wife, sons and daughter look after the child which is an added advantage as the respondent stays alone and whose parents frequently stay at their daughter's place and are not physically capable to look after the welfare of the child. 14. What transpires from the evidence of the witnesses is that after the death of Purnima Jha, the infant Aarav Shandilya was in the custody of the appellant and continues to remain in his custody. The evidence of the witnesses of the appellant reveals that the child is being looked after by the wife of the appellant, his unmarried daughter as well as his two sons. Both the sons of the appellant work outside; one in Gurgaon and the other in Pune and their working in the house through online mode was on account of the lockdown. Once the two sons of the appellant start working in physical mode, which must have started by now, the only persons left to look after the minor child would be the unmarried daughter of the appellant who is a music teacher and the wife of the appellant. The appellant was working in Sarva Siksha Yojana and has since retired. The respondent, on the other hand, has his parents at home who extend support in looking after his daughter Kavya Shandilya. The appellant was working in Sarva Siksha Yojana and has since retired. The respondent, on the other hand, has his parents at home who extend support in looking after his daughter Kavya Shandilya. As per the respondent (P.W.4), his daughter used to stay at Jamshedpur with his sister but now she is staying at Kolkata. It is no doubt true that the appellant and his family members had taken care of the minor child Aarav Shandilya but that was under compelling circumstances and allowing the appellant to be the guardian of the child would amount to depriving the child of love and affection of his sister and staying separate from his sister and that too at an age when the child is growing up will not be conducive to the growth and development of the child. The respondent is financially sound and is also bringing up his daughter and has expressed his disinclination to marry again and all these factors would enhance the claim of the respondent for custody of the minor child Aarav Shandilya. 15. Mr. Vishal Kumar Tiwary, learned counsel for the appellant has referred to the case of Athar Hussain v. Syed Siraj Ahmed & Ors. reported in (2010) 2 SCC 654 , wherein it has been held as follows: “ 31. We are mindful of the fact that, as far as the matter of guardianship is concerned, the prima facie case lies in favour of the father as under Section 19 of the Guardians and Wards Act, unless the father is not fit to be a guardian, the court has no jurisdiction to appoint another guardian. It is also true that the respondents, despite the voluminous allegations levelled against the appellant have not been able to prove that he is not fit to take care of the minor children, nor has the Family Court or the High Court found him so. However, the question of custody is different from the question of guardianship. Father can continue to be the natural guardian of the children; however, the considerations pertaining to the welfare of the child may indicate lawful custody with another friend or relative as serving his/her interest better. 34. Thus, the question of guardianship can be independent of and distinct from that of custody in the facts and circumstances of each case. 36. The appellant placed reliance on R.V. Srinath Prasad v. Nandamuri Jayakrishna. 34. Thus, the question of guardianship can be independent of and distinct from that of custody in the facts and circumstances of each case. 36. The appellant placed reliance on R.V. Srinath Prasad v. Nandamuri Jayakrishna. This Court had observed in this decision that custody orders by their nature can never be final; however, before a change is made it must be proved to be in the paramount interest of the children. In that decision, while granting interim custody to the father as against the maternal grandparents, this Court held: (SCC pp. 76-77, para 10) “10. … The Division Bench appears to have lost sight of the factual position that at the time of death of their mother the children were left in custody of their paternal grandparents with whom their father is staying and the attempt of Respondent 1 was to alter that position before the application filed by them is considered by the Family Court. For this purpose, it was very relevant to consider whether leaving the minor children in custody of their father till the Family Court decides the matter would be so detrimental to the interest of the minors that their custody should be changed forthwith. The observations that the father is facing a criminal case, that he mostly resides in USA and that it is alleged that he is having an affair with another lady are, in our view, not sufficient to come to the conclusion that custody of the minors should be changed immediately.” (emphasis supplied) What is important for us to note from these observations is that the court shall determine whether, in proceedings relating to interim custody, there are sufficient and compelling reasons to persuade the court to change the custody of the minor children with immediate effect. 37. Stability and consistency in the affairs and routines of children is also an important consideration as was held by this Court in another decision cited by the learned counsel for the appellant in Mausami Moitra Ganguli v. Jayant Ganguli. This Court held: (SCC pp. 679-80, para 24). “24. 37. Stability and consistency in the affairs and routines of children is also an important consideration as was held by this Court in another decision cited by the learned counsel for the appellant in Mausami Moitra Ganguli v. Jayant Ganguli. This Court held: (SCC pp. 679-80, para 24). “24. … We are convinced that the dislocation of Satyajeet, at this stage, from Allahabad, where he has grown up in sufficiently good surroundings, would not only impede his schooling, it may also cause emotional strain and depression to him.” After taking note of the marked reluctance on the part of the boy to live with his mother, the Court further observed: (Mausami Moitra case, SCC p. 680, para 26) “26. Under these circumstances and bearing in mind the paramount consideration of the welfare of the child, we are convinced that the child’s interest and welfare will be best served if he continues to be in the custody of the father. In our opinion, for the present, it is not desirable to disturb the custody of Master Satyajeet and, therefore, the order of the High Court giving his exclusive custody to the father with visitation rights to the mother deserves to be maintained.” (emphasis supplied)” 16 . In the case of Anjali Kapoor (Smt.) v. Rajiv Baijal reported in (2009) 7 SCC 322 , it has been held as follows: “ 18. At this stage, it may be useful to refer to the decision of the Madras High Court, to which reference is made by the High Court in the case of Muthuswami Moopanar wherein the Court has observed, that, if a minor has for many years from a tender age lived with grandparents or near relatives and has been well cared for and during that time the minor’s father has shown a lack of interest in the minor, these are circumstances of very great importance, having bearing upon the question of the interest and welfare of the minor and on the bona fides of the petition by the father for their custody. In our view, the observations made by the Madras High Court cannot be taken exception to by us. In fact, those observations are tailor-made to the facts pleaded by the appellant in this case. We respectfully agree with the view expressed by the learned Judges in the aforesaid decision. 19. In our view, the observations made by the Madras High Court cannot be taken exception to by us. In fact, those observations are tailor-made to the facts pleaded by the appellant in this case. We respectfully agree with the view expressed by the learned Judges in the aforesaid decision. 19. In McGrath (infants), Re it was observed that: (Ch p. 148) “… The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well- being. Nor can the ties of affection be disregarded.” 26. Ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the appellant grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custody of the child.” 17. Reference has also been made to the case of Ashish Ranjan v. Anupma Tandon & Anr. reported in (2010) 14 SCC 274 , wherein it has been held as follows: “ 18. It is settled legal proposition that while determining the question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are concerned. While considering the welfare of the child, the “moral and ethical welfare of the child must also weigh with the court as well as his physical well-being”. While considering the welfare of the child, the “moral and ethical welfare of the child must also weigh with the court as well as his physical well-being”. The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled by the court with care and caution, with love, affection and sentiments applying human touch to the problem. Though, the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases. (Vide Gaurav Nagpal v. Sumedha Nagpal.) 19. The statutory provisions dealing with the custody of the child under any personal law cannot and must not supersede the paramount consideration as to what is conducive to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. (Vide Elizabeth Dinshaw v. Arvand M. Dinshaw, Chandrakala Menon v. Vipin Menon, Nil Ratan Kundu v. Abhijit Kundu, Shilpa Aggarwal v. Aviral Mittal and Athar Hussain v. Syed Siraj Ahmed.).” 18. As we have dealt above, the paramount consideration is the welfare of the minor child and in the circumstances in which the minor child has been brought up being unaware about the love and affection a sister dotes on her younger brother will not be conducive for the growth and development of the child. Moreover, the respondent herein is capable in all means to look after his minor son as he is also looking after his minor daughter and uniting the minor son Aarav Shandilya with his sister Kavya Shandilya who have never stayed together since the birth of Aarav Shandilya would go a long way in the growth and development of the minor child. The learned trial court has appropriately considered the dominant features of this case while declaring the respondent as the guardian of his minor son Aarav Shandilya and is entitled for his custody and having found no reason to conclude otherwise, this appeal is dismissed. 19. Pending I.A.s, if any, stands closed.