M.L. Jain, J.
(1) MST. Poornima is a widow. She has two children, a daughter Monika born on 9-11-1974 and a son Munish born on 3-9-1978. Her husband died on 7-5-1978. She alleged that after the death of the husband, she was maltreated and harassed and forced to do all kinds of job as a maid
(2) The appeal was filed on 22-10-1982 without the certified copy of the impugned order, but with an application for exemption from filing a certified copy of the impugned order. It was directed on 31-1-1983 that the certified copy be filed within limitation. An application for certified copy was moved on 20-9-1982. Copy was ready on 27-1-1983. But it was taken and filed on 20-8-1983 along with an application for condensation of delay. After excluding the period of limitation and the time taken in obtaining the copy of the total delay is of about lour months. The delay in obtaining and filing the copy was caused on account of laches on the part of their previous counsel and the appellants being illiterates did not know what exactly was to be done. They should not be penalised in a lawyer-oriented system of justice, for the fault of their previous counsel. I think the appellants have shown sufficient cause within the meaning of Section 5 of the Limitation Act and the aforesaid delay is hereby condoned.
(3) As to merits, the law is that the mother on the death of the father is the natural guardian of the children and is entitled to their custody unless the court comes to the conclusion that it is in the interests and welfare of the children that she be deprived of such guardianship and custody. As reiterated in 'Smt. Nirmal Jain v. State 1983 Drj 152 : 1983 Rlr 130, the welfare of the minor is not to be measured by money or by physical comfort only. There are also other consideration as well such as age, sex and religion of the minor, the relationship, character and capacity of the proposed guardian, wishes of the minor if capable of making an intelligent preference. The claim of the lawful guardian cannot be ignored except on good grounds. Have then the grand-parents made out a case so as to defeat the claim of the mother
(4) The learned counsel for the appellants submitted that it was the grandmother who has brought up the children because they were left when they were just a few years old. After leaving the matrimonial home, the mother remained silent for 2 years and she applied for custody too late to be bona fide. The grand pare its have not applied for the guardianship of the children. They are only interested in retaining the custody. I have called the children and talked to them by themselves and also in the presence of the grand-parents and the mother separately. They told that they would like to continue to live with their grand-parents. They did not even know who their mother was. But the mother says that she was turned out and was not even allowed to see the kinds. The considerations urged against her do not seem to be strong enough to deprive her of the custody because the children can be better looked after by the mother. The grand-father of the children is not even in proper employment. They are supported by their son earning Rs. 500.00 p.m., while the financial position of the mother is better. She has a fixed deposit of Rs. 10,000.00 and is earning a salary of Rs. 400.00 per month. She is educated and is living with her parents. It appears to me, thereforee, to be in the interests of the minors that the mother gets the custody of the children. No doubt, this will be heart-rending for the grand-parents to part with the children and so will it be for the children. But emotional attachment must yield to welfare. Their allegation that she used to beat the Children mercilessly is not well founded. They have also alleged that the father of the petitioner is a sickly man. They are eleven members out of the whom only one is doing some work as a tailor and is able to earn only Rs. 150.00 p.m., but the learned District Judge after considering all the material on record was of the view that the minor's welfare lay in the hands of the mother and I find no strong reason to disturb the order made by the learned District Judge. She has no doubt sought the assistance of the court very late but that does not by itself defeat her right.)
(5) [THE children of impressionable age need the affection and care of both the parents except where one of both of them are devoid of affection. thereforee, in cases where the court assigns custody to one of the parents, it should see who will be the substitute of the other parent. In virtue of the impugned order, the children will have the mother and I presume she is motivated by affection and not by a sheer desire to assert her legal right, who will then provide the father substitute? I think, the parental grandfather can fill that role better may be maternal grandfather. I would, thereforee, like to have some arrangement made under which the children are able to visit their grand-parents time and again. That will also heal the injured emotions of the grand-parents and the children consequent upon the change of custody]
(6) I thereforee, dismiss this appeal. There shall be no costs. The learned court below shall devise some suitable and satisfactory arrangements in accordance with my observations before implementing its order.