Guardians and Wards Act,1890
17. Matters to be considered by the court in appointing guardian
(1) In appointing or declaring the guardian of a minor, the court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If minor is old enough to form an intelligent preference , the court may consider that preference.
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(5) The court shall not appoint or declare any person to be a guardian against his will.
Comment: We are, however, satisfied having regard to the circumstances of the case and the past history that the custody of the child should be immediately given to the mother as the child is less than 5 years old. The mother will, therefore, have the custody of the child. It will, however, be open to the father, that is, respondent No. 1 to apply for the custody of the child in appropriate guardianship proceedings. The respondent No. 1, however, will be entitled to visit the residence of the petitioner @page-SC1157 and be with the child during week ends (on Saturdays and Sundays)., Smt. Manju Tiwari v. Dr. Rajendra Tiwari, AIR 1990