S.C. Mathur, J.
1. These two first appeals have arisen from proceedings under the Guardians and Wards Act, 1890. F.A.F.O. No. 131 of 1983 arises from the application made by appellant Salamat Ali under Section 7 of the Act while F.A.F.O. No. 130 arises from an application made by the respondent Smt. Majjo Begum under Section 25 of the Act. The dispute in both the applications pertained to minor Afaq Alam who is the grandson of Salamat Ali, and son of Smt. Majjo Begum. The age of the minor is about four years. In this application under Section 7 appellant Salamat Ali prayed for being appointed guardian of the person and property of the minor while in her application Smt. Majjo Begum claimed custody of the minor who is admittedly staying with appellant Salamat AH.
2. In the application made by Smt. Majjo Begum, Salamat Ali filed a detailed written statement. Through this written statement he made serious allegations against Smt. Majjo Begum on the basis of which he contended that she was not a fit person to have the custody of the minor. On the facts stated by him it was sought to be contended that the welfare of the minor would be jeopardised if he was placed in the custody of Majjo Begum. The learned district Judge, on a consideration of the personal law by which the parties weregoverned, came to the conclusion that since the age of the minor was less than seven years, Majjo Begum was entitled to the custody of the minor. He did not afford opportunity to the parties to lead evidence on the question of welfare of the minor. This order has been assailed by the learned counsel for Salamat AH. He has submitted that the order of the learned district Judge is violative of Section 13 of the Act whereunder it was incumbent upon the learned district Judge of fix a date and give opportunity to the parties to adduce evidence on their respective pleas. The learned counsel submitted that the personal law is to be applied consistently with the provisions of the Guardians and Wards Act, 1890. According to the submission of the learned counsel, in view of the provisions contained in the Guardians and Wards Act the welfare of the minor was of paramount importance and the Court below committed manifest error when it did not allow the appellant an opportunity to show that the welfare of the minor lay in his staying with the grandfather than in staying with his mother.
3. The above submissions of 'the learned counsel for Salamat Ali have been controverted by Sri S. Mirza learned counsel for Smt. Majjo Begum. According to the learned counsel the minor was of such a tender age that it could be safely presumed that his welfare lay in staying with his mother. In support of his submission that opportunity for oral evidence was not required to be given in every case, learned counsel relied upon :
(1) Saraswatibai Shripad Ved v. Shripad Vasarji Ved, AIR 1941 Bom 103; (2) Mule v. Mt. Dropadi, AIR 1952 Madh Bha 93; (3) Raman Konderan v. Ayyappan Panchali : AIR1959Ker396 ;. (4) Hafizur Rahman v. Smt. Shakila Khatoon, 1983 All CJ 356 and (5) Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor : AIR1982SC792 .
4. As against the above decisions the learned counsel for the appellant Salamat Ali placed reliance upon
(1) Antu Mahaton v. Ramraj Singh : AIR1957Pat720 ;
(2) Mulukh Raj Sharma v. Dhanabanta Debi : AIR1957Cal322 ;
(3) Mohammad Shafi v. Shamin Banoo : AIR1979Bom156 and (4) Shailendra Kumar Goyil v. Smt. Pramila Goyil, 1983 All LJ 1039,
He also placed before me the written statement which has been filed by appellant Salamat Ali. In this written statement Salamat Ali tried to show that from the very beginning the respondent Majjo Begum did not have a good Character and that within one month of the death of her husband she left the house of her in-laws without taking with her the minor Afaq Alam. It is stated that she left Afaq Alam in the house of her in-laws saying that he was a thorn in her life. It was pointed out that Smt. Majjo Begum filed the application under Section 25 only after appellant Salamat Ali had filed application under Section 7. From the record it appears that Salamat Ali filed the application on 11-5-1983 while Majjo Begum filed the application on 2-6-1983.
5. Section 13 of the Act provides as follows : --
'On the day fixed for the hearing of the application or as soon afterwards as may be, the Court shall hear such evidence as may be adduced in support of or in opposition to the application.'
Section 17 reads as follows : --
'17(1) In appointing or declaring the guardian of a minor, the Court ' shall subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference..........'.
Under the above provision the welfare of the minor is of paramount importance. The law to which the minor is subject is taken into account for the purpose ofdetermining the welfare of the minor as is apparent from the use of the words 'consistently with the law to which the minor is subject, appears in , the circumstances to be for the welfare of the minor.' It is true that the age of the minor is also a relevant factor to be taken into consideration. In the present case the minor is indeed very young but if his mother considers him a thorn in her life it may not be in the interest of the minor to place him in her custody. In the circumstances I am of the opinion that this was not a case in which without recording evidence on material factual controversies, appointment of guardian could be made by the Court below. Of course if there is nothing material to be pointed out on behalf of the person opposing the application for appointment of guardian, it may be said that fixing a date for evidence would be a useless formality and in that event the Court may not be insisted upon to fix formally a date for oral evidence. The present is, however, not such a case.
6. In Antu Mahton's case : AIR1957Pat720 (supra) it was observed in paragraph 4 of the judgment as follows : --
'It is undisputed that the proceedings under the provisions of the Act cannot be disposed of summarily. ............UnderSection 13 of the Act on the day fixed for the hearing of the application, or as soon afterwards as may be, the Court shall hear such evidence as may be adduced in support of or in opposition to the application. It appears from the order-sheet of the 28th of July, 1954, itself that the petitioner was prepared to adduce evidence. The learned Addl. District Judge has, therefore, committed a material irregularity in the exercise of his jurisdiction in summarily dismissing the application made by the petitioner.'
In Mohammad Shafi's case : AIR1979Bom156 (supra) it was observed by their Lordships of the Bombay High Court as follows (at p. 161) : --
'As contemplated by Section 13, evidence has, to be led in support of the application, in other words, in order to establish the facts alleged in the application. As to in what manner the fact can be established is properly laid down by the Evidence Act,But the Evidence Act, by itself is not applicable to affidavits............'
In Shailendra Kumar Govil's case (1983 All LJ 1039) (supra) it was held by Deoki Nandan, J., that Section 13 postulates that the District Judge must hear evidence before passing orders on a petition under Section 7. It was further observed that it follows, therefore, that if no evidence is adduced in support of the petition, the Court could not pass an order allowing the petition. This authority also supports the view that I have taken.
Hafizur Rahman's case (1983 All CJ 356)(supra) has no application to the facts ofthe present case. That was not a casedealing with the requirements of section 13 of the Act. That decision only laysdown that in an application under Section 25 ofthe Act the age and sex of the minor arealso important factors to be consideredand that divorce alone would not disentitlethe mother to the custody of her son who isless than seven years in age. From thereport it appears that the grandfather'splea that the mother had abandoned thechild was not accepted by the Court belowand, therefore, in view of the fact that theminor was less than seven years of age andthere was nothing to disqualify the motherfrom the custody of the child, the custodywas delivered to the mother. In this casethe trial Court had afforded opportunity tothe parties to adduce evidence, andthereafter the order of custody was passedwhich was upheld by the Division Bench ofthis Court.
7. On a consideration of the authorities, the legal position appears to be that where under the personal law the mother is entitled, to the custody of a minor child, she should normally get the custody of the minor but she may be deprived of the custody if the evidence on record shows that it would not be in the interest of the minor to give the minor in the custody of the mother. Thus, the provisions of the personal law are to be applied consistently with the provisions of the Guardians and Wards Act. The welfare of the minor can be determined only on the basis of evidence for which opportunity will have to be afforded to the party seeking it. This opportunity in the present case was not afforded to the applicant who wanted to show that Majjo Begum had abandoned the minor and had, therefore, forfeited the right of custody available to her under the personal law.
8. Saraswatibai Shripad Ved'(AIR 1941 Bom 103), Mule (AIR 1952 Madh Bha 93), Raman Konderan : AIR1959Ker396 and Dr. (Mrs) Veena Kapoor : AIR1982SC792 (Supra) cited by Sri Mirza have no application to the facts of the present case. None of these cases deals with Section 13 of the Act. On the other hand in these cases also it has been emphasised that the prime consideration is the minor's welfare. In Dr. Mrs. Veena Kapoor's case the minor aged 1 1/2 years was living with the father and their Lordships did not allow custody to the mother merely on the ground of age but called for report from the District Judge on the question 'as to whether the custody of the child should be handed over to the petitioner-mother, taking into consideration the interest of the minor.' The District Judge was directed to give liberty to the parties to adduce evidence on the question in issue.
9. Although not directly in point, this authority also supports the view that if there are factual controversies and they have a bearing on the question of welfare of the minor, the parties should be given opportunity to lead evidence.
10. In view of the above the two appeals have to be allowed. The appeals are accordingly allowed, and the judgment and order of the learned District Judge is hereby set aside and . the cases are remanded to the trial Court for disposal of the two applications in accordance with 'law after giving the parties opportunity to adduce evidence. Costs of these appeals shall be easy.
11. After the above judgment had been pronounced Sri Shafiq Mirza learned counsel for the respondent prayed that a date may be fixed for the appearance of the parties before the Court below so that the matter may be disposed of expeditiously. The parties shall appear before the Court below on 20th July, 1984.