A.M.BHATTACHARJEE, J. - (1.) The proceeding under S.25 read with S.12 and S.7 of the Guardians and Wards Act 1890, giving rise to this appeal, appears to be a tug of war between the father on the one hand and the maternal grand-parents on the other, over the custody of a child who was aged about 11 months only when the proceeding was initiated in November, 1987. There should be no manner of doubt that a child of such tender age ought not to be subjected to tugging by zealous or jealous relations, whoever they may be, fighting with the bellicosity of relentless combatants. It is settled beyond doubt that in matters relating to custody of child, it is not the legal right of the claimant which is decisive, but it is the welfare of the child which is the primary and paramount test and no one can recover custody of a child merely by brandishing his legal right or financial affluence.
(2.) An impression has gained ground, erroneous though, that once a legal guardian proves his lawful right to the custody of the child and that he is in a position, financially and otherwise, to look after the welfare of the child, an order for the return of the child to his custody is almost a must and a matter of course. We are afraid that this is not the position in law as would appear from a proper reading of the provisions of Section 25(1) of the Guardians and Wards Act, material provisions whereof are as hereunder :- "25(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..:... :" Even though the expression may has been used, we find no reason as to. why the Court shall not order return "if it is of opinion that it will be for the welfare of the ward" to return to the custody of the guardian and in our view, therefore, the expression "may" in the context of the words underlined hereinabove does not confer a discretion but conveys almost a mandate. But whether the jurisdiction of the Court under Section 25(1) is mandatory or directory, it can order a return if and only if"it is of opinion" that such a returnis for the welfareof the ward in the context of the facts and circumstances of the case. Our reading of the provisions of Section 25(1) is that even if a child is in the custody of one who hasno legal rightthereto and its welfare is reasonably looked after in a manner in which it should, the legal guardian cannot claim an order of return or recoverymerely on the strength of his legal right and by parading his financial or other capacity to provide a welfare custody,unlessthe Court forms a definite opinion that even though its welfare is reasonably looked after, such order of return would be for its better or further welfare. If the welfare of the ward is in fact duly taken care of by the person who has the factual, though not the legal custody, the expression "welfare" in the words "it will befor the welfareof the ward to return" in Section 25(1) should reasonably mean more or better or further welfare.
(3.) In a rather recent Division Bench judgment of this Court in Raj Kumar v. Barabara, AIR 1989 Cal 165, we have held that "if a mother has in fact the custody of the minor of tender years, even though she may not have the legal right to such custody, the same should not to changed or altered except for compelling reasons" and reliance was placed by us on the observations of Lord MacDermot in the House of Lords in J.v.C. (1969) 1 All ER 788 at 824 to the effect that "even though some of the authorities convey the impression that the upset caused to a child by change of custody is transient and a matter of small importance", "a groaning experience has shown that it is not always so and that serious harm even to young children may, on occasion, be caused by such a change".;