N.N. Goswamy, J.
(1) This revision petition by the natural father of the minor, is directed against the order dated 22-7-83 passed by the learned Guardian Judge whereby he allowed the application filed by the respondent under Section 12 of the Guardian & Wards Act (here-in-after called 'the Act') and gave interim custody of the minor to the respondent.
(2) The brief facts, leading to this petition, are that the petitioner married Mst. Najma on 4-4-1976, daughter was born from this wedlock on 4-4-1979. The marriage between the parties was dissolved by divorce on 6-12-1980. Unfortunately Mst. Najma died on 21-8-81 while residing with her family members. In April 1982 the appellant filed an application for custody of the minor daughter in a court at Muradabad. He obtained an ex parte order for restoration of the child to him on 28-5-1982. Abdul Rab a maternal uncle of the minor filed an application for setting aside the ex parte order on 30-6-1982. During the pendency of that application Abdul Rab also died and a fresh application turn the said purpose was made by the respondent. The respondent is residing in Delhi while Abdul Rab was residing at Muradabad.
(3) The respondent also filed an application under .Sections 10 and 25 of the Act for being appointed as guardian of the said minor child in Delhi. Along with the said main petition, he also filed an application under Section 12 of the Act for interim custody of the minor. It is alleged in the application that after the death of Abdul Rab, the minor was in his care and custody till 3-1-1983 when once Sulaiman Sindi father of the minor had moved an application under Section 25 of the Act in the Court of the District Judge, Muradabad seeking custody of his daughter which was being contested by Abdul Rab. It is further alleged that the petitioner was not a fit person to retain the custody of the minor inasmuch as he never even took the mother of the minor with him after the marriage and he had misled the mother of the minor by making a false representation at the time of marriage that he was a bachelor and wanted to marry her and keep her as his lawfully wedded wife in Mecca. In fact he never took her to Mecca and kept her in Delhi. It is further alleged that whenever the mother of the minor conceived the petitioner had her aborted by giving abortion pills in the guise of pain relieving tablets to cause miscarriage. According to the respondent when the minor namely Miss Samira was born, it created differences, between the petitioner and his wife with the result that the mother of the minor was divorced on the short ground that she had given birth to a child. A further allegation has been made that the object of the petitioner is to kill the child so that she cannot claim inheritance when she attains majority.
(4) All the allegations in the petition were denied and it was pleaded that the petitioner has love and affection for the child as being the natural father. The learned trial Judge, while deciding the application, noticed that the minor had been left with a stranger and the petitioner had not cared to take the custody for a period of two years or more and as such the petitioner was not a fit person to retain the custody of the minor.
(5) Under Section 19 of the Act. the Court cannot appoint the guardian of a minor whose father is living and is not in the opinion of the court, unfit to be the guardian of the person of the minor. Section 17 of the Act is an exception to some extent inasmuch as while appointing guardian of a minor, the court has to look into the welfare of the minor. In the present case, the petitioner has filed affidavits with school certificates to indicate that the minor was studying in a public school and was admitted in a hostel. In fact, a governance has also been appointed to look after the minor. It is true that during the period when the minor was kept in India, the petitioner was not permanently residing in India though he used to visit the country on his business trips. However, she was being educated and looked after properly which is apparent from the various photographs of the minor placed on record in this revision petition. A further affidavit has been filed by the petitioner according to which, the petitioner has already taken the minor with him to Mecca and the minor is residing with him. As against this, the financial position of the respondent is very weak. He has to support the family of more than 8 members and even if his statement is accepted, his income is barely Rs. 1000.00 per month. Besides the financial position, it is also an admitted fact that four sisters, two brothers and father of the respondent had died at young ages. According to the petitioner the entire family was suffering from T.B. and so was the respondent. The respondent was directed to have himself examined from some good hospital and file certificate to the effect that he was not suffering from any such ailment. He has filed an affidavit Along with a medical certificate. The medical certificate is from Municipal T.B. Clinic which does not .inspire confidence. The learned trial Judge, while deciding the main petition, will have to go into all these allegations.
(6) After giving my careful consideration to the facts of the case, I am of the opinion that the petitioner is in affluent circumstances and there is nothing to indicate, at present that he is unfit to relain the custody of the minor. By now, besides the statutory provisions, it is well-settled by catena of authorities that parents will be able to take care for the welfare of their children of they do not happen to be unsuitable as guardians. In case of a dispute between the father and the mother of the minor a question may arise as to who is more suitable to be appointed as guardian and for that various factors such as age of the minor, minor having lived with one of them, their financial position and the natural love and affection in order to determine the welfare of the child, have to be taken into consideration. The main consideration being that the minor must be able to get love and affection of either his/her father or mother. This test, however, does not apply where one of the claimants is the father and the other a maternal uncle. The custody of the minor can, however, be given to the maternal uncle only after the court records a finding on material that the father is not a suitable person to retain the custody.
(7) The learned counsel, for the respondent brought to my notice, a letter written by the petitioner and few cuttings from newspapers to show that the petitioner did not want a child to be born to Mst. Najma. However, these documents have yet to be proved and their effect has yet to be noticed by the learned trial Judge. The learned trial Judge has not placed reliance on any of these documents while giving the interim custody to the respondent and in my opinion rightly.
(8) For the reasons recorded above, this revision petition is allowed and it is directed that the custody of the minor will remain with the petitioner and the petitioner will be bound to produce the minor child when and directed by the learned guardian Judge to do so The petitioner has, in fact, given an undertaking in this Court that the minor will be produced when and if required by the Court. The learned trial Judge will proceed expeditiously with the main petition. In the circumstances, the parties are left to bear their own costs.