MOHINI KAPUR, J. - (1.) THE appellant before me moved an application under Section 25 of the Guardian and Wards Act, before the learned District Judge. Jaipur, City, Jaipur, for custody of his two minor sons. This application was dismissed by the learned District Judge on September 10, 1981, hence this appeal.
(2.) BRIEFLY stated the facts are that the applicant was married to the opposite party in Jaipur on November 3, 1969. They lived together for some time but then his wife used to go-away to the parents house. During this period, two sons were born to them on 23. 8. 1972 and 5. 6. 1973. The applicant has not given the date on which his wife took away her sons permanently from his house but it appears that it was some-where in February, 1983 when his wife started living at her parents' house. Efforts of the appellant to bring his wife and children failed. According to the appellant, when the sons were living with him,they were studying in Nehru Memorial, School, Motinagar, but after they were taken away by their mother, their studies stopped and their future has become back. There are no facilities for studying at the house of the wife's father, where they are presently residing According to him welfare of the children is their staying with their father who will look after their studies and educate them. The opposite party replied that she was beaten by her husband and sent to her parent's house where she is living with her sons. According to her, both boys are studying in school and the name of the school as given by her is Roshan Academy School. According to her, the welfare of the children is in staying with their mother as the petitioner does not love his children but he has married another woman of different caste and has two children from that wife. The petitioner will not be able to give a proper atmosphere in that house to these children as they will be having a step-mother and step brother and sister The non-petitioner has submitted that she makes some income by stitching clothes etc. and from that income she is maintaining her children. According to her, the petitioner had married for the second time on 21. 4. 1976 and even after that, on the insistence of her husband she went to his house in June, 1980 and looked after her own children and those of the second wife who is a nurse in the K. B. I. Hospital but she was ill treated and again turned out. Learned District Judge, on the basis of the evidence submitted by both the parties, came to the conclusion that the petitioner appellant who is a driver, has married a nurse named Marium Joseph, from whom he has two children. Both of them are working and as such there is no person in the house of the petitioner, who could look after the two children about whose guardianship, this question has arisen. As the mother of the children is looking after them with love and affection and providing all facilities, she can be considered proper person to keep the children in her custody. The children gave out their desire that they wanted to stay with their mother. In this appeal, the main question to be considered is whether it would be in the interest and welfare of the children to send them to the custody of their father or let them remain with their mother, where they are living at present. In this case, I have myself called the two sons of the parties, in order to ascertain their wishes. At the out-set I, would like to mention that Mohd. Jaffer is said to have born in the year 1972 and Mohd. Anwar in the year 1973. Accordingly, their age would come to 13 and 12 years respectively but by appearance, they are very much under developed. On a guess, one cannot say that their age could be more than 10 and 7 years respectively. However, when there is no dispute about the age and they appear to be healthy otherwise, it can be said that their general growth is not that of an average child. The welfare of the minor is to be considered in deciding as to where they should stay. According to the learned counsel for the appellant, it is the father alone who should be entitled to the custody of the children, unless the father is not to be fit for their custody. In order to lay stress on the point that the welfare of the children is not in staying with their mother, it is contended that the children were attending a Public School, when they were staying with the appellant, but now their education has been stopped. They were in U. K. G and L. K. G classes, when they were with their father but now they are not going to any school. In order to meet this contention, the opposite party brought before me some certificates showing that the children were attending the school but it was not the same in which they were studying previously. It appears that even after a lapse of four or five years, the elder son is now in class II and the younger one is still in K. G. class, which shows that the education of the children is not going-on as smoothly and promptly as one should desire but at the same time it cannot be said that the children are not going to school whatsoever. However, neglect of the education of the children alone cannot be the factor in giving the custody of the children to the father because the father has already married another woman and has children from her. When the atmosphere in the father's house cannot provide the same love and affection which the children can get from their own mother, then it cannot be said that the father is entitled for the custody of two children.
(3.) I have myself talked to the children and they are quite happy with their mother. I have also questioned them about their education and it appears that they are attending school and learning something but are not as efficient as they should be according to their age. However, it would not be proper to send them at their father's house. In the case of Reginald Danieal v. Sarojam (1) it was held that consideration of welfare of minor comes into play only when father is found unfit for the custody of the child. But in the circumstances, when it was found that the father had discarded his wife and was living with his mistress, he was not found fit for the custody of the child of tender years. The circumstances in the present case do not justify the claim of the appellant that he is entitled to the custody of his two sons. ;