Varadaraja Iyengar, J.
1. This C.M. Appeal arises out of an order passed by the court below dismissing a petition filed by the appellant under Section 25 of the Guardians and Wards Act.
2. The petitioner is the father and the respondent is the mother of the two minor boys aged 8 and 6 respectively who are the subject of the petition. After six years of married life, in or about November, 1953 the parents had separated and the boys had from that time onwards been in the custody of the mother. It was the appellant's case that his father-in-law took away the wife and children without his consent or knowledge. The respondent's explanation on the other hand which the court below accepted was that she was suffering from a very bad tooth-ache and the appellant took her and the children from the marital home to her father's house where he stayed three or four days and then left but not to return.
On 9-11-1956 the appellant took a second wife , in marriage and this led to a criminal complaint by the respondent, soon after on 13-11-1956 for bigamy. Before yet that prosecution was over respondent filed petition on 23-11-1956 for maintenance of herself and the children under Section 488 of the Criminal Procedure Code. The bigamy complaint was thrown out in acceptance of the pleaof divorce according to the custom of the Thiyya Community to which the parties belonged, set up by the appellant. The respondent withdrew immediately the claim for her own maintenance in the light of the divorce verdict which she acquiesced in and got order dated 19-11-1957 for maintenance to the children at the rate of Rs. 30 for each per mensem with effect from the date of the petition.
It was thereafter on 3-12-1957 that the appellant filed this petition on the allegation that he has been wrongfully deprived by the respondent of the custody of the children about four years back and he was entitled to be restored the same. The petition also alleged that the children were not being properly taken care of by the respondent and their welfare required that they should live with the appellant their father and natural guardian who could afford to maintain them and meet all their needs.
3. The petition was contested by the respondent on the basis that the appellant had not evidenced any love or affection to the children so far and the application was only a device to avoid payment of maintenance ordered by court. Indeed the appellant had to be compelled by order of court on her motion after this petition on 23-12-1957 to pay the maintenance at all to the minors, though in instalments. She contended that the children had been already put to school and their welfare demanded that they continue in her custody.
4. The parties examined themselves on their respective pleas and also filed documents before the court below. It transpired from the evidence that the appellant had become divided from his family and was living alone with his second wife who was enceinte; on the other side that the children were well looked after and being educated by their mother and that though she was not a person of my means her father was a rich man.
In the opinion of the court the appellant's second wife insulted and disgraced as she was by the conduct of the respondent, could not be expected to have a warm heart for the children. Also that the present petition in the context it was made, was more to evade the maintenance order in favour of the children than to properly look after them. The court below, therefore, dismissed the petition and hence this appeal.
5. Mr. P. Govinda Menon, learned counsel appearing for the appellant, strenuously contended that the right of the Hindu father to the custody of his minor children is absolute and prevails even against the natural mother, particularly as according to him, there is no question here of tender years. He submitted that the appellant's apparent neglect of the children so far should not be weighed too much against him in the light of the severe strain of criminal prosecution which himself and his second wife were subjected to at the hands of the respondent and which deprived him possibly of calm thinking.
The children should not also, according to learned counsel, be allowed to develop in their impressionable age in an atmosphere of utter hatred of their father which the custody of the divorced mother necessarily meant. But a guardian who applies under Section 25 of the Guardians and Wards Act is not ipso facto entitled to relief. The court on enquiry must be satisfied that it is for the welfare of the minor to hand over the custody to the applicant. As observed in Shushila Ganju v. Kun-war Krishna, AIR 1948 Oudh 266:
'In an application under Section 25 the sole criterion for disposing of the case is the minor's welfare. Itis only if Court is of opinion that it will be for the welfare of the ward to return to the custody of his guardian that it can pass an order for such return. The rights of the guardian should not weigh at all though it may be presumed that, if the law gives the guardianship to a particular person it is in the interests of the minor that that person should have custody of his person. But other circumstances cannot be ignored.'
In that case the husband and wife married in J.941. In July 1942 when she was enceinte the wife left her husband's house and never returned. In November 1942 the wife gave birth to a son at her father's house. The boy never went to his father's house. In spite of a decree for restitution of conjugal rights, and various requests the wife did not return to her husband who married a second wife in 1946. In 1947 the father applied but unsuccessfully under Section 25 for custody of the boy who was then in the custody of his mother. In Ponniah Asari v. Suppiah Asari, AIR 1935 Mad 363, it was held:
'Though the father has, as natural guardian, a prima facie right to the custody, still this may be negatived by the circumstances of the case, showing either past indifference and neglect or tacit consent in the infant being brought' up by other relatives.'
'Where it appears that an application is not bona fide, it ought not to be granted.'
There the father and elder brother of a minor girl aged 13 applied for an order directing her to be placed in the custody of the 1st petitioner. The respondents were the maternal uncles of the minor girl. The minor girl when she was about one year old was, with the consent of the 1st petitioner, taken away by her maternal uncle and so she had remained with them ever since. The 1st petitioner had thereafter married a second wife and had four children by her. Beasley, C.J, in dismissing the application referred among other cases to Bai Tani v. Mohanlal Lallubhai, AIR 1922 Bom 405:
'Where the court dismissed the application of the father for the custody of his minor son who had been living with his mother for the past five years and apparently the father had acquiesced in this. The Court tested the application by a consideration as to whether it would be in the interests and welfare of the minor to return the minor to the custody of the father and held that it was not.'
See also Chinna Sambayya v. Rudrappa, AIR 1935 Mad 568 where the question of bona fides of the applicant was stressed.
6. It is no doubt true that the burden of proof in these cases is upon the person who opposes the application of the guardian for custody. The bur-den was considered to be especially heavy when the father was the applicant--See Mrs. Annie Result v. G. Narayaniah, ILR 38 Mad 807: (AIR (1914 PC 41). But the modern view would appear to indicate that in a contest between the mother and the father regarding the custody of a child of tender years the court in the interests of the child will prefer the mother to the father.
The reason is that the rule that a father has got the natural right to the custody of his children is not a rigid and inflexible rule and must give way where the minor's welfare demands otherwise. So in Saraswathibai v. Shripad Vasanji, AIR 1941 Bom 103, a Hindu boy of three years was allowed to remain in the custody of the mother though the father was not unfit and had his mother with him and Beaumont. C.J., observed:
'I think the law on questions of this sort is the same in this country as in England, though of course special habits may be different. The modern view of Judges in England is that it is impossible in the case of a young child to find any adequate substitute of the love and care of the natural mother. If the natural mother is a suitable person, the Courts in England will as a general rule hand over the custody of a child of tender years to the mother. The mother's position is regarded as of much more importance in modern times than it was in former days, when a wife was regarded as little more than the chattel of her husband. The view of society in India as to the position of woman may not have advanced so far or so fast as in England, but at the same time the right of the mother to the custody of her young children is undoubtedly recognised in this country; see for example 24 Bom LR 779: (AIR 1922 Bom 405). However the paramount consideration is the interest of the child rather than the rights of the parents. Human nature is much the same all the world over, and in my opinion if the mother is a suitable person to take charge of the child, it is quite impossible to find an adequate substitute for her for the custody of a child of tender years.'
Similarly in Mohd. Saddiq v. Wafati, AIR 1948 Oudh 51, a nine year old Muslim boy was left in the care of the mother divorced by the father and not married again in preference to the father who bad remarried and had children by the second marriage.
7. Applying the tests above we are not satisfied that the court below has not decided correctly when it held that it is for the welfare of the minor children here they are not removed from their mother's custody. As observed by Lindley, L.J. in In re McGarth, (1893) 1 Ch 143 'the welfare of the child is not to be measured by money only or physical comfort only............The moral or religiouswelfare of the child must be considered as well as its well-being. Nor can the ties of affection be discarded.' Taking into consideration, therefore, the position of the parents, the position of the children and the happiness of the children we are clear that the children are well left undisturbed for the present. After all, these orders are of a temporary character and if at any time, it should appear that the respondent is not giving that care and attention to the children which is expected of her and is not giving the children a proper education it will always be open to the appellant to get a proper order. At the same time we wish that the appellant who under the present arrangement will be only about 12 miles away from the children, gets them to know more about him and for the purpose avails himself of the opportunities of access to them undertaken to be provided for by the respondent.
8. The appeal fails in the result,. It is, therefore, dismissed but in the circumstances withoutcosts.