JUDGMENT Mrs. Rekha Mittal, J.:- The present appeal lays challenge to order dated 30.03.2009, passed by the Civil Judge (Senior division), Sonepat, whereby the petition filed by Brij Bala widow of Rajesh Kumar (respondent herein), under Section 6 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as ‘the 1956 Act’) read Section 25 of the Guardian and Wards Act, 1890, for custody of minor son of the respondent, has been allowed. 2. Brij Bala, filed a petition for custody of her minor son by pleading that she was married to Rajesh Kumar son of Nand Lal, appellant, on 15.12.2000. The minor child, whose custody, is the bone of contention, was born out of the wedlock, on 06.05.2003. Unfortunately, Rajesh Kumar, father of the minor, passed away on 18.08.2005. The respondent has inter alia pleaded that she was subjected to maltreatment, torture and cruelty by her husband and in-laws on account of demand of dowry. After the death of Rajesh Kumar, she was given merciless beatings by the appellant and shunted out from the matrimonial home on 10.07.2006, but the child was illegally kept by him and his wife (Khazano Devi, since deceased). She lodged a criminal case under Sections 406, 498-A read with Section 120-B IPC against the appellant and others. The appellant is an uneducated and old aged person. He is unable to look after and guard the future of the minor. He has no source of income and always remain sick. She is an educated lady residing in Ambala City. She can look after the minor child. She is matriculate and working as a ladies tailor. She is also working in the house of neighbours and earning Rs.4,000/- per month. She can provide education and comforts of life to the minor child. Her parents are also ready to help her in maintaining and upbringing the child. She has no adverse interest against the minor. 3. In reply, the appellant controverted allegations in the petition and raised a plea that the respondent never bothered about the minor child and while leaving the matrimonial home in July, 2006 left behind the minor as she wanted to remarry. The respondent wants to grab 1/3rd share of the minor in house No. 340/26 belonging to the appellant. The attitude and behaviour of the respondent always remained hostile towards Rajesh Kumar. The respondent wants to grab 1/3rd share of the minor in house No. 340/26 belonging to the appellant. The attitude and behaviour of the respondent always remained hostile towards Rajesh Kumar. She has no love and affection for the minor child and has falsely got lodged a criminal case against the appellant and his family members. All other material averments of the petition were denied with a prayer for dismissal of the petition with costs. 4. The controversy between the parties led to framing of following issues by the trial Court:- 1. Whether the petitioner Brij Bala being mother of is entitled to the custody of minor, on the grounds mentioned in the petition? OPP 2. Whether the petition is not maintainable in the present form? OPR 3. Relief. 5. To establish her claim, Brij Bala, respondent appeared in the witness box as AW1 and examined Jagdish Chander (AW2) and Man Mohan (AW3) to support her cause. To rebut this evidence, Nand Lal, appellant, appeared in the witness box as RW1 and examined Satish Kumar (RW2). 6. Counsel for the appellant submits that the trial Court erred in allowing the petition as its findings are based on an incorrect appreciation of pleadings, evidence adduced and the settled position of law that welfare of the child is the paramount consideration while deciding such disputes. It is further argued that the respondent left the matrimonial home in July, 2006, leaving the minor to the mercy of his grand parents which disentitles her to claim his custody and guardianship. The respondent has got no means to provide for up keep, maintenance and well being of the minor. She is guilty of booking her in-laws in a false criminal case, under Section 406/498-A IPC, after the death of her husband which reflects upon her conduct. In support of his arguments, he refers to judgments of the Hon’ble Supreme Court in ‘Dr. Ashish Ranjan v. Dr. Anupama Tandon and another’, [2011(2) Law Herald (SC) 1493 : 2011(2) Marriage L.J. (SC) 108] : 2011 (1) All India Hindu Law Reporter-174, ‘Nil Ratan Kundu and another v. Abhijit Kundu’ 2008 AIR (SCW)5769 and ‘Yogesh Kumar Gupta v. M K Agarwal and another’ 2010(1) HLR 59 (Uttarkhand High Court). 7. Counsel for the respondent contends that as the respondent is the mother of the minor, she is the natural guardian as per provisions of the 1956 Act. 7. Counsel for the respondent contends that as the respondent is the mother of the minor, she is the natural guardian as per provisions of the 1956 Act. After the demise of Rajesh Kumar, she is the best person to look after the welfare, upkeep and maintenance of the child. The respondent has no adverse interest to the minor and the child is her only hope in future. She has no other obligation except to take care of the minor and she has been wrongly and illegally deprived of care and custody of the minor child by the appellant. It is further argued that welfare of the child is undoubtedly the paramount consideration which lies in his custody and guardianship with his mother. The respondent did not leave the minor with the appellant by choice but she was turned out of the matrimonial house while the minor was forcibly kept by the appellant and his wife (since deceased). The judgments referred to by counsel for the appellant rather support the findings of the trial Court upholding the plea of the respondent. 8. We have heard counsel for the parties and perused the records. 9. Before we proceed to deal with the merits of the controversy, it would be appropriate to refer to Section 6 of the 1956 Act, quoted hereinunder:- 6. Natural guardians of a Hindu minor.- The natural guardians of a Hindu, minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are- (a) in the case of a boy or an unmarried girl-the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) xx xx xx (c) xx xx xx” A perusal of Section 6 of the 1956 Act makes it crystal clear that in case of a boy, the natural guardian of a Hindu minor is the father and after him, the mother. The father of the minor has passed away, therefore, the respondent being the mother of the minor, is the natural guardian of the minor child. The father of the minor has passed away, therefore, the respondent being the mother of the minor, is the natural guardian of the minor child. However, there cannot be any dispute about the settled position in law that in matters relating to appointment of guardian of a minor or custody of a child, the ‘well being and interest’ of the minor are paramount consideration and conflicting interests of contesting parties cannot be allowed to be pitted against the welfare of the minor. In Dr.Ashish Ranjan’s case (supra), the Hon’ble Supreme Court, made the following observations:- “18. It is settled legal proposition that while determining the question as to which parent the care and control of a child should be given, the paramount consideration remains the welfare and interest of the child and not the rights of the parents under the statute. Such an issue is required to be determined in the background of the relevant facts and circumstances and each case has to be decided on its own facts as the application of doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are concerned. While considering the welfare of the child, the “moral and ethical welfare of the child must also weigh with the court as well as his physical well being”. The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled by the court with care and caution with love, affection and sentiments applying human touch to the problem. Though, the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases. (vide Gaurav Nagpal v. Sumedha Nagpal, AIR 209 SC 557).” 10. In Yogesh Kumar Gupta’s case (supra), the Court has reiterated that what is important in matters relating to custody of children is their interest and welfare. However, keeping in view the circumstances of the case, the Court held that the father, a natural guardian, is not entitled to custody of the children as the mother of the children had died while in the company of respondent No. 1, who had to face trial relating to offences punishable under Sections 498-A and 304-B IPC. However, keeping in view the circumstances of the case, the Court held that the father, a natural guardian, is not entitled to custody of the children as the mother of the children had died while in the company of respondent No. 1, who had to face trial relating to offences punishable under Sections 498-A and 304-B IPC. It has further been held that though the father has been acquitted of the charge, merely for that reason, the custody need not necessarily be given to him. Counsel for the appellant has failed to draw any similarity between the facts of the case in hand and the referred authority in order to substantiate his contention that the mother is disentitled or proved any special circumstances which creates an impediment in award of custody of the child. The appellant cannot take advantage of observations made in Yogesh Kumar Gupta’s case (supra) which has been decided in view of its peculiar facts and circumstances. 11. In Nil Ratan Kundu’s case (supra), the Hon’ble Supreme Court has held that in deciding a difficult and complex question as to custody of minor, a Court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with a humane touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting a proper guardian of a minor, the paramount consideration should be the welfare and well being of the child. In selecting a guardian, the Court is expected to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above, physical comforts, moral and ethical values cannot be ignored. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well,though the final decision should rest with the Court as to what is conducive to the welfare of the minor. 12. But over and above, physical comforts, moral and ethical values cannot be ignored. If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well,though the final decision should rest with the Court as to what is conducive to the welfare of the minor. 12. On a careful appreciation and analysis of the relevant provisions of the statues and the judgments cited by counsel for the appellant, it is crystal clear that every care is to be taken by a Court, while deciding to examine its peculiar facts and circumstances, as no other case or decision, can become a guide for the Court to take a particular decision. However, it is a settled principle of law that the paramount consideration remains the ‘welfare’ and ‘interest’ of the child and not the rights of the parties under the statutes. 13. It would be appropriate to mention that appellant Nand Lal and his wife Khazano Devi, who are the grand parents of the minor child, filed a petition under Section 6 of the 1956 Act for their appointment as guardian of the minor’s person and property which was dismissed by the Court of Civil Judge (Senior division), Sonepat, vide order of even date. There is nothing on record to suggest that Nand Lal has filed any appeal assailing the findings of the trial Court rejecting his claim to act as guardian of the minor. The petition for guardianship was filed by Brij Bala against appellant Nand Lal and his wife Khazano Devi. However, Khazano Devi died during pendency of the petition before the trial court. The present appeal has been preferred by Nand Lal alone. 14. The respondent is the mother and the natural guardian of the minor. She is residing with her parents. The parents of the respondent own a house in Ambala. All her brothers and sisters are married and well settled in their respective houses as deposed by respondent Brij Bala. There is no challenge to her testimony during her cross examination that she is earning Rs.5,000/- to 6,000/- per month. The respondent is a young lady with a good physique. There is nothing on record to suggest that she is suffering from any ailment rendering her unable to work and to earn money for the up bringing and education of the child. The respondent is a young lady with a good physique. There is nothing on record to suggest that she is suffering from any ailment rendering her unable to work and to earn money for the up bringing and education of the child. The appellant has neither pleaded nor otherwise proved on record that there exist any circumstance which can stand in the way of the mother acting as a guardian of the minor. The respondent, being the mother is the best person to look after the moral and ethical welfare of the child besides handling him with great care and caution, love, affection and the sentiments associated with a mother. The respondent left the matrimonial home in July, 2006. The present petition was filed in August, 2006, one month after she left the matrimonial home. The appellant has stated in his affidavit filed as his examination in chief that the respondent had been extending threats to forcibly take away the child. The statement of Nand Lal rather indicates that the respondent mother was a little volatile and may be she was writhing in pain due to separation from her child. The mere fact that Nand Lal may be earning slightly more than the respondent, is not at all sufficient to deprive the mother of her right to act as guardian of the minor and to recover his custody. 15. The appellant has failed to lead any tangible evidence on record which can create a preferential right in his favour to have custody of the minor viz-a-viz respondent mother. The trial Court, on a correct appraisal of the entire matter, has recorded a finding against the appellant and in favour of the respondent. We find no error much less illegality in the findings recorded by the trial Court as would call for interference. In view of what has been discussed hereinabove, the appeal is without any merit and the same is accordingly dismissed. No order as to costs. --------0.B.S.0------------ ————————