YOGASH KUMAR GUPTA Vs. M K AGARWAL

JUDGEMENT

(1.) THIS appeal, preferred under Section 19 of Family Courts act, 1984, is directed against the judgment and order dated 16-9-2003, passed by Principal Judge, Family Court, Dehradun, in guardians and Wards cases No. 5 of 2002 and 8 of 2002, filed by the present appellant and respondent No. 1 respectively, whereby the respondent's petition for custody of his children is allowed and the petition of the maternal grand father of the children has been dismissed.

(2.) BRIEF facts of the case are that respondent M. K. Agarwal, got married to Neerja agarwal (since deceased) on 22-11-1991. Out of the wedlock, two children namely aniruddh (son) and Saumya (daughter) were born on 5-9-1992 and 5-4-1995 respectively. On 23-8-1998, Neerja Agarwal died. On the complaint of her parents, a crime no. 575 of 1998, was registered relating to offences punishable under Sections 498 A/ 304 B I. P. C. with police Station Kotwali, dehradun. It appears that M. K. Agarwal (respondent No. 1) stood trial and finally acquitted of the charge on 23-5-2001 by additional District and Sessions Judge, Vth fast Track Court, Dehradun. Meanwhile, the children lived with their maternal grand parents. Shri Yogesh Kumar Gupta (appellant)is maternal grand father of the children. Before acquittal of M. K. Agarwal of the charge framed against him in Sessions Trial no. 27 of 2000, Yogehs Kumar Gupta (present appellant) instituted a case before the District Judge, Dehradun, as Guardianship case No. 14 of 1998, for his appointment as guardian of the children. Also, the respondent filed a case for custody of the children. Both the cases were later transferred to the Court of Judge Family Court, dehradun, where the cases were renumbered as Guardian and Wards cases No. 5 of 2002 and 8 of 2002, which were disposed of vide common impugned order dated 16-9-2003.

(3.) WE have heard learned counsel for the parties and also enquired from the children as to their willingness, and also perused the lower Court record.