JUDGMENT Ajai Lamba, J.:-This First Appeal against Order is directed against order dated 5.2.2007, passed by the Guardian Judge, Ludhiana. 2. Respondent No.1-Gurdip Singh, father of Harpreet Singh, filed an application under Section 25 of the Guardians and Wards Act, 1890 (for short ‘the Act’) praying for custody of the minor; namely Harpreet Singh, his son. Harpreet Singh was born on 5.7.1996. At the point in time when the application was filed, the minor was in the custody of his maternal grand parents; namely Rulda Singh (appellant) and Karnail Kaur (respondent No.2). 3. The grounds taken by respondent No.1, in brief, were that he is the natural guardian and had the right to claim title of being a guardian and, therefore, was entitled to the custody of the minor. The maternal grand parents were aged persons. 4. The application was opposed by the appellant and respondent No.2 on the ground that Karamjit Kaur, mother of the minor, had been ill treated by respondent No.1 and his relatives. No proper medical aid was given to her during her life time and, therefore, she had to be removed to her paternal home along with the minor. She, however, could not be cured and after prolonged illness died on 15.4.2001. Appellant and respondent No.2 had been maintaining the minor who had been admitted to a good school. The appellant and respondent No.2 had no son and only two married daughters, therefore, the minor could be given proper care. 5. The trial court has allowed the application of respondent No.1 on the ground that there was no material to indicate that Karamjit Kaur had been harassed or maltreated. Respondent No.1 had not contracted second marriage after the death of Karamjit Kaur and was in sound financial condition to take care of the minor. The minor, when questioned by the court, appeared to have been tutored as he had narrated the incident when he was 2/3 years of age, which is not possible. Another factor that has been taken into account is that respondent No.1 is the natural guardian of the minor, being the father and would be a better person as compared to the maternal grand parents to look after and provide education to his minor son. 6. Another factor that has been taken into account is that respondent No.1 is the natural guardian of the minor, being the father and would be a better person as compared to the maternal grand parents to look after and provide education to his minor son. 6. Learned counsel for the appellant, while challenging the impugned order, has contended that the minor had remained in the custody of respondent No.1 only for one year. Option of the minor had been taken. The minor had clearly stated that he wanted to stay with his maternal grand parents i.e. the appellant and respondent No.2. In regard to the conduct of respondent No.1, it has been contended that respondent No.1 had never visited the minor after the death of Karamjit Kaur and no gifts had been given. It has been argued that the appellant is in good financial condition and the minor is studying in English medium school. The appellant has two surviving daughters who are married and no son. 7. Learned counsel for the appellant has further stressed on the issue that mother of the minor had been treated with cruelty and no proper medical aid had been given and, therefore, respondent No.1 was not entitled to the custody of the minor. 8. Learned counsel for the appellant has referred to Lekha v. P. Anil Kumar, 2007(1) RCR (Civil) 308, Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi, AIR 1992 Supreme Court 1447, Ram Nath Anand and another v. Ravi Raj Dudeja, 2006(2) Marriage Law Journal 325, Buta Ram v. Veeru Ram @ Beeru Ram, 2001(2) Marriage and Divorce Judicial Reports 468 and R.V. Srinath Prasad v. Nandamuri Jayakrishna, 2001(2) RCR (Civil) 709. 9. Learned counsel for respondent No.1, on the contrary has asserted the right of respondent No.1 as natural father of the minor. It has been pleaded that the conduct of respondent No.1 has been above board as he had no reason to doubt with regard to the welfare of the minor, while his wife was alive. Immediately after the demise of Karamjit Kaur, mother of the minor, the application had been filed. The conduct of respondent No.1 in not getting remarried in itself indicates that he would prove to be a good father. Immediately after the demise of Karamjit Kaur, mother of the minor, the application had been filed. The conduct of respondent No.1 in not getting remarried in itself indicates that he would prove to be a good father. It has been highlighted and asserted that the grand mother of the minor i.e. respondent No.2 is blind from one eye, which fact is admitted by the appellant in his cross-examination. It has been pointed out that the appellant and respondent No.2 remained ill and would not be in a position to take care of the minor. 10. Learned counsel for respondent No.1 has pointed out that an ideal atmosphere would be provided to the minor for his bringing up in so much as respondent No.1 is living in a joint family along with his mother i.e. paternal grand mother of the minor-Bhan Kaur, along with his brother­ Balbir Singh and his family. Balbir Singh has four children of variable ages, going to good schools/college. The minor would have healthy company, which is required at this age of the minor. 11. I have considered the arguments addressed by the learned counsel for the parties and have gone through the record. 12. During the course of proceedings, the court made an attempt to convince the appellant to provide to the minor love, affection and care of father (respondent No.1) and his family, as also the love and affection of the appellant and respondent No.2 i.e. the maternal grand parents of the minor. The effort, however, failed as the parties did not reconcile to the arrangement. 13. The main plank of the argument of the learned counsel for the appellant is that the mother of the minor had been treated with cruelty. I, however, find that no material has been placed on record to indicate maltreatment of Karamjit Kaur, wife of respondent No.1. Neither any complaint was filed during her life time nor even an application under Section 125, Code of Criminal Procedure, was filed during the period when she stayed with her parents. The circumstances indicate that initially Karamjit Kaur, while in her matrimonial home with respondent No.1 and her child, was ailing. She was taken to Arora Neuro Centre, Civil Lines, Ludhiana, where her condition became serious. Subsequently, she was taken to her parental home and she lived for some time with the appellant and respondent No.2. The circumstances indicate that initially Karamjit Kaur, while in her matrimonial home with respondent No.1 and her child, was ailing. She was taken to Arora Neuro Centre, Civil Lines, Ludhiana, where her condition became serious. Subsequently, she was taken to her parental home and she lived for some time with the appellant and respondent No.2. After prolonged illness, she died on 15.4.2001. I find no illegality in the finding recorded by the trial court to the effect that there being no material to indicate that Karamjit Kaur had been treated with cruelty, the circumstance cannot be weighed against respondent No.1 to deprive him of his right as a father to have the custody of the minor. 14. In so far as the option of the minor is concerned, I find that the trial court has drawn a conclusion that the minor was tutored. I have no reason to find fault with the finding. The trial court has held that the minor had narrated events when he was 2/3 years of age, which is most improbable. Be that as it may, the option of the child in itself would not be the only criteria to consider the welfare of the minor. Various factors are required to be seen, which I would discuss hereinafter. 15. Bhan Kaur, mother of respondent No.1, i.e. paternal grand mother of the minor, has appeared as PW-2, and stated in clear terms that she would maintain and look after the minor. To the contrary, from the record, I find that the appellant has been delaying the proceedings for considerable period on the pretext of bringing evidence. Finally, the evidence had to be closed by order of Court. On a revision petition having been carried to this court, one opportunity was given to the appellant to bring out his evidence and the appellant examined himself as his sole witness. Even respondent No.2 has not been examined. Only respondent No.2 could be the witness to give a statement in regard to her willingness and capability to take care of the minor. 16. I have taken notice of the cross-examination of Rulda Singh, appellant, who appeared as R W -1. The relevant portion for consideration of the issue at hand reads as under:­- “..:... It is correct that at the time of the cremation and Bhog ceremony the in laws of my daughter attended the same. 16. I have taken notice of the cross-examination of Rulda Singh, appellant, who appeared as R W -1. The relevant portion for consideration of the issue at hand reads as under:­- “..:... It is correct that at the time of the cremation and Bhog ceremony the in laws of my daughter attended the same. I have never complained to Panchayat of the in laws of my daughter regarding the maltreatment. After the death of my daughter I had not made any complaint any where regarding her death on account of any maltreatment. It is correct that my wife is under treatment on account of the death of my daughter. It is correct that she is blind from one eye. .......... It is correct that he is still unmarried. It is correct that the mother of my son in law is hale and hearty. She may be residing with the applicant……” 17. From the above, it transpires that respondent No.2 is not only blind from one eye but is also maintaining ill health. Respondent No.2 is the only female member in the family of the appellant. As against this, mother of respondent No.1-Bhan Kaur has appeared as a witness as PW-2 and, as per the admitted case of the appellant, is maintaining good health and is residing with respondent No.1. The witness has admitted that no complaint had been made to any authority during the life time of wife of respondent No.1 in regard to the allegations of maltreatment given by respondent No.1. 18. The minor, at this age, would require all the energy and attention including company of children. There is no doubt that there is no other child in the house of the appellant. As against these facts, respondent No.1 is living in a joint family along with PW -2 Bhan Kaur and his brother-Balbir Singh. 19. Balbir Singh, who was present at the time of arguments and proceedings before this court, has stated that he has two daughters, aged 21 years and 16 years, and two sons, aged 14 years and 11 years. While the eldest daughter has passed her B.A. Examination, the youngest son is studying in 7lh class. The certificates produced in court make it evident that the children of Balbir Singh are school/college going. While the eldest daughter has passed her B.A. Examination, the youngest son is studying in 7lh class. The certificates produced in court make it evident that the children of Balbir Singh are school/college going. Although these additional facts in regard to family of Balbir Singh staying with respondent No.1 have been brought to the notice of this Court at this stage, I however, find that Balbir Singh has been coming to pursue the matter along with respondent No.1. Balbir Singh has been questioned by me at some length in regard to the relevant considerations in the context of welfare of the minor. I am satisfied that Balbir Singh and his family are ready and willing to accommodate the minor in their family. In my considered opinion, the minor would have the company of four children, his cousins of variable ages, ranging between 11 years and 21 years, which would be very healthy for his upbringing and overall development. 20. A consideration of the provisions of Sections 19, 24 and 25 of the Act is required in the context of the present case. “19. Guardian not to be appointed by the court in certain cases. Nothing in this Chapter shall authorise the court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards or to appoint or declare a guardian of the person­- xx xx xx xx xx xx xx xx (b) * * * * * of a minor whose father is living and is not in the opinion of the court, unfit to be guardian of the person of the minor; or xx xx xx xx xx xx xx xx” Section 24 of the Act reads as under: “24. Duties of guardian of the person A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires." Section 25 of the Act (relevant portion) reads as under:­ “25. Title of guardian to custody of ward. Title of guardian to custody of ward. (1) If a ward leaves or is removed from the custody of a guardian of his person, the court, if it is of opinion that it will be for the welfare of the ward to return to the custody of the guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. xx xx xx xx xx xx xx xx (3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.” 21. I find that the financial status of respondent No.1 is comparable with that of the appellant. So far as the age and energy is concerned, respondent No.1 is certainly younger and better equipped in health and age to take care of the minor. The provisions of Sections 19 and 25 of the Act also indicate the right of respondent No.1 to be the guardian of the minor, being the father. Ordinarily, in case, the father is living and, in the opinion of the court, is fit to be a guardian, he is required to be appointed as a guardian. On a consideration of the entire record, I do not see any ground to record a finding that respondent No.1 is not fit to be a guardian of his son-Harpreet Singh. 22. I have also considered the circumstance that after the death of Karamjit Kaur, wife of respondent No.1, on 15.4.2001, the application under the Act was filed on 25.5.2001 itself i.e. just after 1 month and 10 days. The intention and willingness of respondent No.1 to be the guardian of his ward, under the circumstances, cannot be doubted. While the minor was very small in age, he was living with his mother and respondent No.1­ the father, had no reason to claim his custody. Immediately, after the demise of his wife, respondent No.1 had claimed the custody of the minor by approaching the court of law. I have also taken note of the fact that respondent No.1 has not remarried. 23. Immediately, after the demise of his wife, respondent No.1 had claimed the custody of the minor by approaching the court of law. I have also taken note of the fact that respondent No.1 has not remarried. 23. In Lekha’s case (supra), the Hon’ble Supreme Court of India was dealing with a case wherein custody was given to the mother as the child wanted to live with the mother who was also capable of looking after welfare and education of the child. It was a contest between the husband and wife. The two had lived together only for two months whereafter there was misunderstanding. The appellant in that case was compelled to file a petition for divorce on the grounds of cruelty. The main allegation of the respondent was that the appellant was having illegal intimacy with another person. 24. Clearly, the facts of that case have nothing in common with the facts of the present case. In the present case, the mother is not even alive. The child has been living with the maternal grand parents who are old and not in good health. The other relevant circumstances and conditions have been considered hereinabove which constrained me to form an opinion that the appellant and respondent no. 2 rather would be unfit to be guardians of the minor. 25. In Kirtikumar Maheshankar Joshi’s case (supra), the mother had died, however, the father was facing charges under Section 498-A IPC. Children were not willing to live with their father and narrated various episodes showing ill-treatment of the mother at the hands of the father. In these facts and circumstances, the Hon’ble Supreme Court of India held that since the children were happy with the maternal uncle, the interest and welfare of the children required their stay with the maternal uncle. The Hon’ble Supreme Court, however, has recognized the preferential right of custody to the father. 26. In the case in hand, although much has been stated about the maltreatment of the wife of respondent no.1, however, there is no evidence forthcoming in that regard. No judicial notice of the allegations, therefore, can be taken. So far as the welfare of the child is concerned, I have already recorded my findings that the respondent no. 1 is better placed to take care of the various requirements of minor-Harpreet Singh. 27. No judicial notice of the allegations, therefore, can be taken. So far as the welfare of the child is concerned, I have already recorded my findings that the respondent no. 1 is better placed to take care of the various requirements of minor-Harpreet Singh. 27. In Ram Nath Anand’s case (supra), it has been held that it is no doubt true that father is a natural guardian of the minor. It has, however, been noticed that the father had faced criminal charges under Section 304-B IPC. The attending circumstances, therefore, weighed with the Court to give the custody to the maternal grand parents. 28. In the case in hand, respondent no. 1 has never faced any charge in regard to harassment of the mother of the minor. So far as the willingness of the child is concerned, the Trial Court has considered the issue and has held that the child had been tutored. I have taken into account this aspect of the matter in earlier part of the judgment and I have no reason to differ with the findings recorded by the Trial Court. Be that as it may, considering the totality of facts and circumstances of the case, the option of the minor would not be the only consideration, in the peculiar facts and circumstances of this case. 29. In R.V. Srinath Prasad’s case (supra), it was held that where the children have been staying with a spouse, their custody attachment should not be disturbed only on the asking of the parties. The minor in that case had been staying with the father since the death of their mother and were studying in schools and enjoying the company of children of sister of their father. Under these circumstances, it was held that maternal grand parents are not entitled to claim custody of the children merely on the ground that some criminal proceedings have been going on against the father of the children and he had some attachment with some lady. 30. This case rather helps the case of respondent no. 1 in so much as the Hon’ble Supreme Court has considered it relevant that sister of the appellant had two children, and the ward would have company of the children of the sister. 30. This case rather helps the case of respondent no. 1 in so much as the Hon’ble Supreme Court has considered it relevant that sister of the appellant had two children, and the ward would have company of the children of the sister. In the case in hand, I have taken note of the fact that the four children of Balbir Singh i.e. brother of the appellant would be able to provide healthy company to Harpreet Singh, the child. The children of Balbir Singh, as noticed in earlier part of the judgment, are of varied age and, therefore, it shall be very healthy fm the upbringing of the child as against the circumstances in which Harpreet Singh has been living i.e. in the house of appellant no.1 and respondent no. 2 i.e. maternal grand parents. 31. Having considered the totality of facts and circumstances, I have no hesitation in holding that, for the welfare and future of the child, the conditions of living and environment in the house of respondent no.1, Gurdip Singh, would be best suited. Keeping in view the paramount consideration i.e. the welfare and interest of the minor, it would be appropriate to return the custody of the minor to the natural guardian, Gurdip Singh. Gurdip Singh is the natural guardian and in any case has preferential right. The findings recorded by the Court below need no interference as they are based in relevant material. The appeal is accordingly dismissed. I am constrained to observe that the proceedings have been considerably delayed. It would be in the interest of Harpreet Singh that his custody is transferred to Gurdip Singh, his father, at the earliest. In case the execution proceedings are filed, it is directed that the same would be concluded within 2 months of its filing. ———————————