S.K.MAL LODHA, J. - (1.) THIS is an appeal by mother of' the minor Om Prakash under Section 47 of the Guardian and Wards Act (No. viii of 1890) (for short 'the Act') against the order dated September 4, 1979 of the District Judge, Jodhpur by which he accepted the father's petition Under Section 25 of the Act.
(2.) THE respondent will hereinafter be referred to as the petitioner and the appellant as the non -petitioner. The petitioner was married with the non -petitioner and out of this wedlock a son was born on December 1, 1969. The relations between the petitioner and the non -petitioner became strained when the son Om Prakash was of less than 5 years of age. According to the petitioner, the non -petitioner left the matrimonial home on September 10, 1974 along with the minor son Om Prakash. A notice is said to have been issued on March 24, 1976, by the petitioner for handing over the custody of the minor son Om Prakash but that notice was refused by the non -petitioner. The petitioner filed the petition on May 1, 1976 under Section 25 of the Act praying therein that the custody of minor Om Prakash may be returned to him as at the time of the filing of the petition, he was in the custody of the non -petitioner. The petition was contested by the non -petitioner on various grounds by filing reply on November 12, 1976. On January 31, 1977, the learned District Judge records that points for determination are not necessary. The petitioner examined himself as PW 1 and PW 2 Chhailaram in support of his petition In rebuttal, non -petitioner examined herself as DW 1. The learned District Judge accepted the petition by his order dated September 4, 1979 and ordered that custody of minor Om Prakash be delivered to the petitioner within 10 days from the date of the order, failing which a warrant, as provided under Section 25 of the Act, be issued. Feeling dissatisfied with the aforesaid order of the learned District Judge, the non -petitioner has filed this appeal.
(3.) I have heard Mr. S.S. Purohit for the appellant and Mr, M.L. Kala for the respondent and have carefully perused the record of the case. Mr. S.S. Purohit learned Counsel for the appellant contended that the finding of the learned District Judge that it is in the welfare of the minor Om Prakash to order return of his custody to the petitioner, is erroneous. Mr. Kala has supported the order under appeal.;