ORDER : Rajendra Mahajan, J. 1. The appellant has preferred this appeal under Section 47 of the Guardians and Wards Act, 1890 (hereinafter referred to as the Act) being aggrieved by and dissatisfied with the order dated 10.07.2015 passed by the Additional Sessions Judge, Begumganj, district Raisen, in Guardian Case No. 40A/13 titled Rajendra Kumari (Smt.) and Another vs. Rajendra Singh, whereby the learned trial Judge has appointed the respondents as guardians of minor girl Ku. Karnika aged about 5 years and directed the appellant to hand over her custody to them by allowing their application under Section 7 of the Act. 2. For the sake of convenience, the appellant and the respondents are hereinafter referred to as the non-applicant and the applicants respectively as per their status in the trial court. 3. The case of the applicants in brief is that Krishna Pratap Singh @ Chhoteraja was their youngest son. On 19.02.2007, he was married to Radhika Raje @ Ritu Raje, the daughter of the non-applicant, as per Hindu religion and wedding rites and customs prevailing in their caste. From their wedlock, Radhika gave birth to a girl-child named Karnika on 04.03.2011. At the time of filing of the application in the trial court, her age was about 3 years. 4. It is alleged by them that some months into the marriage, the non-applicant and Radhika subjected Krishna Pratap Singh to torture, harass, ill-treat and assault with an objective to force him to live with the family members of the non-applicant at Shivpuri giving up the company of his parents. They also pressurised him to give them his earnings threatening to send him behind the bars. On 29.09.2015, Radhika with minor Karnika left her matrimonial home without informing Krishna Pratap Singh and any other member of their family. As a result, Krishna Pratap Singh and they searched for Radhika and minor Karnika. Two days later, the non-applicant made a call to Krishna Pratap Singh to come over to Shivpuri. There, the non-applicant and Suresh Sikarwar, the then Sub Divisional Police Officer of Shivpuri, badly humiliated him and got him thrashed. On account of humiliation and torture meted out to him at their hands, he committed suicide before a running train on 10.07.2012, leaving a suicide note in which he has held the non-applicant, said Suresh Sikarwar and his wife Radhika responsible for his suicidal death. On account of humiliation and torture meted out to him at their hands, he committed suicide before a running train on 10.07.2012, leaving a suicide note in which he has held the non-applicant, said Suresh Sikarwar and his wife Radhika responsible for his suicidal death. Thereupon, a criminal case against them for the commission of offences punishable under Sections 306, 341 and 34 of the IPC is registered at the Police Station Chhola Ka Mandir, Bhopal at Crime No. 537/ 2012. 5. It is claimed by the applicants that it was dying wish of Krishna Pratap Singh that minor Karnika would live under their care, love and affection. To fulfil his wish, they went to Shivpuri with an objective to bring her with them. There, an understanding was arrived at between them on the one side and the non-applicant and Radhika on the other. According to this understanding, they would bring minor Karnika up and, therefore, they brought her with them. Thereafter, their elder son Shiv Pratap Singh and his wife and they have started raising minor Karnika with love and affection and proper care. She was happy with them forgetting her mother Radhika. Six or seven months before filing of the application, the non-applicant came over to their place of residence and told them that Radhika was seriously ill and that she wanted to keep minor Karnika with her. At that time, he assured them that he would send minor Karnika back after Radhika's recovery from illness. Upon his assurance, they allowed the non-applicant to take minor Karnika with him. Some time later, the non-applicant had totally stopped communicating with them. Thus, the non-applicant had taken minor Karnika away from them by deception. It is asserted by them that no legal action against the non-applicant was initiated by them as they find solace in the fact that minor Karnika has been living in the care, love and affection of her mother Radhika. On 09.10.2013, they came to know that Radhika committed suicide because of torture and harassment she had undergone at the hands of non-applicant and others. As such, hapless minor Karnika had lost her parents. After death of her parents, as per Hindu-Law they are her natural guardians being her paterna l5 M.A. No. 1743/2015 grandparents. That is why, on 27.10.2013 they went to Shivpuri to bring minor Karnika back. As such, hapless minor Karnika had lost her parents. After death of her parents, as per Hindu-Law they are her natural guardians being her paterna l5 M.A. No. 1743/2015 grandparents. That is why, on 27.10.2013 they went to Shivpuri to bring minor Karnika back. The non-applicant and his family members told them that they would allow them to take minor Karnika back on the condition of withdrawal of all the cases which are instituted against them upon their reports. 6. It is claimed by the applicants that there is no conducive ambiance in the house of the non-applicant and there is nobody to look after welfare and interest of minor Karnika, to attend her day to day needs and to shower love and affection upon her. As a result, her childhood is being badly affected and her future is in the dark. It is also stated by them that applicant Narendra Pratap Singh is an educated person and their financial position is very sound. They have houses of their ownerships at Begumganj and Bhopal. Their elder son Shiv Pratap Singh is educated and he is in a government job. His wife is also educated. Their children are studying in convent school. They would take proper care and provide love and affection to minor Karnika. Moreover, she will grow up in age in normal course in the company of children of their elder son Shiv Pratap Singh. In view of the above, the overall welfare and interest of minor Karnika is safer and more secured with them. It is, therefore, prayed that they be appointed the guardians of minor Karnika and the non-applicant be directed to hand over them her custody. 7. In a written-reply to the application, the non-applicant has admitted the following facts:- that his daughter Radhika got married to Krishna Pratap Singh, that from their wedlock Radhika gave birth to minor Karnika, that Krishna Pratap Singh and Radhika committed suicide and that minor Karnika is presently living with them. However, he has denied all the allegations levelled against him by the applicants. It is worth mentioning here that the non-applicant has not taken any specific stand in his reply. He has simply made a prayer for rejection of the applicants' application. 8. Upon pleadings of the parties, the trial court framed issues. However, he has denied all the allegations levelled against him by the applicants. It is worth mentioning here that the non-applicant has not taken any specific stand in his reply. He has simply made a prayer for rejection of the applicants' application. 8. Upon pleadings of the parties, the trial court framed issues. The applicants in support of their claim have examined applicant Narendra Pratap Singh as AW-1, his elder son Shiv Pratap Singh (AW-2) and son-in-law Chandra Pratap Singh (AW-3). It is noteworthy that the learned trial Judge foreclosed the right of the non-applicant of adducing evidence on 21.04.2015 giving the reasons therefor, which will be discussed a little later. The learned trial Judge, after analysing closely the evidence on record has returned a finding that the welfare of minor Karnika in all respect is safer and more secured in case she resides with the applicants. Consequently, the learned trial Judge has allowed the application and appointed the applicants the guardians of minor Karnika and directed the non-applicant to deliver her custody to them. Hence, this appeal by the non-applicant. 9. The main thrust of the arguments of the learned counsel for the non-applicant/appellant is that the applicants by means of muscles and money power had precluded the non-applicant from giving evidence in support of his stand before the trial court. Hence, it would be in the interest of justice to remand the case for retrial with a direction to the trial court for giving sufficient time to the non-applicant for adducing evidence. On merits, it is submitted that the learned trial Judge has lost sight of the fact that minor Karnika has been living under the care and affection of the non-applicant and his family members for quite a long time, therefore, she has completely mixed up and emotionally attached with them. In the circumstances, if her custody is handed over to the applicants, then she would not be able to adjust herself mentally because of her tender age in their family. This would certainly impact adversely upon her mind-set and she will live with them in a sulk. Upon these submissions, the learned counsel has prayed for setting aside the impugned order on merits as well. This would certainly impact adversely upon her mind-set and she will live with them in a sulk. Upon these submissions, the learned counsel has prayed for setting aside the impugned order on merits as well. In the alternate, it is submitted that in case the impugned order is upheld by this court, then the visiting rights be given to the non-applicant on humanitarian grounds because of the close relationship of the applicant and his family members with minor Karnika as the impugned order is totally silent in this respect. 10. Per contra, the learned counsel for the applicants/respondents after referring to the proceedings of various dates of hearing of the trial court, has submitted that the trial court had granted three opportunities as per the provisions of Order 17, Rule 1 of the CPC. But, the non-applicant failed to adduce any evidence in support of his claim. Thereupon, the trial court forfeited the right of the non-applicant for submitting evidence vide order dated 21.04.2015 passed in the order-sheet of that day. It is submitted that thereafter the arguments were heard by the learned Judge on 09.07.2015. It is submitted that the non-applicant had not filed any application for grant of additional opportunities for adducing evidence during the interregnum between 21.04.2015 and 09.07.2015 on the grounds that the applicants had prevented him from producing evidence before it giving life-threats and using muscles and money power. It is submitted that in the circumstances the insistence of the learned counsel for the non-applicant for remand of the case for re-adjudication is without substance, hence, the same is unjustifiable and unreasonable. It is submitted that law is settled in respect of appointing or declaring the guardian of a minor, which is the paramount consideration before the court concerned ought to be the welfare of the minor and nothing else. It is submitted that the learned trial Judge has held that the welfare and interest of minor Karnika is safer and more secured in the hands of the applicants after having examined the evidence on record from all angles. Thus, no inference with the impugned order is required to be made by this court and the appeal be dismissed being merit-less. 11. We have given our anxious considerations to the rival submissions made by the learned counsel for the parties across the Bar and perused the entire material on record. 12. Thus, no inference with the impugned order is required to be made by this court and the appeal be dismissed being merit-less. 11. We have given our anxious considerations to the rival submissions made by the learned counsel for the parties across the Bar and perused the entire material on record. 12. First, we will consider whether the fact-situation of the case warrants retrial of the case on the grounds as stated by the learned counsel for the non-applicant/appellant in the course of arguments. Having gone through the record of the trial court, we find that evidence of the applicants was closed on 03.12.2014. Thereafter, the trial court posted the case for recording the evidence of the non-applicant. The effective dates of hearing in this respect were 07.01.2015, 12.01.2015, 21.01.2015 and 21.04.2015. The trial-proceeding dated 21.04.2015 reveals that the non-applicant was not present in person and his advocate Shri P.S. Rajput expressed his inability to produce the evidence. In the circumstance, the learned trial Judge forfeited the right of giving evidence by the non-applicant. Thereafter, the case was fixed for arguments, the effective dates of hearing in this regard were 29.04.2015, 11.05.2015, 16.05.2015, 15.06.2015, 18.06.2015, 24.06.2015 and 26.06.2015. On the said dates, the time was granted by the learned trial Judge for stating the arguments at the request of either learned counsel for the parties or both. At last, the learned trial Judge heard final arguments on 09.07.2015 and passed the impugned order on the following day i.e. 10.07.2015. The time interval between the closure of the evidence of the non-applicant i.e. 21.04.2015 and the date of hearing of final arguments i.e. 09.07.2015 was near about three months. Upon close scrutiny of record of the trial court, we find that the non-applicant never filed an application for grant of further time for adducing evidence on the grounds that on all the earlier three occasions of submitting evidence by him, he was prevented by the applicants from doing so. Therefore, we hold that the contention of the learned counsel for the non-applicant has not been substantiated from record of the trial court. 13. Therefore, we hold that the contention of the learned counsel for the non-applicant has not been substantiated from record of the trial court. 13. From a perusal of the proceedings and the manner in which the non-applicant has participated in the case, it is apparent that he has made the prayer for remand only with a view to prolong the proceedings as he did not take up the necessary steps in spite of being given several opportunities to contest the case before the trial court. Even before this Court, when the matter was listed on various occasions, the attempt of the non-applicant was to get the matter adjourned and delayed and, therefore, it is clear that whether it was before the trial court or this Court the attempt of the non-applicant is only to prolong the proceedings and delay decision thereon which to our mind amounts to misuse and abuse of the process of law and is not in the interest of minor Karnika. More importantly, as we have noted in para 7 of this order that the non-applicant has not taken specific stand opposing the relief as sought by the applicants necessitating the remand of the case for retrial. 14. Consequently, we out rightly reject the prayer for remand of the case and proceed to decide this appeal on merits. 15. Section 7 of the Act and Section 13 of the Hindu Minority and Guardianship Act 1956 (for short the Act 1956) mandate the court while declaring/appointing any person as a guardian of minor, the welfare of the minor shall be paramount consideration. Section 17 of the Act provides that at the time of consideration of the welfare of minor, the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and nearness of kin to the minor, the wishes if any of deceased-parents and any existing or previous relations of the proposed guardian with the minor or his/her property. Further the Section clearly states that if there is a conflict between the personal law to which the minor is subject and the welfare of the minor, the latter must prevail. The Section also stipulates that if minor is old enough to form an intelligent preference the court may also consider that preference. Further the Section clearly states that if there is a conflict between the personal law to which the minor is subject and the welfare of the minor, the latter must prevail. The Section also stipulates that if minor is old enough to form an intelligent preference the court may also consider that preference. It is worth mentioning here that on 17.08.2016, the applicants and the non-applicant as also minor Karnika were present in person before the court. First we made a conscious effort to settle the dispute through mediation. However, the mediation was unsuccessful. It is worthwhile to mention here that we have not inquired from minor Karnika personally as to her preference in this regard on the grounds of her tender age as she is presently aged about 5 years and she has been living in the company of the non-applicant and his family members before the death of her mother. Therefore, her preference would not be certainly free from tutoring or prompting made by the non-applicant and his family members. Moreover, she is not able to decide her own welfare in residing with the applicants or the non-applicant because of her immaturity. 16. The expression "welfare of the minor" is not defined in the aforesaid Acts. However, there are some decisions in which the welfare of the minor is exposited in a great detail. 17. This court in Mohammed Mehboob Khan vs. Rahmit Bi and Others, 1977 V-II W.N. 79 and Rajkumar vs. Indrakumari 1972 JLJ 1045 has observed that the dominant factor for consideration of the court is the welfare of minor, which is not to be measured only in terms of money and physical comforts. The word "Welfare" must be taken in its widest sense so as to embrass the material and physical well-being; the education and upbringing; happiness and moral welfare. The court must consider every circumstance bearing upon these considerations. 18. In Rosy Jacob vs. Jacob A. Chakramakkal, (1973) 1 SCC 840 , the Supreme Court has observed thus:- "15.........The children are not mere chattels: nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society...." 19. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society...." 19. In Elizabeth Dinshaw vs. Arvand M. Dinshaw, AIR 1987 SC 3 , the Supreme Court has observed as under:- "Whenever a question arises before the court pertaining to the custody of the minor child, the matter is to be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the child." The same view has been reiterated by the Supreme Court in Sumedha Nagpal vs. State of Delhi, (2000) 9 SCC 745 . 20. In Anjali Kapoor (Smt.) vs. Rajiv Baijal, (2009) 7 SCC 322 , the Supreme Court has concurred with the observations made in Walker vs. Walker & Harrison's case by the New Zealand High Court, which reads thus:- "Welfare is an all-encompassing word. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child's own character, personality and talents." 21. In a decision reported in R.V. Srinath Prasad vs. Nandamuri Jayakrishna, AIR 2001 SC 1056 , the Supreme Court has emphasised that the custody of minor is a sensitive issue. It is also a matter involving the sentimental attachment. Such a matter is to be approached and tackled carefully. A balance has to be struck between attachment and sentiment of the parties towards the minor and the welfare of minor which is a paramount importance. 22. In the present case the legal battle for taking guardianship of minor Karnika is between her paternal-grandparents i.e. the applicants and maternal-grandfather i.e. the non-applicant following the death of her parents. A balance has to be struck between attachment and sentiment of the parties towards the minor and the welfare of minor which is a paramount importance. 22. In the present case the legal battle for taking guardianship of minor Karnika is between her paternal-grandparents i.e. the applicants and maternal-grandfather i.e. the non-applicant following the death of her parents. Both the aforesaid Acts are silent on the point which grandparents i.e. paternal or maternal will have preferential claim over the guardianship of minor grandchild. 23. Upon a perusal of the entire record, we find that minor Karnika's deceased parents have not left behind them any substantial property. Therefore, the legal battle between the applicants and the non-applicant is purely of emotive nature. It is, therefore, understandable that the applicants seek the custody of minor Karnika to cherish the memory of their deceased son Krishna Pratap Singh as they regard her the embodiment of him, whereas the non-applicant keeps minor Karnika in his custody as a living soul of his deceased daughter Radhika. 24. Keeping these factors in mind, we proceed to consider as to which party of the case deserves to be the guardian of minor Karnika in the given facts and circumstances of the case. 25. Applicant Narendra Pratap Singh (AW-1) is the paternal-grandfather of minor Karnika. In his evidence, he has stated that he is a retired government pensioner and that his education is up to B.A. He has further stated that after the commission of suicide by his son Krishna Pratap Singh his wife Radhika started living with her parents at Shivpuri. As per the last wish of his deceased son, he and his wife brought minor Karnika from the custody of her mother Radhika. His wife, his elder son Shiv Pratap Singh and his wife brought minor Karnika up in an atmosphere of love and affection and they paid personal attention to every need of hers. Minor Karnika was also happy in the company of children of his son Shiv Pratap Singh. As such, minor Karnika was growing up under their guardianship. Six or seven months before the commission of suicide by her mother, the non-applicant came over to their place of living. He took minor Karnika with him on the pretext that her mother was seriously ill and that she wanted to keep minor Karnika with her. As such, minor Karnika was growing up under their guardianship. Six or seven months before the commission of suicide by her mother, the non-applicant came over to their place of living. He took minor Karnika with him on the pretext that her mother was seriously ill and that she wanted to keep minor Karnika with her. Having believed upon his representation, he and his family members allowed the non-applicant to take her with him. On 09.10.2013, her mother committed suicide. Thereafter, he and his family members made an attempt to bring her back to reside with them. However, the non-applicant refused to hand over her custody to them. Under the circumstance, he and his wife filed the application seeking her custody. He has further stated that he is a permanent resident of Begumganj, where he has a house of his ownership. He also owns a house at Bhopal. He is owner of 40 acres of agricultural land situated in village Chachoda. His elder son Shiv Pratap Singh holds a post of the Panchayat Secretary. His wife is also educated. His children study in convent school at Begumganj. As such, there is a good atmosphere in his house. He is economically very sound, which is in the interest of minor Karnika. Therefore, the overall welfare of minor Karnika is fully safe and secured with them. He has alleged that the atmosphere in the house of the non-applicant is disquieting, suffocating and frightful. The non-applicant is a criminal and he is also an alcoholic. His wife is in a chronic condition. His son and his family live separately from them. Under the circumstances, there is nobody in the house of the non-applicant to look after minor Karnika properly and to shower love and affection upon her. Therefore, an overall atmosphere in the house of the non-applicant is not conducive, just and proper for transformation of minor Karnika into a good citizen of future. 26. The aforesaid evidence of the applicants is corroborated in material particulars by the evidence of his son Shiv Pratap Singh (AW-2) and son-in-law Chandra Pratap Singh (AW-3). 27. After going through the cross-examinations of the aforesaid witnesses, we find that there is nothing in their cross-examinations to doubt the veracity of their evidence. Moreover, the non-applicant has not adduced any evidence to controvert their evidence. 27. After going through the cross-examinations of the aforesaid witnesses, we find that there is nothing in their cross-examinations to doubt the veracity of their evidence. Moreover, the non-applicant has not adduced any evidence to controvert their evidence. We, therefore, hold that the testimonies of applicant Narendra Pratap Singh, Shiv Pratap Singh and Chandra Pratap Singh are wholly reliable and upon their evidence we hold that the learned trial Judge has not erred in law or facts appointing the applicants the guardians of minor Karnika and directing the non-applicant to hand over her custody to them. 28. From the undisputed facts available on record it is clear and apparent that minor Karnika's late father Krishna Pratap Singh was subjected to such cruelty and ill-treatment by the non-applicant that he committed suicide and while doing so he has specifically named them as the person abetting the commission of the suicide in respect of which a criminal case is already pending against the non-applicant and others. It is also clear that minor Karnika's mother also committed suicide while staying with the non-applicant and, therefore, in our considered opinion appointment of the non applicant as guardian to minor Karnika would definitely not be in her interest or in furtherance of her welfare. 29. From the facts on record it is also clear that there are no children in the house of the non-applicant nor is there any young person to look after minor Karnika, whereas Shiv Pratap Singh, the elder brother of minor Karnika's deceased father, his wife and children are staying along with the applicants and, therefore, they would be in a much better position to look after the welfare and interest of minor Karnika as well as ensure a better living atmosphere and future for her. 30. From perusal of the impugned order, we find that the learned trial Judge has not granted visitation rights to the non-applicant and his family members at the time when minor Karnika will be in the care and custody of the applicants. Since the non-applicant is none other than the maternal-grandfather of minor Karnika, he and his family members will have certainly emotional attachment with her. Since the non-applicant is none other than the maternal-grandfather of minor Karnika, he and his family members will have certainly emotional attachment with her. In the circumstance, we deem it just proper and humane to grant the non-applicant and his family members the visitation rights as under: (i) The applicants shall allow the non-applicant and his family members to visit and meet minor Karnika on her birthday, festivals and other occasions, subject to prior intimation by them to the applicants. (ii) The applicants shall not prevent the non-applicant and his family members from giving any sorts of gifts/presents to minor Karnika nor shall they prevent her from communicating with her maternal-grandparents and their family members through electronic gadget. (iii) The parties are at liberty to enlarge the scope of the visiting rights upon mutually agreed terms and conditions. 31. In view of the discussion supra, we affirm the impugned order, whereby the respondents/applicants have been appointed Guardian of minor Karnika, with the addition of the afore stated visitation rights and dismiss this appeal. The parties are directed to bear their own costs of litigation throughout. 32. In view of the dismissal of the appeal, it is directed that the appellant/non-applicant shall hand over custody of minor Karnika by 8th October, 2016 failing which the Collector and the Superintendent of Police Shivpuri shall take immediate action to take over her custody from him and members of his family and hand over her custody to the respondents/applicants. In case of difficulties for school admission to minor Karnika in this academic year to the place where the respondents/applicants reside, then the concerned District Collector and the Education Officer will ensure her admission preferably in the same school where minor Karnika's cousins are prosecuting their studies. 33. The Registrar Judicial is directed to transmit copies of this order immediately to the Collectors and the Superintendents of Police of the concerned districts as well as to the parties of the case for information and necessary compliance. The Collector and the Superintendent of Police Shivpuri shall inform the Registry of this court in due course the action taken by them in pursuance of this order in writing.