SHYAM SUNDER MISHRA Vs. JAGDISH PANDEY

JUDGEMENT

(1.) THIS appeal under Section 47 of the Guardian and Wards Act, 1890 (for short the Act of 1890) is directed against the order dated 28.7.2001 passed by First Additional District Judge, Katni; whereby, an application preferred by the appellants under Section 10 read with Section 12 of the Act of 1890 for custody of Siddharth has been rejected.

(2.) APPELLANTS are paternal grandfather and father of Siddharth who lives with respondent, the maternal grandfather. He is borne out of wedlock of appellant No. 2 and Sunita. Sunita died on 26.1.2004 under suspicious circumstances; wherefor appellant No. 2 was proceeded against for an offence under Sections 304 B and 498A, Indian Penal Code vide S.T. No. 66/2004 and has been convicted for the said offence. An appeal thereagainst is pending before the High Court. That, during pendency of criminal case against the appellant No. 2, respondent tookaway the child, his grandson, along with him who was 3 1/2 years of age at that time.

(3.) THE application was opposed by the respondent. The parties led their respective evidence; whereafter the trial court on the basis of evidence on record and taking into consideration the fact that the appellant No. 2 though father, since is convicted for an offence under Sections 304 B and 498 A, Indian Penal Code and that the child is being properly kept by maternal grandfather who is looking after his well being and after recording a finding that appellant No. 2 father of Siddharth has performed a second marriage, rejected the application. Aggrieved the appellants have filed this appeal.