Norman Macleod, C.J.
1. The petitioner filed this application under the Guardians and Wards Act to be appointed guardian of the person of his minor son, who was living with his mother opponent No. 4 and his maternal grandfather opponent No. 5. I may point out at once that the application ought to have been dismissed, because such an application by a Hindu father under the Guardians and Wards Act, presumably under Section 19, is not competent, and a considerable amount of confusion has arisen in the course of the argument from neglecting to recognise that fact. The application should have been made under Section 25 of the Guardians and Wards Act because it is admitted that under Hindu law the father is the natural guardian of his minor son, and he can apply to the Court, if his ward loaves or is removed from his custody, for an order for the minor's return, and the Court will, if it is of opinion that it will be for the welfare of the ward to return to his guardian, make such an order.
2. The facts of this case make it perfectly clear that it is not to the interests of the minor that the Court should make such an order. Unfortunately there have been disagreements between the petitioner and his first wife, with the result that for some years she has been living separate with her father and has had the custody of the boy. The petitioner has married again, and it is obvious that the boy, who was only seven years old at the time this application was made, will be much better off living with his mother than with his father. No suggestion whatever has been made as to the character of the mother, which would be good ground for taking away the boy from her tender care and handing him over to the father who would be a perfect stranger to him. The step-mother cannot be expected to be very much interested in his welfare, and the uncles and any members of the prior generation who may be living in the house will also not be likely to give this small boy the attention and sympathy which he naturally requires.
3. Once it is recognised that the application should have been made under Section 25 of the Act, and not under Section 19, which has nothing whatever to do with the case, a decision can easily be arrived at. We have nothing to do with the question whether the father is unfit to be the guardian of the person of the minor. That would only be at issue if there was an application by another person to have a guardian appointed other than the father; and we have to accept the facts as we find them, that this small boy has been living with his mother for the last five years, and apparently the father has acquiesced in that. As my learned brother has pointed out, it is really a question what is the proper time for the father to make an application to the Court to obtain the custody of his son, and that question must depend entirely upon the further question when will it bo for the interests and welfare of the minor to return to the custody of his father.
4. We were referred to the case of Annie Besant v. Narayaniah : (1914)16BOMLR625 as being in favour of the respondents, but when that case is read, it will be found that it is entirely in favour of the appellant in this case. The father there had accepted an offer made by the defendant to take charge of hie two sons for educating them in England. He was dissatisfied later on with that arrangement, so he wanted to get back the custody of his children. Their Lordships said at p. 634:
The real question was whether he (the father) was still entitled bo exercise the functions of guardian and resume the custody of his sons and alter the scheme which had been formulated for their education...The real question was whether in the events which had happened the plaintiff was at liberty to revoke it (the authority given by the said letter.) Both questions fell to be determined having regard to the interests and welfare of the infants, bearing in mind, of course, their parentage and religion, and could only be decided by a Court exercising the jurisdiction of the Crown over infants, and in their presence.
5. Therefore treating it as an application under Section 25 of the Guardians and Wards Act asking the Court to direct the return of the boy to the father, I think myself it is distinctly to the interests and welfare of the boy to remain with his mother. That of course will not prevent the father from making a further application at any later date when he may be able to satisfy the Court that it will then be to the interests and welfare of the minor that he should leave his mother's care and live with his father. The appeal must be allowed and the application dismissed with costs throughout. The cross-objections are dismissed with costs.
6. I concur in the order proposed by the Chief Justice. I desire to add that this order is made on the footing that the application made to the District Court by the father is one under Section 25 of the Guardians and Wards Act for the custody of the minor. It is not necessary for the purposes of this appeal to decide the question as to whether a father can properly make an application under the Guardians and Wards Act to be formally appointed the guardian of his minor son. That was evidently not necessary in the present case; and though the application is in form for such an appointment, it is in substance an application for the custody of the minor and must be treated and disposed of as such. On that footing the only question is whether it is for the welfare of the minor that the existing custody of the mother should be disturbed. It is unfortunate that owing to the differences between the father and the mother it has become necessary to consider this question; and it is still possible that in future these differences may be made up and that the interests of the minor may be advanced by the cooperation of the father and the mother in that respect. But at present it seems to me fairly clear that it is not desirable for the welfare of the minor that the custody should be changed. The boy is of tender age and I think that at present the personal care of the mother is a paramount consideration. On that ground I agree that the present application of the father for the custody of his minor son should be dismissed.