TEJINDER KAUR Vs. INDER PAL SINGH

JUDGEMENT

(1.) OM Prakash, J. This is a first appeal by the defendant-appellant against im pugned judgment and decree dated 10-5- passed by the Family Court, Kanpur Nagar appointing respondent- plaintiff as the guardian of Master Gagan Deep-Singh who was born from the union of the appel lant and respondent after their marraige having taken place on 3-6-1990 according to Sikh religion, which they belong to.

(2.) AN application was made by the respondent husband under Section 10, read with Section 25 of the Guardian and Wards Act; 1890 (briefly, the Act of 1890) for secur ing custody of his son-Master Gagan Deep Singh stating that Gagan Deep was born on 14-4-1991, that his wife (appellant) left his house without any reason and started living with her parents from 20-11-1991; that the appellant filed a habeas corpus petition seeking a direction against the respondent to present the minor son in the Court and for giving him into her custody; that by the order of the High Court, the child being below five years of age was given in the custody of the appellant; and that the cus tody of the child having completed the age of five years be given to him as he being the natural guardian has preferential right to his custody. The said application was al lowed by the court below observing in the impugned order that the financial position of the respondent was much better than that of the appellant and that the respondent being a natural guardian of the minor son was entitled to the custody of the child.

(3.) THERE is case law on the point that a father being a natural guardian of a minor child, has a preferential right to the cus tody of minor. Preferential right, in my view, does not mean an absolute right of the father to the custody of minor child. Before giving custody of minor who has completed age of five years to the father the court has to ensure that welfare of the child will be taken care of best by him. Simply because in this case, the respondent father possesses better financial resources than the appellant mother, that alone is not enough to ensure greater welfare of the minor in his hands.