- (1.) OM Prakash, J. This is a first appeal by the defendant-appellant against im pugned judgment and decree dated 10-5- passed by the Family Court, Kanpur Nagar appointing respondent- plaintiff as the guardian of Master Gagan Deep-Singh who was born from the union of the appel lant and respondent after their marraige having taken place on 3-6-1990 according to Sikh religion, which they belong to.
(2.) AN application was made by the respondent husband under Section 10, read with Section 25 of the Guardian and Wards Act; 1890 (briefly, the Act of 1890) for secur ing custody of his son-Master Gagan Deep Singh stating that Gagan Deep was born on 14-4-1991, that his wife (appellant) left his house without any reason and started living with her parents from 20-11-1991; that the appellant filed a habeas corpus petition seeking a direction against the respondent to present the minor son in the Court and for giving him into her custody; that by the order of the High Court, the child being below five years of age was given in the custody of the appellant; and that the cus tody of the child having completed the age of five years be given to him as he being the natural guardian has preferential right to his custody. The said application was al lowed by the court below observing in the impugned order that the financial position of the respondent was much better than that of the appellant and that the respondent being a natural guardian of the minor son was entitled to the custody of the child. It is this order which has been chal lenged in this appeal by the appellant. The short question for consideration ii whether the respondent is entitled to the custody of the minor son for the reason that his finan cial position is better than that of the appel lant. In Mrs. Elizabeth Dinshaw v. Arvand. M. Dinshaw another, AIR 1987 SC 3, the Court enunciated that "whenever a question arises before the Court pertaining to the custody of a minor children, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. " Can it be said that because of good financial position of the father, welfare of the minor child cannot be taken care of by the mother and that father will take more care of the welfare of the child? Financial resources may be one of the relevant factors for deciding the question as to who will be interested more in the welfare of the minor child, but that is not the sole and very vital factor to decide such a ticklish question. Besides Financial resources, so many other factors have to be considered by the Court for reaching the conclusion whether father is more interested in the welfare of the child or the mother. No doubt, welfare of the child is the paramount consideration and that is consistent to the provisions of Sec tions 7 and 17 of the Act of 1890, which indicate welfare of a minor as the sole guid ing factor, Section 13 of the Hindu Minority and Guardianship Act, 1956 (for short, the Act) also provides that welfare of minor shall be paramount consideration for decid ing the guardianship. The court below while ordering custody of the minor son to the father also emphasised on the fact that after the age of five years of the minor, the father is the natural guardian under Section 6 of the Act. When welfare of minor is the main consideration, the norial rule that the father is the natural guardian is not followed. In case of girls, the mother is generally given custody irrespective of their age, because she can understand better the needs of in hibited girls. The courts in general must decide the naughty problem of custody from the point of view as to in whose hands will there be welfare of the child. The father, no doubt, has a legal right, but that right is always in subjugation to the welfare of the minor. If it is not in the interest of the minor to keep him in custody of the father, the fact of father being the natural guardian is of no consequence. The father has no ab solute right to have the custody of minor, though he may be a natural guardian of the minor.
(3.) THERE is case law on the point that a father being a natural guardian of a minor child, has a preferential right to the cus tody of minor. Preferential right, in my view, does not mean an absolute right of the father to the custody of minor child. Before giving custody of minor who has completed age of five years to the father the court has to ensure that welfare of the child will be taken care of best by him. Simply because in this case, the respondent father possesses better financial resources than the appellant mother, that alone is not enough to ensure greater welfare of the minor in his hands. The case of the appellant is that after the marriage she was harassed by the respondent and his parents for not having brought dowry to their satisfaction. She made an application for maintenance, which is Annexure-3 to the counter-af fidavit, filed by the respondent in this appeal stating that she was continuously harassed by the respondent and her parents on the issue of inadequate dowry; that she dis closed her mental agony to her parents; that her parents had gone to the house of the respondent to fetch the appellant; that the appellant returned with her parents from her matrimonial home, bi it she was not per mitted to take the child with herself; that after some time the respondent went to the house of his in-laws and persuaded them to send the appellant with him to matrimonial home on the assurance that she would be treated and looked after well by him without giving any further cause of complaint; that after having returned to the matrimonial name on the assurance of the respondent, the appellant was again ill-treated and harassed with impunity; that the appellant apprehending danger to her life managed to escape from the matrimonial home to take shelter in the wings of her parents on 20-12-1991 but without child; that the child though he was not even one year old, was not returned to the appellant by the respon dent; that the appellant then had to file a habeas corpus petition to secure custody of the minor child which was allowed by the High Court on 27-4-1992 with the observa tions that under Section 6 of the Act, mother is normally entitled to the custody of a child below five years of age; and that the child being less than one year old, the appel lant was legally entitled to the custody of the child. This Court in that judgment (Annexure '1' to the appeal) also held that "the opposite party, husband, had by force kept the child with himself and allowed the petitioner to go. She had not left the child herself. ";