M.L. Jain, J.
(1) This is a revision against the order of the learned Guardian Judge dated 2-6-1983.
(2) The parties were married on 6-6-1974. The husband had four brothers. Their father owned a house No. H-83, Ndsc Part I, New Delhi. He also owned a building in Greater Kailash, which stands leased out to Hong Kong Restaurant. The house was sold, but the brothers were living in the same house as tenants. The husband Fateh Bahadur was living in the back portion of the ground floor which comprised only one room and some tin-sheds. One brother was living in the front portion and another was living in the second floor. One brother is in U.S.A. The couple had two children out of the wedlock, one daughter and one son. Both are of the ages of more than five years. The husband also owned some land which he sold and went to U.S.A. on 9-10-1981. It is alleged that he developed intimacy with some girl there in U.S.A. Before going to U.S.A., the husband gave a power of attorney on 24-9-1981 in favor of his wife to do all acts in connection with the management of the property in Greater Kailash, to collect and receive any money due to him from anybody and issue receipt thereof. The wife applied for a divorce on 16-4-1982 and obtained an ex parte decree of divorce on 17-5-1982. In September, 1982 she gave away the premises in her occupation to one Sudhir Gupta for the use of residence and co
(3) The wife left for Canada on 23-9-1982 and remained there till 4-12-1982. She had left the kids with her aged parents at Jullunder, where the is supposed to have put them in some school. The children were then handed over to the sister of the wife Smt. Raj Mohinder Kalia. When the husband returned to India on 4-1 1-1982, Raj Mohinder Kalia handed over the custody of the children to the husband.
(4) On 13-12-1982 the husband moved a petition under Section 25 of the Guardian and Wards Act, 1890 read with Section 6 of the Hindu Minority and Guardianship Act, 1956. The wife made a criminal complaint against the husband that after her return from abroad on 4-12-1982, the children came to live with her but the husband kidnapped them on 10-12-1982. A search warrant under Section 97 Cr.P.G. was issued. The children were recovered from the custody of the husband on the night between 29th and 30th December, 1982. After hearing the husband, the learned Magistrate on 5-1-1983 allowed him to keep the minors in his custody. The wife also filed a petition under Section 25 of the Guardian and Wards Act, 1890 read with Section 6 of the Hindu Minority and Guardianship Act, 1956. Both the petitions are before the Guardian Judge.
(5) The wife moved an application under Section 151 Civil Procedure Code for interim custody of the children. The learned Guardian Judge by the aforesaid order directed that the father shall deliver the interim custody of the children to the mother till the disposal of the main petitions. He further directed that the children shall not be removed out of India. The latter portion of the direction seems to have been made because the father made a request to the court that he will have to take the children to U.S.A. temporarily to meet his relatives. It was further directed that the mother shall produce the children in court on every hearing so that the father can meet them.
(6) The learned Judge was of the view that the father was addicted to liquor and gambling and was even convicted in November, 1980 in a case under the Gambling Act and was sentenced to fine of Rs. 120.00 and imprisonment till rising of the court. The husband did not care to move to have the ex parte decree of divorce set aside. The learned Judge, thereforee, inferred that the allegations of the wife regarding the criminal habits of the husband and other acts of cruelty were correct. He also further found that both the children were in the custody of the mother till 10-11-1982 when she was staying with her parents in Jullundur. This was confirmed by the certificates issued by Florence School, Jullundur. The learned Judge concluded that the father intended to remove the children outside India. The Judge interviewed the children in his chamber. They showed their unwillingness to go with their mother. But it appeared to him that they had been tutored by the father to speak against the mother. It was also not shown by the father as to what profession he was carrying on these days and his anxiety to go abroad with the children is fraught with the apprehension that he or the children may not come back.
(7) I have heard the counsel and considered all the circumstances. Certain correspondence between the sister of the husband and a brother of the husband who lives in U.S.A. has been produced here, which shows that the brothers were not on good terms, were often quarrelling with each other and were given to excessive drinking. I have also interviewed the children, both in the presence and absence of the mother. Both the little children were not prepared to live with the mother. I am not impressed by the argument of the learned Guardian Judge that the children were tutored by the father. As a matter of fact, as the law stands the father is the natural guardian of the person of the children. But he could be deprived of the guardianship and custody if it is in the interests of the minors. So, in Raj Rani Subhash Chander : 23(1983)DLT240 , both in the interest and for welfare of the minor and on a consideration of the comparative merits between the mother and the father, guardianship and the custody of the child was given to the mother. Mr Vohra appearing on behalf of the husband submitted that Section 12 of the Guardian and Wards Act, 1890, provides for interim custody only in case of an application under Section 7 thereof. Apart from that there is no provision under the law by which an interim custody of the children can be transferred in case of an application under Section 25. He also urged that the application under Section 25 of the said Act was not even maintainable. I need not go at this stage into the question whether the main application under Section 25 is maintainable or not. But I see no reason why Section 12 cannot be invoked in such cases. That apart, an interim order can be made under Section 151 Gpc if the circumstances so require. In this case, however, I feel that both the mother and the father appear to be without jobs or in any purposeful employment. But the wife is living in D-115, defense Colony, New Delhi, in a room in mezzanine floor. If the mother, as she says, is living in the same premises where the husband is living, then she has only one room, which is shared by herself and her aunt and perhaps a friend. Moreover, she said that she was busy with the work of selling sarees. Then too, she will not, thereforee, be able to look after the children properly. The father is sharing accommodation with her brother where his children are also living. The atmosphere in the husband's household, thereforee, seems to be more congenial to the children, even if I were to believe that the brothers were indulging in drinking and all was not well with the family. But the condition of the wife is perhaps worse and she will not be able to provide proper protection and shelter and other needs of the children.
(8) I, thereforee, accept this revision petition as the learned trial Judge has not properly exercised the discretionary jurisdiction vested in him. I set aside the order and direct that the children until the disposal of the petitions shall remain in the custody of the father. But I maintain the direction that the children shall not be removed out of India. Nothing contained in this order shall, however, affect the findings on merits of the petitions pending before the learned Guardian Judge. No costs.