I.D. Dua, C.J.
(1) This appeal has been presented from the older of the learned Guardian Judge, Delhi, dated 8th 'November, 1966 allowing the petition of Sohan Lal (respondent before me under section 25 of the Guardian and Wards Act for delivery of the custody of two minor children. The application was presented against Smt. Ram Piari, wife of Sohan Lal, and mtoher of the two minor children. The application was opposed by the mtoher of the children and on the pleadings the only issue framed and tried by the Court below was whether the appellant was entitled to the custody of the minors. The learned Guardian Judge was influenced by the fact that under Hindu law, father is the natural guardian of the minor children and that in the case in hand, the minors were nto of such tender age as to require constant attendance from the mtoher. On this view, the learned Judge found no reason why the natural guardian should nto be allowed custody of his miner children. While- narrating the facts, the Court also observed that Smt. Eam Piari had applied for maintenance, under section 488, Criminal Procedure Code, which was dismissed and her allegations that she had been maltreated and turned out by her husband were nto upheld. Maintenance for the children was, however, allowed. The Court below vaguely referred to two judicial proceedings in which it had been obsqved that Smt. ham Piari had left the house of her husband and alter having lived with him for 18 years and this, according to the learned Juge. could nto afford conducive atmosphere for the minors to live with their mtoher. From this also the conclusion was drawn that the welfare of the minors required that they should live with their father. In so far as the allegation that Sohan Lal was a gambler and a drunkard is concerned, the Court observed that the four witnesses examined in this behalf could nto depose anything from their own knowledge that they saw the petitioner gambling or taking liquor. It was, thereforee, considered to be hearsay and, accordingly nto entitled to much weight. It was substantially on this view.that an order was made granting custody oi the minor children to Sohan JLal.
(2) On appeal, the learned counsel for the appellant .has submitted that the learned Guardian Judge has taken a somewhat superficial view, buth of facts and of , Merely because the father is the natural guardian of the minor, he cannto, so submits the counsel, be held entitled conclusively to the custody of the .minor children The Court below should have considered the welfare of the minors to be the paramount consirderation and should also have given due weight to the. wishes of the minor children as they were intelligent enough to express their own likings and inclinations. The submission is nto without merit. In regard to the allegation of the husband indulging in gambling or taking liquor, again, the approach of the learned Judge does nto seem to be faultless. Normally people do nto come forward and profess to be gamblers or that being in the company of gamblers, they were witnesses to an individua.l indulging in gambling, nor would a witness come and depose that he himself is a drunkard and has been drinking along with antoher individual. Such evidence would perhaps be open to adverse criticism that the testimony of a person who is himself a gambler and a drunkard should nto inspire much confidence. In a case like the present, evidently, the wife is the best person to inform the Court as to whether or nto her husband has been indulging in such vices as drinking and gambling and her statement should nto be unceremoniously and arbitrarily brushed aside, but should be considered judiciously on its merits. If the Court on a consideration of all the relevant attending circumstanc's considers it to be untrustworthy or tainted with some suspicion of falsehood it should be rejected, but if it is free from such infirmities, it deserves to be given due weight. And then, where a woman has stayed for nearly 115 years with her husband without any blemish and has also borne children to him, unless there is some convincing reason to discredit her deposition, one should net lightly discard her sworn testimony in this regard. Mtoive for telling lies should be suggested which would appeal to the Court. But be that as it may, in this case, it 15 unnecessary to go into the allegation of Sohan Lal being given to gambling or to drinking and I propose to decide the case on toher grounds.
(3) The application was made in the Guardiou Court by Sohan Lal on 25th July, 1964 under section 25 of the Guardians and Wards Act and it was pleaded that Smt. Ram Piari had left the house of her husband without any reasonable cause and after a few days, had also taken away the minor children. Section 25 of the Guardians and Wards Act, so far as relevant for our present purpose, provides that: -
'IFa ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the Welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.'
It would be helpful to read section 17 of this Act as well : '17. (1) la 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.' I consider it desirable at this stage also to reproduce section 13 of the Hindu Minority and Guardianship Act No. 32 of 1956 which was enforced in August, 1956 :- '13. (1) In the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will nto be for the welfare of the minor.' The provisions of this Act are stated to be in addition to and nto in derogation of the Guardians and Wards Act, except where there is an express provision to that effect. By virtue of section 5, this Act has an overriding effect over the provisions of Hindu Law and or any custom or usage as part of that law. Further, any toher law inconsistent with the provisions of the Hindu Minority and Guardianship Act, must cease to have effect to the extent of inconsistency. I had occasion to deal with the question of the right of a father as natural guardian to the custody of the minor child in Harbans Singh v. Vidya Wanti, and following an earliar decision by Bishan Narain, J, in Smt. Maya Devi v. Amolak Ram, I took the view that the right of a father as a natural guardian to the custody of his minor child is nto an indefeasible right in law, if the exercise of such a right is nto in the minor's welfare and that an order under section 25 of the Gurdians and Wards Act is really meant to prtoect the minor's welfare which is the primary consideration in deciding whether or nto the custody of the minor should be rested to the father. Such a matter has to be decided on practical and humanitarian and nto on sanctimonious grounds. In Capt. Rattan Amol Singh v. Kamaljil Kaur, again the welfare of the minor was considered to be a weighty factor in considering as to in whose custody the minor should be allowed to remain. By virtue of section 2 of the Hindu Minority and Guardianship Act, the provisions of the Guardian and Wards Act and of the Hindu Minority and Guardianship Act require to be read together so that they may be harmonised- Section 30 of the Hindu Minority and Guardianship Act was thus held to intend to relax to a great extent the rigour of section 19(b) of the Guardians and Wards Act in the interest of the minor's welfare. I may reproduce what I said on that occasion :- 'The Court must construe the provisions of the Guardians and Wards Act and of the Hindu Minority and Guardianship Act together, because they constitute parts of a single scheme or the same legislative plan; their provisions must, thereforee, be harmonised and read together so that the real and true purpose and equity of the basic principles underlying the subject-matter of the legislative scheme or plan are effectively carried out. Reading the relevant sections of these two statutes, together, in my opinion, the benefit of the minor is the dominant and paramount consideration and, if the circumstances so warrant, the father's prayer under section 25 of the Guardians and Wards Act can legitimately be disallowed in the ' better interests of the minor's welfare. The father's right to the custody of his minor child is nto absolute ; nor is it indefeasible in law: it is circumscribed by the considerations of the benefit and welfare of the minor.' This decision is also an authority for the view that orders like the present are generally tentative and are liable to modification with the change of circumstances.
(4) On behalf of the appellant, my attention has also been drawn to Dakshayani v. Brahmayya, in which Mack, J. described it to be a salutary practice for a Judge sitting on the Guardians and Wards side to exemine all minors and interrogate them before directing their return or being handed ever to any custody, even, that of the legal guardian. Circumstances, according to the learned Judge, may justify a refusal to hand over a minor even to the custody of a prima facie legal guardian, the interests of the minor being the paramount consideration. In Samuel v. Stella, Ramaswami.J. also observed that in deciding the question of custody, the welfare of the minor is the paramount consideration and the fact that the father is the natural guardian, would nto pso factor entitle him to custody. The learned Judge added that where the minor is old enough to make an intelligent preference, the wishes of the minor should be considered by the Court. Though this could nto be conclusive on the matter, nevertheless this matter deserved to be taken into account in arriving at the conclusion. The pieference expressed by the minor should is, however, nto be considered Unless it is also intelligent. This decision was approved and followed by Khanna, J. in Smt. Hardeep Kaur v. Shri Joginder Singh'. when a minor boy more than 10 years old was allowed to remain with his mtoher as against the father who had applied for his custody under section 25 of the Gurdians and Wards Act.
(5) In my opinion, a father applying under section 25 of the Guardians and Wards Act for the custody of the minor children, as against their real mtoher, is nto ipso facto and as a matter of course or right entitled to an order in his favor irrespective of the consideration of their welfare. The approach in an application under section 25 of the above Act, as is explicit from the statutory language, is to see if the welfare of the minor requires his return to the custody of the applicant. The Court which in the final analysis in the position of quasi-tutelage, while dealing with a minor, has a special responsibility and has, thereforee, anxiously to look to the welfare of the minor in question as a paramount and dominant consideration. The rule that a father has gto the naural right to the custody of his children is nto a rigid and inflexible rule and must give way when the minor's welfare demands toherwise. The right of the father, as indeed of every parent, as such, is of secondary importance which must yield to the first and primary interest of the minor's welfare. In considering this aspect, the intelligent preference of the minor, if capable of forming and expressing if has been recognised by the statute as a relevant factor, for, it has to be remembered in this connection that in a modern civilised society, the children are nto to be treated as mere chattles, serving only to satisfy the pleasures either of the father or of the mtoher. Indeed, the entire law on the subject of custody of miners is inspired by the consideration of their welfare and in the interests of the future of the society. With the emancipation of women in Indian society under the egalitarian set-up, the argument of general incompetency of women to the custody of their minor children as against their husbands, has ceased to retain its old universal cogency.
(6) In the present case, admittedly, the girl is about 15 years old and the son about 9. The girl is approaching the age of adolescence and ntohing has been said at the bar that there is anyone to look after her best interest as well or nearly as well as her own mtoher can. buth the minor children v ere produced in Court on 21st September, 1966 and the learned Gurdian Judge observed as follows :- 'Shri Khem Chand and Kumari Mahadevi minors have been produced today. They have been put questions by me. Shri Khem Chand has given his age as 9 years. According to him, he has been recently gto admitted into Municipal School at Sohan Ganj. He is studying in the first primary class. He is nto acquainted with the applicant. He wants to remain with his mtoher-respondent and does nto want to go to the applicant. The mtoher.respondent maintains him well. Kumari Mahadevi has given her age as 15 years. According to her, she studies in a Municipal School in Chandrawal in Iii Class. She does nto know the applicant. The mtoher-respondent maintains her well. She wants to remain with the mtoher-respondent and nto wi,th the applicant'. If is some what unfortunate that the learned Guardian Judge in his order did nto care even to ntoice the preference given by the children and has completely ignored.it, thereby creating an impression as if this factor is irrelevant. The learned Judge has of course nto expressed his opinion that these two children are nto capable of giving their preference intelligently.
(7) Shri Sohan Lal appearing as A. W. 5 has stated that there were four, children.born from this wedlock. Out of them two are alive, their ages as given above having been admitted. Smt Ram Piari, as elicited from his cross-examination, is his third wife, the first wife having died and the second being still. alive. He has denied having paid any maintenance allowance to the second wife. From this evidence, it is nto clear it there is any woman in his house who would be able to properly look after the 15 years old daughter who is approaching the age of adolescence. Smt. Ram Piari has appeared as R W. 5 and she has deposed that her husband is addicted to gambling and drinking .and has also been maltreating her and the minor children. He has 'according to her, failed even to provide for their maintenance and 'education. She has sworn to have actually been maintaining herself and, her minor children by doing labour. On 3rd September, 1966, Shri',Sohan Lal admitted in the Court below that the two minor children had since the filing of the present application been gto admitted in the Municipal Corporation schools.
(8) The order of the learned Guardian Judge is, in my opinion, difficult to sustain. buth the children are admittedly studying in schools and they have expressed their preference to remain with their real mtoher. The daughter who has approached the age of adolescence should remain with her leal mtoher and the son's welfare also seems to demand that he lives with his elder sister and mtoher. There is ntohing to suggest that the minors are net grown up enough to be able to express their preference intelligently and ntohing is traceable on the record, and indeed ntohing has been suggested at. the bar which would go against the desirability of their real intoher being continued to be entrusted with their care and custody. It is obvious that they are far more attached with their mtoher from whom they get their due share of the irreplaceable maternal care, love and affection than they are to their father whom they old nto even recognise. These aspects have evidently been ignored by the Court below and undue importance has been attached in the impugned order to the fact that the father is seeking the custody of his minor children. This is quite clearly an incorrect view on the facts and circumstances of this case. There seems to me to be no cogent ground for disturbing the present custody of the mtoher and I am of the considered opinion that the welfare of the minors demands that the staus quo should continue. It has to be remembered that orders relating to the custody of minors like the .present are tentative and with the material change in the circumstances, the Gaurdian Court can always be moved for modification or variation of the orders to promtoe the minors' welfare. If the lather is genuinely interested in the welfare of his children and is nto over-obsessed with the idea of either spiting his wife or of exhibiting his paternal right and power at the cost of the welfare and happiness of his children, then he would be well advised to win the affection of his children and if he sodesiies, also of his wife by willingly and ungrudgingly contilbuting towards their maintenance, If he does so, I have little doubt that odds are in favor of the family again living happily together.
(9) For all the foregoing reasons, this appeal succeeds and allowing the same I set a aside the impugned order appealed from and dismiss Sohan Lal's application. Since this litigation arises out of a domestic controversy between husband and wife which controversies are nto uncommon there would be no order as to costs. It is earnestly hoped that the parties would try to adjust their differences, atleast for the sake of their children and make a serious attempt to get united and again live like a happy family.