1. In this appeal filed by the grand parents under Section 47 of the Guardians and Wards Act, 1890 (shortly referred as the Act), the question before this Court is whether the custody of child Narendra Kumar, now aged 11 years, is to be allowed to remain with the appellants by appointing them as his guardians or directing the appellants to return the custody of the minor to respondent Smt. Suchhi Bai who is his natural guardian mother.

2, The dispute about guardianship of minor arose between the parties in the background of following facts and events :

The father of the child was Constable in Police force posted at Dantewada in District Bastar in the State of M.P. On 4-6-92 in an encounter with Naxaliles he was killed in a bomb explosion. The child Narendra was born on 27-10-87. Since his birth he lived with mother and the grand parents in a house jointly by them in village Parsada about 50 kms. for Mahasamund in Raipur District. As are salt of killing of the father of the child in police encounter with Naxalites, the State Government granted an ex-gratia payment of a sum of Rs. 1,50,000/- which has been kept in the joint accounts in the Bank in the name of the minor, grand father and mother Smt. Suchhibai. From the pleadings and evidence on record, it appears that serious disputes and quarrels arose between the grand father and the mother of the child on the question of operating the joint bank account. The relation between them got so much strained that the relatives on the maternal side of the respondent mother intervened. They came and approached appellant grand father Keshav Ram Thakur at his village Parsada. There were police reports made against them for having terrorise and assaulted the grandfather and members of his family. It is because of the above dispute between the members of the family on the two sides of the mother that on 4-6-92 the mother left the matrimonial home at Parsada and came to her father at village Pirda which is about 40 kms.

from Mahasamund. According to the appellants who are grand parents, the mother was only interested in exclusively getting the amount de posited in the Bank, she ran away from the house leaving child Narendra to the care of grand parents.

3. According to the version of respondent mother prior to and after death of her husband she was continuously subjected to cruel treatment by her in-laws. They objected to her utilising the amount paid by the State Government for her use and for her child. The allegation by the mother against the grand parents is that they forcibly took custody of the child to keep their control over the money in deposit in joint names of the parties and drove away the mother from their house.

4. According to the mother she has been making drastic efforts right from the date she was driven out of the house to regain custody of her child. As a first legal step in that direction she instituted on 3-10-94 proceedings under Section 96, Cr.P.C. in the Court of Sub-Divisional Magistrate, Mahasamund for obtaining a search warrant against the appellants for production of the child and grant of his custody to her. It is submitted on behalf of the mother that it is only to checkmate the above mentioned criminal proceedings, that the grand father approached the Court of Civil Judge, Class I, Mahasamund under the Act on 24-10-94 seeking his appointment as guardian of the minor and for permission to retain his custody.

5. The learned Trial Judge by order made on 15-7-96 held that the natural guardian mother is the most suitable person to be entrusted with the custody of the child and, therefore, it dismissed the application for guardianship made by the grand father.

6. In this appeal on 24-4-98, on the orders of this Court, the appellants the grand parents of the minor produced the minor Narendra in Court.

The respondent mother Suchhibai was also present.

7. I talked to the grand parents, mother and the child in the Court room in the presence of counsel and confidentially also in the chambers. It appeared to this Court that because of the separation of the child from the mother for the past about four years, the child was unwilling to go back to the mother. In order, therefore, that he should develop affinity with the mother and be able to recognise her as such, this Court on 24-4-98 made the following order :

"The Court ascertained their wishes and also talked to the child in the Chambers. The parties present agree that the mother can be allowed frequently to meet the child at a common place of acquaintance of the parties at Mahasamund. The name and place of that common acquaintance is Arjun, Retired Majkuri, Imli Bhata, Mahasamund. It is agreed that the appellants shall make available the child for meeting with the mother at Mahasamund on every alternate Sunday in a month so that he starts recognising and develops more affinity and love, with the mother.

The Court feels that it is necessary that the child at this age should have love and affection both of the grand parents and the mother and should have equal access to both the parties. If the mother is allowed to meet the child to develop affinity with him she should be given freedom to take him for outing. The parties agree to report to this Court as to what happens in this trial period".

This Court purposely granted the above trial period to the parties so that the person best suited be given custody of the child.

8. After the trial period the respondent mother has filed an affidavit stating that the opportunities that she got for meeting the child had resulted in some inclination of the child towards her but the grand parents on some occasion tried to dissuade the child from getting closer to the mother. She alleged that because of this non-cooperation the child could not develop the expected amount of affinity with the mother. The mother, however, in her affidavit states that she is sure and hopeful that if the custody of the child is given to her, within a very short time the child would recognise her and feel happy and comfortable with her. The grand father has filed a counter-affidavit stating that the child has attachment only with his grand parents.

9. The grand parents who appeared before me twice state that right from childhood the boy is living with them and after the death of his father and running away of his mother, they were looking after him. He now does not recognise his mother and treats the grand parents to be his father and mother. In order to give him proper atmosphere and better schooling they have shifted to Raipur and have got him admitted in a school there. It is submitted that they have no greed for the money which is in joint accounts of the parties and they would spend the money only for the maintenance and education of the boy.

10. After the trial period was over the case was listed for hearing on 20th and 21st of July, 1998. On both days the boy along with the grand parents and mother appeared in this Court and also talked to me in Chambers. This Court tried to explore possibilities of joint living of both the parties at one place either at Raipur or Mahasamund so that the child continues to get affection of both the parties and in this tender age does not face any psychological strain. Despite best efforts and persuasion by this Court and the learned counsel appearing for both the parties, they have refused to live jointly in one house. The grand parents expressed their willingness to allow the mother to live with the child in their house either at Raipur, Mahasamund or at their village Parsada. But the mother refused to go back to the matrimonial home saying that she had a very bitter experience during her married life and after death of her husband. She expressed complete distrust in grand parents and showed eagerness to get custody of the child whom she promises to look after and educate at her village Pirda where she lives with her father. She says that there are all facilities of education upto high school level, in village Pirda.

11. As is laid down in Section 7 and 17 of the Act and as settled by several decisions of the Courts, in selection of a guardian of a minor the best interest of the child is the paramount consideration, to which even the rights of parents must sometimes yield. The Court has to consider fitness of the natural guardian or other persons claiming to be appointed as guardian at the time of hearing of the petition or appeal. That is not to say that the lawful rights of the parties for guardianship of minor are to be totally disregarded. Under Section 6 of the Hindu Minority and Guardianship Act, in the absence of father, mother is the natural guardian of her son. If she having a legal right to take custody of the minor as natural guardian, is found to be fit and proper person, she is not to be denied such a right unless it is found by the Court that it would be more advantageous to entrust the custody to some other aspirant for guardianship. In dealing with matters concerning a minor the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and protect the minor's interest.

12. Section 17(3) of the Act, amongst others requires the Court to consider the inclination of the minor in the matter, if the minor is old enough to form an intelligent preference. In the instant case the boy is 11 years old and it is said that he is admitted to 5th class. I talked to him in the Court in presence of parties as also separately in chambers. Obviously because he had been separate from the mother from August, 1994 and during pendency of these proceedings, he has shown his preference for the grand parents. I, however, feel inclined to agree with the mother and the counsel appearing for her that such disinclination of the boy is only a temporary phase and it is because of his long separation from the mother. I tried to arrange a exclusive meeting of the boy and the mother in my chambers. The boy got terrified with the idea that he might be handed over to the mother and the mother choked with emotion, only wept due to her helplessness. The grand parents then were called in the chambers and to some extent the boy felt relieved.

13. Looking to the age of the boy and the circumstances in which he was placed and is presently finds himself, it is not possible for him to form any intelligent preference which can be taken into consideration by this Court. Obviously, he could not develop intimacy and affinity with the mother because she had to leave him with the grand parents at the age of about 7 years. The natural bond of love between mother and her child is such that this Court has no doubt that within a very short time if the boy gets company of the mother they would develop intimacy and mutual love. I have also no doubt that the grand parents have bestowed all love and affection on the child after death of his father and they are not actuated by any greed for money. But there can be no substitute of mother's love and affection which a child needs utmost in the growing age.

This is the period in the life of a child when it is only mother under whose care and affection he would have proper emotional and psychological development. It cannot also be said that the mother is incapable of giving him proper education. She has been granted an ex-gratia payment which is in deposit with the Bank. She has also received terminal benefits of her husband. As her husband was killed in a police encounter with naxalites it is most likely that the Government will also extend all assistance towards maintenance of the widow and the child. The mother also says that she has full financial and moral support of her father and other members of the family with whom she lives in Pirda. She stated before me that she has not remarried only because she has a son to look after and depend upon in future.

14. In the considered opinion of this Court undoubtedly the best interest of the minor lies in living with the mother for his all round physical, moral, emotional and educational development. The grand parents are aged respectively 73 and 60 years. Whereas the mother is young at the age of below 30 years. The boy is only 11 years and would need love and affection for a fairly long duration. At this age it is better that he is entrusted to the mother to receive from her motherly love and care for a long period till he attains majority and even thereafter. The only hesitation with this Court is that the sudden change of environment of the child might create some mental strain and pyschological stress on his mind. For that purpose some trial period was given to the parties and the mother was allowed to have the company of the child. It cannot be said that the period of trial given has been completely fruitful and conducive to renewal of relationship of the mother and the child. It is, however, now clear to the child that he has a mother who is eager to look after him. The experience in the Court and Chamber, however, impressed this Court to provide some safeguards so that the impact on the mind of the child because of sudden change of environment is minimised. In making the following directions while disposing of this application, I am guided by directions, in somewhat comparable situations, given by the Supreme Court in the case of Poonam Datta v. Krishnlal Datta, AIR 1989 SC 401 and Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka., AIR 1982 SC 1276.

15. The appeal preferred by the grand parents for appointment of the grand father as guardian and for the custody of the child is dismissed and the order of the learned trial judge is maintained with the following directions :--

(1) The appellants are directed to hand over custody of the child Narendra to respondent mother in the Court of Civil Judge, Class I, Mahasamund on 17-8-98 at 12.00 noon. The presiding Judge at Mahasamund shall take care that the handing over of the custody as done in an informal atmosphere causing least tension and fear in the mind of the child. The presiding Officer may evolve such procedure for handing over custody as he finds suitable and for that purpose hold proceedings in the Court room or in his chambers. In the event of any disobedience or disregard to this order shown by any of the parties, the presiding Judge would be free to take such remedial actions for enforcement of the order as are permissible in law and in accordance with Section 25 read with Section 45 of the Guardians and Wards Act.

(2) The respondent mother is directed to keep the child with her at village Pirda where she is living presently with her father or at Mahasamund or at Raipur which ever place she finds convenient and congenial for the child. It is upto her to allow him to continue his education at Raipur where he is presently admitted in a school or she may get him admitted in any of the schools at village Pirda or at Mahasamund. The school authorities be approached with the copy of this order to admit the child as a special case by relaxing rules, if any, for that purpose.

(3) Since the child has been given custody to the mother after his long separation from her, she is directed to again produce the child in the Court of Civil Judge, Class I Mahasamund on 24-8-98 or such other date as may be fixed by that Court with advance notice and intimation to the parties. The presiding Officer of that Court shall ensure that the child is happy and is being looked after well by the mother. If he expresses desire he shall be permitted to meet the grand parents who may also attend the Court proceedings on the above date or on the date as fixed by the Court.

(4) The mother is directed to allow the grand parents to meet the child wherever he is kept by the mother. She would give access to the grand parents for the above purpose to meet the child as and when the grand parents approach her for the purpose with reasonable prior intimation. It is directed and hoped that none of the parties would create any situation as to cause any emotional disturbance to the child.

(5) The mother is directed to ensure that he is given proper education. The mother is directed to periodically produce the child in the Court of Civil Judge, Class I, Mahasamund and after 24-8-98 she would again produce the child before the Court at Mahasamund on 21st September, 1998 and on 23rd November, 1998 and if necessary as and when directed by that Court. If for any reason any of the dates above mentioned happen to be non-working days for the Courts, the necessary direction be carried out on the next available working days.

(6) It would be open to the parties to approach this Court for any change or modification of the above order and for consequent direction as are found necessary.

(7) A copy of this order be immediately communicated to the parties on their addresses mentioned in the cause title of this case and on their Raipur address if any on record. The contents of the order be also communicated forthwith to the competent Court at Mahasamund for directions to it to issue formal notices to the parties for the date fixed for delivering custody of the child to the mother.

(8) The competent Court after handing over the custody shall keep this Court informed by sending reports about the outcome of the proceedings and any further proceedings taken pursuant to this order.

(9) The original record of the case be forthwith sent back to the trial Court per messenger or by other quickest available mode so as to reach well in advance before the due date. In the circumstances, I make no order as to costs.