1. The appellant in this appeal assails the order dated 7-9-1968 made by a learned Subordinate Judge 1st Class, Delhi, dismissing her application under Section 26 of the Hindu Marriage Act for the custody of her minor male child below five years of age, the application having been made in the course of the proceedings for judicial separation initiated by her under Section 10 of the said Act
2. The Court below has observed in the impugned order that there is nothing on the record to show that the father has nto been properly maintaining and keeping the child and that the bare affidavit filed by the wife is insufficient to establish the contrary. The Court emphasised the fact that when the child was brought to the Court and was questioned as to whether he was happy with his father, he replied in the affirmative, and from the face of the child, the Court gto the impression that he was quite happy with his father. The Court also asked the wife to go back to her husband at least for the sake of her child and after giving a trial, if she still felt that it was nto safe for her to live with her husband, she could come away from her husbands house and continue the present proceedings. The wife apparently did nto agree to this suggestion which also seems to an extent to have induced the Court to give the decision against her. Finally, the Court has observed mat the husband is living with his mother who can very well look after the minor child. The argument based on the age of the minor was disposed of by the Court below with the observations:--
'The mere fact that the child is only about 3 years old does nto mean the father cannto keep him in his custody. He is nto a suckling child,'
3. The approach of the learned Subordinate Judge is obviously wrong, being opposed to the settled legal position and he seems to have missed the real point which demands consideration in such cases. The Hindu Minority and Guardianship Act No. 32 of 1956, designed to amend and codify certain parts of the law relating to minority and guardianship among Hindus, which, in case of inconsistency, overrides all other laws, is otherwise supplemental to the Guardians and Wards Act No. 8 of 1890 and its provisions must prima facie govern the present case. Section 6 of this Act, which reads as under:--
6. 'Natural Guardians of a Hindu minor The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-
(a) in the case of a boy or an unmarried girl--the father, and after him, the mother; provided that the custody of a minor who has nto completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl--mother, and after her, the father;
(c) in the case of a married girl--the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) If he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanationn.--In this section, the expressions 'father' and 'mother' do nto include a step-father and a step-mother'
clearly provides that the custody of a minor, who has nto completed the age of five years, shall ordinarily be with the mother. The proviso to clause (a) takes the custody of a minor below the age of five years out of that otherwise normal rule of the father being the natural guardian of a boy and an unmarried girl in preference to the mother and is apparently inspired by the proverbial universally accepted superiority of the natural mother's instinctive selfless love and affection for her children, particularly infants. The maternal care and affection, it is unnecessary to emphasise, is generally considered to be indispensable for the healthy growth of the infant children. The selfless interest of the natural mother in the welfare of her children and of her infant offspring in particular, is, by and large, found to be a part of her nature and this instinct is nto confined to human race alone.
This proviso seems to us to have been completely overlooked by the Court below. Unless there were special circumstances sug-esting that the welfare of the minor emanded that his custody should nto be entrusted to his natural mother, the Court below was nto justified in depriving her of the minor childs custody and in entrusting it to the father. Section 13 of the Hindu Minority and Guardianship Act, it may be remembered, lays down in clear terms that the welfare of the minor is to be considered by the Courts in such matters to be the paramount consideration. Even in cases where the father is declared to be the natural guardian of his minor child, the father's right to the minor's custody is nto indefeasible or absolute and it has to yield to the consideration of the minor's welfare. This legal position is now beyond question and must always be borne in mind by the Courts when dealing with controversies touching minor's custody. The position of the Courts, it may be pointed out, being of quasi-tutelage, they have a special responsibility in seeing that the welfare of the minor does nto suffer.
All provisions of law pertaining to the appointment of guardians of minors and to their custody, whether contained in the Hindu Minority and Guardianship Act or in the Guardians and Wards Act, both of which Acts have to be read together, as provided by Section 2 of the former, seem to be rooted in the , felt by the society and the Legislature primarily to ensure the minor's welfare. The priority of claims of the persons who are described to be the natural guardians of minors, also seems to have been fixed in the light of this consideration which dominates all other aspects. It is nto so much the right of the father or the mother as the welfare of the minor which has presumably induced the Parliament in enacting this provision, and the Court must, thereforee, be guided by this consideration in its judicial thinking and in its ultimate conclusion. This Court and the Punjab High Court have dealt with this question in more decisions than one and the Court below would be well advised to keep itself informed to those decisions.
4- Turning to the case on hand, the child under five years of age, in our opinion, needs most the tender affection, the caressing hand and the company of his natural mother and neither the father nor his female relations, however close, well-meaning and affectionate towards the minor, can appropriately serve as a proper substitute for the minors natural mother. It may also be become in mind that physical needs and comforts alone are nto enough for the proper healthy development of a human child. Parental affection is indispensable for this purpose and in the case of a conflict between father and mother, when the child is under five years of age, the mother has been rightly endowed with a preferential claim in regard to the child's custody. This is consistent with the rule of nature and, in normal circumstances, deserves to be noticed and acted upon. The Court below obviously seems to have erred in nto taking into account this important factor. To think, as the lower Court has done, that the child nto being a suckling child, the father can keep him in his custody and on this reasoning to deprive the mother of the minor child's custody, who is only three years old, is in our opinion, an incorrect approach which is nto supportable on the legal position or to the existing material on this record.
The Court below also seems to have erred in allowing its judgment to be influenced by the expression on the face of the child observed by the Court when he was produced by his father and by the child's reply that he was happy in his father's custody. We consider it proper in this connection to point out that it is only an intelligent preference by the minor, who is capable both of forming and expressing such preference, which is recognised as a relevant factor to be taken into account by the Courts. The ultimate responsibility, it must never be forgotten, is that of the Courts to judicially consider which way the welfare of the minor lies, for such welfare is the primary and dominant consideration in determining the question of the minor's custody. In the case in hand, we are far from satisfied that the minor who is less than five years old is capable of forming any intelligent preference and expressing it.
It is important to bear in mind that the minor has been living with the father and he was apparently brought to the Court for the purpose of influencing the Presiding Officer with the suggestion that he was very happy in his fathers custody. It does nto need any elaborate discussion to show that in such a situation what the child may have said in Court and the happy expression on his face cannto reflect his intelligent preference and can by no means serve as a safe basis for a judicial conclusion, It is also significant that the minor was nto asked if he would like to live with his mother. On a consideration of all the facts and circumstances of this case, in view of the foregoing discussion, we have little hesitation in reversing the order of the Court below and in granting the appellant's prayer for the custody of her minor child and we hereby order accordingly. As the dispute is between the husband and the wife and we are anxious to see that their differences and misunderstandings are removed, we consider it proper to direct the parties to bear their own costs both here and in the Court below.
5. Before concluding, we consider it proper to emphasise and impress upon both the spouses the desirability of making serious efforts to adjust their mutual differences and misunderstandings, if for no other reason, at least for the sake of their offspring, in whose welfare they both must be considered to be equally interested. The normal wear and tear of married life can be made smooth only by adopting the policy of give and take. Every human being, generally speaking, possesses both good and bad points and a reasonably practical member of a civilized society should, in his own interest, try to look for the good points in others and minimise what he considers to be their weaker side. This is all the more necessary in modern life which is full of stresses and strains. The Court below has a duty to attempt to bring about reconciliation between the spouses in proceedings like the present, but in its zeal to do so, the Court must nto outstep the bounds of law and should take care that the orders made by it are in conformity with the legal position.
6. The parties are directed to appear in the Court below on 18-2-1969 when a short date would be given for further proceedings in accordance with law. The custody of the minor child should be handed over to the mother without undue delay.
7. Appeal allowed.