- (1.) BY this appeal under section 47 of the Guardians and Wards Act (No. VIII of 1890), the mother, who is non-petitioner (appellant) has questioned the correctness of the order dated October 6, 1979 of the District Judge, Jodhpur, by which he accepted the petition of the father (petitioner-respondent) and directed that he will get the custody of his minor son Mohammed Hamid. The petitioner-respondent and non-petitioner appellant will hereinafter be referred to as the father and mother respectively. The relevant facts may briefly be noticed. The father was married with the mother at Jodhpur on September 23, 1969. Out of this wedlock, the mother gave birth to a male child on October 19, 1970. The name of the child is Mohammed Hamid. On June 23, 1971, the mother went to her parents' house and she took Mohammed Hamid with hear. She did not return thereafter. It was stated that the mother sued the father for maintenance and divorce and was unsuccessful. Mohammed Hamid completed seven years of age on October 19 1977. The father filed a petition under s. 25 of the Act in the Court of District Judge, Jodhpur for the return of the custody of the minor Mohammed Hamid on October 31, 1977 on the ground that it is the welfare of his minor son Mohammed Hamid that his custody should be returned to him from the mother. The mother resisted the petition. It was admitted by her that she is living with the minor son in her parents' house since September 23, 1971. She pleaded ill treatment of the father and the members of his family. It was also alleged by her that the father had contacted a second marriage and he has never taken care of the minor Mohammed Hamid for the last seven years. In these circumstances; it was prayed by her that it would not be in the welfare and interest of the minor to deliver him the custody of Mohammed Hamid In support of the petition, the father examined P. W. 1 Jai Dutt Purohit, PW. 2 Mohammed Sabir (father), P. W. 3 Mohammed Hassam (the father of the father), PW 4 Abdul Gaffar and PW 5 Ann Raj The mother examined N. A. W, 1, Tejraj NAW 2, Nazma (mother), N. A. W. 3 Mohammed Rafiq, N. A. W. 4 Mustaq Ali, N. A. W. 5 Mohammed Ahsan (brother of the mother) and Mohammed Hamid (minor ). The learned District Judge by his order dated October 6,1979, accepted the petition or the father holding that he is entitled to recover the custody of his minor son Mohammed Hamid, who was in the custody of the mother. She was directed to return the minor Mohammed Hamid to the custody of the father on or before November 2, 1979. It was also ordered that if she failed to do so by that time, a 'warrant should be issued in accordance with the provisions of section 25 (2) of the Act. Aggrieved, the mother has preferred this appeal.
(2.) I heard Mr. P. C. Mathur, learned counsel for the appellant and Mr. G. M. Mehta, learned counsel for the respondent and have also carefully considered the record. The contention of Mr. Mathur is that the learned District Judge committed a serious error when he recorded a finding that the minor Mohammed Hamid should no more be kept in the custody of his mother, as it is not in his, welfare and interest to remain with her. Mr. G. M. Mehta, on the other hand, supported the order of the District Judge on the basis of the facts, which were found by the learned District Judge for showing that it is in the welfare and interest of the minor that his custody should be returned from the mother to the father. Section 2 (5 (1) of the Act lays down that an order under s. 25 for the return of the custody of the minor child will only be made if the court is of the opinion that it is necessary for the welfare and interest of the minor. In Bai Tara vs. Mohanlal Lallubhai (l), a Division Bench of the Bombay High Court held that in an application by a father to obtain custody of his minor son, the only question to be considered is whether it will be in the interest and welfare of the minor to return to the custody of the father. In Gangarapu Chinna Sambayya vs. Polepalli Rudrappa (3), Beasley, Chief Justice with whom Cornish J. agreed observed as under: " In considering the question of the minor's welfare the question as to whether, or not the petition asking for the custody of the minor is bona-fide must be considered. If it is not bonafide that is a reason for not disturbing the custody of the minor. What has to be considered in all these cases is the failure on the part of the father or the person who is prima facie entitled to the custody of the minor to take steps over a long period to get custody of the minor. This of course bears on the question of bona fides. " (Itelic supplied ). In that case, the husband who did not treat the wife properly, was held to be not a desirable person to have the custody of the child.
(3.) S. K. Chbudhary vs. Sm. Satirani Chowdhary (3) was a case under s. 25 of the Act. In that case, the father applied under s. 25 for the custody of his minor boy of five years from the custody of the mother whom he had driven-out of the house four years back without caring to know how they were living or making any serious efforts to bring them back. It was held that in the circumstances of the case it would be to the welfare of the minor to remain with his mother and it would be against his welfare to turn him over to his father. The application was dismissed as not being bonafide. In Smt. Gangabai vs. Bherulal (4), it was observed by the learned Judge as follows:- " From this point of view, in case of conflict or dispute between the mother and the father about the custody of their children, the approach has to be somewhat different from that adopted by the Letters Patent, Bench of the High Court in that case. The father's fitness has to be considered determined and weighted predominantly in terms of the welfare of his minor child in the context of all the relevant circumstances that have been brought on the record. If the custody of the father cannot promote the welfare of minor equally or better than the custody of the mother, then, he cannot claim indefeasible right to the minor''s custody under sec. 25 merely because there is no defect in his capacity to look after the minor. " (Itelic is mine) R. S. Pathak C. J. (as he then was) in Gokal Nath vs. Smt. Krishna Devi (5), was of the opinion that where the father had failed to make any attempt to provide an allowance for maintenance and education of his minor children ever since his separation from their mother with whom they were living and did not even make any gestures of love and affection towards them and the financial resources of the mother were sufficient to ensure minor's proper maintenance and education, the mother and not the father who would be entitled to their custody. After discussing the relevant case law, a learned Judge of the Allahabad High Court in Smt. Ainunnisa vs. Mukhtar Ahmad (6), observed as under :- " Where a minor aged 10-11 years is in the custody of his mother and he has intelligently exercised his preference to continue to stay with her, his custody cannot be disturbed and given to his father though he is the legal guardian of the minor under the personal law (viz. , Mohammadan Law ). A mere claim to legal guardianship in such a situation will not stand on a higher footing than the claim of the real mother to continue to have the custody of the minor: who has remained in her custody or in the custody of her mother since the birth of the child " (Itelic supplied) In Rosy Jacob vs. Jacob (7), while considering the provisions of s. 25 of the Act, their Lordships observed as under : " In our opinion, Sec. 25 of the Guardians and Wards Act contemplates not only actual physical custody but also constructive custody of the guardian which term includes all categories of guardians. The object and purpose of this provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardian to properly look after the ward's health, maintenance and education, this section demands reasonably liberal interpretation so as to effectuate that object. Hyper-technicalities should not be allowed to deprive the guardian of the necessary assistance from the Court in effectively discharging his duties and obligations towards his ward so as to promote 'he latter's welfare. If the Court under the Divorce Act cannot make any order with respect to the custody of Ajit alias Andrew and Maya alias Mary and it is not open to the Court under the Guardians and Wards Act to appoint or declare guardian of the person of his children under Sec. 19 during his lifetime if the Court does not consider him unfit, then, the only provision to which the father can have resort for his children's custody is S. 25. . . . . . . . . . . . . . . . . . . . . . . . . . The Court's power under S. 25 of the Guardians and Wards Act is also, in our opinion, to be governed primarily by the consideration of the welfare of the minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom if ever-idantical. The contention that if the husband is not unfit to be the guardian of his minor children, then, the question of their welfare does not at all arise is to state the proposition a bit too broadly and may at times be somewhat misleading. It does not take full notice of the real core of the statutory purpose. In our opinion, the dominant consideration in making orders under 5. 25 is the welfare of the minor children and in considering this question due regard has of coarse to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor's welfare. " (Itelic supplied ). Here the authorities cited by Mr. Mehta may also be noticed. ;