J.B. Mehta, J.
1. The appellant-plaintiff, father of the minor children, who had filed the application under Section 25 of the Guardians and Wards Act, 1890, hereinafter referred to as 'the Act', has filed this appeal as the learned Single Judge had set aside the trial Court's order on the ground that it had no jurisdiction and he had further held that the provisions of Section 21 of the Code could not be invoked in such cases. The appellant and respondent No. 1 were married on February 18, 1961, and were residing at Palanpur. There were three children of this marriage. The first son was born on July 22, 1963, the daughter was born on February 28, 1966 and the second son was born on May 15, 1968. It is the case of the appellant that respondent No. 1 wife ran away from the family house at Palanpur on October 31, 1967 to her father's house in village Vaghel in the jurisdiction of the Mehsana District Court. The appellant therefore applied for restoration of custody of these three minors who were removed by respondent No. 1 wife to village Vaghel against the will of the appellant. This application was filed on January 6, 1970, before the District Court at Palanpur and in the same application the appellant's father-in-law and mother-in-law were joined as respondents Nos. 2 and 3 on the ground that they were instigating and not a the appellant to see these children. The trial Court by the order, dated September 3, 1971 held that it had jurisdiction, as the minor children must be taken to be residing with the father who had the legal custody. He, therefore, ordered that the eldest son Ashok should be delivered to the custody of the father while the other two children were allowed to be retained by the mother on the ground that consideration of welfare of the minors required that course to be adopted. The appeal of the wife against that order having been allowed on the point of jurisdiction as aforesaid, the appellant applicant has filed this Letters Patent Appeal.
2. The relevant Section 25(1) provides as under:-
'If a 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.'Section 25(3) then provides that the residence of a ward against the will of the guardian with a person who is not his guardian does not of itself terminate the guardianship. The scheme of this provision has been interpreted by their Lordships in Rozy v. Jacob, : 3SCR918 their Lordships pointed out that Section 25 contemplates not only actual physical custody but also constructive custody of the guardian which term includes all categories of guardians. Section 25 is attracted only if a ward leaves or is removed from the custody of a guardian of his person and the Court is empowered to make an order for the return of the ward to his guardian if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian. The Court is entrusted with a judicial discretion to order return of the ward to the custody of his guardian, if it forms an opinion that such return is for the was welfare. Their Lordships pointed out that the use of the words 'ward' and 'guardian' leaves little doubt that it is the guardian who, having the care of the person of his ward, can seek the assistance of the Court for the return of his ward to his custody. The object and purpose of the provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardians to properly look after the ward's health, maintenance and, education, this section demands reasonably liberal inter-pretation so as to effectuate that object. Hyper-technicalities should not be allowed to deprive. The guardian of the necessary assistance form the Court in effectively discharging his duties and obligations towards, his ward so as to promote the latter's welfare. Their Lordships further pointed out that Section 19(b) provided that a guardian is not to be appointed by the Court when the minor's father is living and is not in the opinion of the Court unfit to be the guardian of the person of the minor. Therefore, then the only provision to which the father can have resort for his children's custody is Section 25. Therefore, the father's application under Section 25 for the custody of his children was held to be competent and their Lordships observed that the Court would have to consider all the questions on facts and law properly raised before it relating to the children in question. Even under Section 25 the controlling consideration governing the custody of the children was primarily the welfare of the minors concerned. The discretion vested in the Court was, as was the case with all judicial discretions, to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases could hardly serve as binding precedents, the facts of two cases in that respect being seldom-if ever-identical. Their Lordships further pointed out that there was no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare. The father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then the cannot claim indefeasible right to their custody under section 25 merely because there was no defect in his personal character and he has attachment for his children which every normal parent has. Therefore, their Lordships held that the father's fitness could not override considerations of the welfare of the minor children. No doubt, the father has been presumed by the statute generally to be better fitted to look after the children being normally the earning member and head of the family but the Court had in each case to see primarily to the welfare of the children in determining the question of their custody in the background of all the relevant facts having a bearing on their health, maintenance and education. This view was taken by their Lordships of the right of the father to be appointed, or declared as guardian and to be granted custody of the minor children under section 25 read with Section 19 in terms laying down that to the extent the decision were against this view as to the true interpretation of section 25 of the Act they must be held to be wrongly decided. Mr. Oza, therefore, argued that if the father was the person entitled to make this application under section 25 and it was his only remedy when the ward was removed against his will, the Court which must give assistance must in that context be the Court where the father was residing and from whose custody the minor was removed.
3. section 25(1), however, has categorically used the expression 'the Court' which has been statutorily defined in Section 4(5)(a) to me an the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian. Under Section 19(1) if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. Therefore, the legislature has statutorily defined the Court for the purposes of section 25(1) as the District Court having jurisdiction in the place where the minor ordinarily resides. Therefore, the legislative the of the Court which has jurisdiction in this matter is the Court where the minor ordinarily resides and not the Court where the father resides and with whom the minor must be deemed to have been in constructive custody. If the application is made immediately after the removal from the father's custody, the place where the father resides would be the place where the minor ordinarily resides and there would be no difficulty. Similarly, if there are two places where it could be held that the minor was ordinarily residing, the question would be one of convenience because the legislative test would be fulfilled. The question however cannot be decided on presumptive, legal or constructive custody but by an application of the statutory test of the ordinary residence of the minor. This would surely be a question of facts to be resolved in each case by taking into consideration all the relevant circumstances.
4. 'Therefore, the learned Single Judge was right in applying this statutory test by considering facts of the present case where according to the learned Single Judge the minor must be deemed to be ordinarily residing at the new place in Vaghel with his mother which has become now the settled home of the minor children who were taken there by respondent No. 1 mother as early as on October 31, 1967, almost more than two years before the date of the present application on January 6, 1970.
5. Mr. Oza vehemently argued that the statutory definition has to be applied with the necessary rider that there was nothing repugnant in the subject or context as mentioned in the opening clause of Section 4. Mr. Oza was enable to point out anything repugnant in the context to depart from the statutory definition except contending that this would be an obstacle in the way of the legal guardian from recovering the custody of the removed ward if the ward under custody of the legal guardian is removed. An application would generally be filed immediately before the minor settles in the new home and in such cases there would be no difficulty whatever because the place where the guardian resides is also the place where the minor ordinarily resides. This question also would not assume importance when the minor would, have two residences for both of which it could be said that he ordinarily resided at both the places, because there both the Courts would have jurisdiction and the question would be material only as one of convenience. The only question would be where the minor after removal has a settled home at the other place, when the question would have to be resolved only by reference to this statutory test. It would be in accordance with the scheme of the Act that such an application is filed where the minor ordinarily resides as that Court would have to continue its superintendence by passing up follow up orders. In such cases where the minor has another settled home the fundamental question which would arise would be as to whether the minor should be uprooted from that settled home. The child's happiness depends on his palymates i.e., associates, his work, the school and his
home, where he gets all love and affection ' which a child needs for proper growth. Therefore, wherever a settled home of any child is sought to be disturbed by the Court's order as per the universal practice, the Court does not pass mechanical order as in olden days of delivery of the child as if it was a chattel. The Court always personally sees the parents, consults the wishes of the minors and considers the whole subject from the paramount consideration of the minor's welfare as pointed out by their Lordships and even parental rights are overridden by this paramount consideration of the minor's welfare. That is why in such cases the Court adopts various devices by passing orders of visiting access, staying access and after sufficient attachment is formed even attempts to give the child's custody in the different home which would be for its best welfare. Therefore, it is difficult to accept the contention of Mr. Oza that there is anything compelling in the context of section 25(1) to indicate that any different Court is intended than the Court defined under Section 4(5) i.e., the District Court of the place where the minor ordinarily resides.
6. This is the consistent view which has been taken of this provision as pointed out by the learned Single Judge. In Rev. Robert Ward v. Vulcan Merchant, (1909) 11 Bom LR 1137, a Division Bench consisting of Scott, C. J. and Batchelor J. categorically laid down that is a case where the minor who lived at his father's death at Kapadvanj within the jurisdiction of the District Court at Ahmedabad was removed to Baroda where he was kept in American Mission for 21/2 years, after he was baptised, he ordinarily resided at Baroda and he had no other place of residence and, therefore, the Ahmedabad Court had no jurisdiction to appoint guardian of the minor within the meaning of Section 9(1) of the Act. It was further held that the question of domicile was wholly irrelevant in this context. In Layman v. Anagram, 34 Boom LR 1293 : (AIR 1932 Bom 592), a Division Bench consisting of Baker and Broomfield JJ. in terms held that the proper Court to deal with this question under Section 9 of the Act was the District Court having jurisdiction in the place where the minor ordinarily resides. It was in terms pointed out by Broomfield, J. with whom Baker, J. agreed, that the first question which arose was whether the minor girl ordinarily resided in Poona or in the Ranger District because consideration of convenience would only be relevant in the event of the facts justifying the finding that the minor ordinarily resided in both the Districts. It was further pointed out that the decisions made it in terms clear that such a question of residence was a matter of fact and not the matter of presumption. It was categorically laid down that it could not be presumed that the minor girl ordinarily resided in Poona merely because her husband was residing there. 'Therefore, the test of this legal or constructive custody of the guardian or legal residence by invoking such a presumption of law was in terms negative. Where the minor girl only resided for 4 to 5 months in Poona and the rest of the time she resided in Khed in Ratnagiri District, only the Ranger District Court would have jurisdiction. Finally, in Chimanlal Ganpat v. Rajaram Maganchand Oswal, 39 Bom LR 103 at P. 109 :. (AIR 1937 Bom 158 at P. 159) a Division Bench consisting of Broomfield and Wassoodev, JJ. in terms considered the question whether the Poona District Court had no jurisdiction to appoint a person as guardian of the minor girl or make an order under section 25 in his favour merely because he did not reside within the jurisdiction of the Poona District Court but in the State of Kolhapur. After considering various decisions, it was pointed out by the learned judges that it was nowhere specifically enacted in the Act that no person shall be appointed as guardian who had not been residing within the jurisdiction of the Court. Section 39(h) empowered the Court to remove the guardian for ceasing to reside within the jurisdiction but did not say that he must be removed as a matter of course. in all proceedings under the Act the paramount consideration is the welfare of the minor and if it were to be held that in no circumstances could a person residing outside, the jurisdiction be appointed guardian, the Court might be prevented from making the appointment which most conduced to the minor's welfare. The learned Judges approved the learned Single Judge's observation which were as under:-
'If the law were that only a person living within the jurisdiction of the Court could be appointed a guardian, then in some cases the consequences may be disastrous, as it may permit an unscrupulous person to prevent the well wishers of the minor from being appointed guardian, by inducing the minor to remove, himself and his property from the district in which his friends and relatives most competent to act as his guardian reside.'
7. That was precisely what had happened in that case. Therefore, it was categorically laid down that there was no legal prohibition against the appointment of a person as guardian who was not residing within the jurisdiction of the Court, though naturally the Courts would as an ordinary rule be reluctant to make such an order. The same position was held to be true even for being applied to orders under section 25. In that particular case, this very test was applied of the ordinary residence of the minor within the local limits of the District, Court as provided in Section 9(1) and it was categorically laid down that even for the purpose of section 25, the words 'the- Court' having been mentioned there, it meant the Court which was defined in Section 4(5), viz. the District Court having jurisdiction in the place where the ward for the time being ordinarily resided. In that case the minor had spent greater part of her life with the respondent in Kolhapur but as for about 8 months before the date of the application she was admittedly residing with the opponents in the Poona District where even arrangement was made for her engagement and where she would have continued to reside but for that application under section 25. It was held that she was ordinarily residing within the jurisdiction of Poona District Court at the material time both for the purpose of appointment of guardian and for the purpose of order under section 25. Therefore, this consistent line of decisions clearly negatives the contention raised by Mr. Oza that because the father had the constructive custody and, therefore, the presumptive, legal residence of the minor was with the father, the Court at the father's place had jurisdiction in this, case, even though for such a long period as about two years the minors' settled home has been found to be with their mother in Mehsana, District, village Vaghel. As earlier pointed out, even if the District Court Meshing exercised jurisdiction, it could order delivery of, the ward to the father, if he was found to be entitled to be preferred while passing the order. Therefore, no ground has been made out by Mr. Oza even after the decision of Jacob's case : 3SCR918 for unsettling the law which has been laid down in these binding decisions. Therefore, the learned Single Judge had rightly applied statutory test of minor's ordinary residence for finding out the District Court, which had the jurisdiction to entertain the application under section 25.
8. No doubt, Mr. Oza had relied upon the observations of Mudholkar J. (as he then was) in Vimalabai v. Baburao, AIR 1951 Nag 179. That decision does not adopt any different test because it has in terms followed the binding decision in 39 Bom LR 103 : (AIR 1937 Bom 158). The learned judge referred to the decision in Anilbala v. Dhirendra, AIR 1921 Cal 309, by the Full Bench of the Calcutta High Court. The learned Chief Justice Mookerjee considered a plethora of decisions as to the meaning of the term 'residence'. The learned Chief Justice pointed out two Privy Council decisions in S. Ordead v. J. Skinner, (1980) 7 Ind App 196 and Srinivasa, v. Venkatavarada, (19,11) 38 Ind App 129, where their Lordships had recognised that man might have two residences. But the learned Chief Justice after considering these decisions pointed out that the term 'residence' might be used in two senses, the one denoting the personal habitual habitation, the other the constructive, technical and legal habitation. When a person has a fixed abode. Where he dwells with his family, there can be no doubt as to the place where he resides; the places of his personal and legal residence are the same. When, on the other hand, a person has no permanent habitation or family, but dwells in different places as he happens to find employment, there can equally be no doubt as to the place where he resides. But some individuals have permanent habitations, where their families constantly dwell, yet they pass great portions of their time in other places; such persons have a legal residence with their families and personal residence in other place, and the word 'reside' may with respect to such persons be used in relation to either their personal or their legal residence. From that point of view it was manifest that one might have two places of residence, in one of which he resided, during one portion of the year, and in the other during the remaining portion; what may be said to be the place of personal residence during one portion of the year thus becomes the place of legal residence during the remainder of the year and vice versa. The learned Chief justice also pointed out that this question of residence was entirely different from domicile, which was often wholly independent of actual residence. Cases in different jurisdiction were considered to point to the recognised principle that it was not inconsistent with first principles that man may have two places, of residence. Therefore, the ratio which was laid down was that the term 'residence', was an elastic word, of which an exhaustive definition could not be given; it was differently construed according to the purpose for which enquiry was made into the meaning of the term; the sense in which it should be used was controlled by reference to the object. Therefore, Mudholkar J. in Vimalabai's case held that as father under the Hindu law was the natural guardian of his children, his children must be deemed to reside where he resided. He followed the observations of the learned Chief Justice Mockeries that where a man had no permanent abode he must be deemed to reside where he actually resides. Therefore, this was a case where minor's residence was also a place of the father's residence where he actually happened to reside. Therefore, no different principle is propounded which is contrary to the settled line of decisions, which we have referred to.
9. Mr. Oza next argued that, in any event, the learned Single Judge wrongly interfered with the trial Court's finding on this question. The trial Court had applied the wrong test of presumptive legal residence of the minors with the father without going into the statutory test as to whether the minors had been ordinarily residing in the Mehsana jurisdiction. The learned Single Judge had rightly resolved this question by relying upon all the relevant circumstances, including the fact that minors resided with the mother for a period of about 2 years, before the date of this application at the village Vaghel, which was the natural place of the family home of the minors where they were living with one of the parents and where they were actually being educated, supported and looked after. Therefore, it is their settled home at the relevant time from which they had to be uprooted and, therefore, the learned Single Judge had rightly held that in the circumstances of the case the father's place could only be said to be place of presumptive, legal residence or constructive custody and not a place where minor ordinarily resided. Therefore, on that point the learned Single Judge was right in holding that the expression 'the Court' in section 25 would require this application to have been filed before the Mehsana District Court.
9-A. That leads to the second fundamental question in this appeal that is whether the trial Court's decision in this matter can be said to be a nullity or it was a decision which can be maintained by invoking Section 21 of the Code for the sole reason that there was no failure of justice because no prejudice was urged. The wife had appeared and led all the evidence and had made no grievance that there was any prejudice and the point of prejudice has not even been urged by Mr. Oza and could not have been urged, because it was the father who has filed this application in the Palanpur District Court where the father resides. The legal position on this question is well settled after the decision in Kiran Singh v. Chaman Paswan, : 1SCR117 . Their Lordships pointed out that it was the fundamental principle well established that a decree passed by a Court without jurisdiction was a nullity and that its invalidity could be set up whenever and wherever it was sought to be enforced or relied upon even at the stage of execution and even in collateral proceeding. A defect of jurisdiction, whether it was pecuniary or territorial, or whether it was in respect of the subject--matter of the action struck at the very authority of the Court to pass any decree and such a defect could not be cured even by consent of parties. Therefore, on general principles their Lordships pointed out that there could be no doubt that the District Court of Monghyr was 'coram non judice', and that its judgment and decree would be nullities. Thereafter their Lordships pointed out that there were, however, provisions enacted in Section 11 of the Suits Valuation Act and Sections 21 and 99 of the Code of Civil Procedure for seeing that such decrees were not treated as nullities when there was no failure of justice. Their Lordships categorically referred to Section 21 of the C. P. Code which related to the question of territorial jurisdiction, unlike Section 11 of the Suits Valuation Act which related to the question of pecuniary jurisdiction and which enacted that no objection to the place of suing should be allowed by an appellate or divisional Court, unless there was a consequent failure of justice. Their Lordships pointed out that this was the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. Thereafter it was observed as under:-
'The policy underlying Sections 21 and 99, C. P. C. and Section 11 of the Suits Valuation Act is the same, namely, that when a case had, been tried by a Court on the merits and judgment rendered, it should not be liable, to be reversed purely on technical grounds unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits.' Therefore, it was held that the contention that the judgment and decree, of the District Court, Monghyr, was nullity could not be sustained in view of this express enactment in Section 11 of the Suits Valuation Act. At page 343 their Lordships pointed out that a change of mere forum was not prejudice within the meaning of Section 11 of the Suits Valuation Act. if the fact of an appeal being heard by a Subordinate Court or District Court where the appeal would have lain to the High Court if the correct valuation had been given, was itself a matter of prejudice, then the decree passed by the Subordinate Court or the District Court must, without more, be liable to be set aside, and the words, 'unless the over-valuation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits' could become wholly useless. These words clearly show that the decrees passed in such cases are liable to be interfered with by the appellate Court, not in all cases as a matter of course, but only if prejudice such as is mentioned in the section resulted. That is why it was held that the prejudice envisaged by the section was something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimately determined. Thereafter, their Lordships considered what would amount to prejudice. Their Lordships pointed out that the prejudice on merits must be directly attributable to over-valuation or under-valuation and an error in a finding of a fact reached on a consideration of the evidence could not possibly be said to have been caused by the over-valuation or under-valuation. Mere errors in the conclusions on the points for determination would, therefore, be clearly precluded by the language of the Section 11 of Suits Valuation Act, or as in the present case of Section 21 of the Code. Therefore, it was categorically laid down that mere change of forum or mere error in the decision on the merits would not come within the term prejudice. Their Lordships gave some illustrations as for example, if there was no proper hearing of the suit or appeal which has resulted in injustice and which would amount to prejudice. Another instance was when a suit which ought to have been filed as an original suit is filed as a result of under-valuation on the small causes side. The procedure for trial was summary. There are no provisions for discovery or inspection; evidence was not recorded 'in extensor', and there was no right of appeal against the decision. Therefore, it can be said that the defendant lost the benefit of right of appeal which he would have if the suit was filed on the original side and there was prejudice. Therefore, their Lordships laid down the categorical test that whether there has been prejudice or not, is, accordingly, a matter to be determined on the facts of each case. Finally, their Lordships pointed out at page 345 that the requirement of prejudice had to be satisfied and in any event the party who had resorted to the forum of his own choice on his own valuation could not himself be heard to complain of any prejudice. This decision was, with great respect, erroneously ignored by the learned Single Judge on the ground that a special Court was set up under section 25 by giving statutory definition of 'the Court' in Section 4(5) read with Section 9(1) as the District Court where the minor ordinarily resides. That is the very reason why the provisions of Section 21 of the C. P. Code have to be resorted to. Section 21 categorically provides, as pointed out by their Lordships in the context of Section 11, that such a decision by the, Court which was incompetent to exercise its territorial jurisdictions was not liable to be set aside without it being shown that there was prejudice on merits. Therefore, the point about territorial jurisdiction has always to be treated as a technical objection and the judgment must be allowed to stand, unless there has been failure of justice because of the prejudice which has resulted there from. There can be no contention of prejudice in the present case as it was the father who had made the application in the Paramour District Court and he could never raise the question of any prejudice. Besides, it has rightly not been contended that there was any question of prejudice in this case. Therefore, merely the ground, that the territorial jurisdiction is of the other District Court specified in Section 4(5) shall be no reason not to invoke this curing provision, which is enacted by the legislature in Section 21 of the Code, based on such a transcendental principle that such technical objections should never be allowed to prevail when there is no failure of justice.
10. The other reason given by the learned Single Judge was that the provisions of the Act were special in nature to such an extent that the Court would be required to pass follow-up orders in the matter from time to time and every order by its nature was temporary which could, be modified as per the exigencies and change of circumstances. It was pointed by the learned Single Judge that the provisions of the scheme intended that this question should be handled only by the District Court where, the minor ordinarily resided as it was clear even from the provision in Section 26(1) which provided that a guardian of the person appointed or declared by the Court....................shall not without the leave of the Court by which he was appointed or declared, remove the ward from the limits of its jurisdiction, except for such purposes as may be prescribed. The other provisions were also referred to show that the reference was to the guardian being within the local limits of the Court. This contention was specifically considered by the Division Bench in the aforesaid decision in (AIR 1937 Bom 158) and it was categorically held after elaborate consideration of the relevant provisions and other decisions that there was on legal prohibition against appointment of a person as guardian who was not residing within the jurisdiction of the Court, though the Courts would as an ordinary rule be reluctant to make such an order. The same, position was held even to apply to an order under section 25. Therefore, the settled legal position shows that even where a guardian is outside the jurisdiction, proper follow-up orders can be made both in the matter of the appointment of the person as guardian and for restoring the custody under section 25, as it is nowhere enacted specially in the Act that nor, patron shall be appointed as guardian who does not reside within the jurisdiction of the Court. Besides, there was no inherent defect as regards the follow) orders as real both the District Courts were under the appellate jurisdiction of this High Court. In any event, when Section 141 of the Code categorically provides that the procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable in any Court of civil jurisdiction, in such an original proceeding which started with in, application under section 25 in this District Court of civil jurisdiction, such provisions of the Code in regard to suits were clearly applicable There was nothing compelling in the context making this section inapplicable, especially as Section 21 is a transcendental provision which is made in the Code any to see that an ground of such technicalities as to the question of local or territorial interdiction, the orders of the Court are not rendered null and void. It was active provision to see that the technicalities do not prevail when there was no failure of justice Therefore, when this essential condition in Section 21 was not fulfilled as to there being consequent failure of justice, the Court was bound to resort to this curate provision in Section 21 before declare the order of the District Court to be null and void by upholding the point about territorial jurisdiction. The order was on merits after due hearing and, therefore, on a mere technical ground it could not be held to be a nullity when there was no consequent failure of justice whatever. Therefore, as per the settled legal position, the learned Single Judge, with great respect, was in error in holding that the decree passed by the Palanpur District Court was a nullity which could not be cured by resorting to this curative provision of Section 21 of the Code. In that view of the matter, although the learned Single Judge was right in the view that the proper Court in this case would have been Mehsana District Court, in view of the fact that there has been no consequent failure of justice the order of the Palanpur District Court should have been maintained and, the matter must have been decided on merits.
(As the parties asked for time for compromise, the matter is adjourned to 18th September, 1973.)
11. The parties have not been able to arrive at an amicable settlement and, therefore, we will have to send back the matter to the learned Single judge for disposal on merits. It is unnecessary to point out the settled legal position in this connection. In AIR, 1973 SC.9000, their Lordships have now finally settled the legal position at page 2099 that the father's fitness would have to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. And the father cannot claim indefeasible right to their custody under section 25 merely because there is no defect in his personal character and he has attachment for his children which. every normal parent has. The father's fitness from that point could not override the considerations of the welfare of his minor children. Absolute right of parents over the destinies and lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian Court, in case of a dispute between the mother and the father is impacted to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. That is why in that case, their Lordship had at page 2101 held that the learned Single judge had correctly exercised his discretion by making suitable provision for access, especially as such orders were temporary orders which could, be changed when conditions and circumstances got changed on passage of time and such variation becomes necessary in the interest of the welfare of the wards. Their Lordships pointed out that such custody orders of wards even when based on consent were liable to be varied by the Court, if the welfare of the wards demanded variation. In H. v. H. and C., (1969) 1 All ER 262, the Court of Appeal had considered this question and pointed out that it was the universal practice for the Courts now in such cases not to look at the affidavits in cold-print but to see the parties themselves not for the purpose of trying to ascertain who was to blame for the marriage breaking up, (which was quite unimportant) but so that it could form a view of the personality and character of the man and the woman as a father and mother and assess how their personality and character were likely to affect the child. It was further pointed out that when a child could not even remember his mother at all, and who was very happy in his present environment, ought not suddenly to be snatched away from it and sent to the mother, whatever may be best for him a little Later on. In such a case the child should never be uprooted from the settled home otherwise it would have a serious psychological impact on the child's mind and growth. It was pointed out that in such a case the child should be left where he was for the judgment; that there ought to be immediately liberal visiting access to the mother so that the child gets to know her and very soon liberal staying access. It Was in terms pointed out that none of the orders made in the Court as to case and control, or for that as to access, if an application was made by the other for care and control or cause to by of the ward were final. Once, however, there had been visiting access and staying access, if an application was made by the mother for care and control, or was renewed, the Court would have the benefited of knowing how the staying access had worked out and it would have further the benefit of seeing both the parties so as to make up its mind whether it was best for the child, to be in the care and custody of the mother or the father. It was therefore categorically laid down that the child in such circumstances should not be the uprooted from the familiar home and soundings to translate him to a new environment. Similarly, in C. v. C., (1970) 1 All ER 309, the Court of Appeal further pointed out that there was no such principle in custody cases that a boy of eight should, other things being equal. be with the father and in all such cases the paramount consideration was the welfare of the infant and the Court must look at the whole back-ground of the infant's life on all the circumstances of the case. In M. v. M., (1973) 2 All ER 81, the Court of Appeal further pointed out that even the tight of access should be regarded in such cases more as a right of the child rather than of the parent. We emphasise while reiterating these salutary settled guide lines the modern approach which should be adopted by the guardianship Court, giving paramount importance to the aspect of welfare of the wards, so that they can grow up in a normal balanced manner to be useful members of the society and do not become unfortunate victims of the unseemly quarrels of their utterly divided parents. As both the parties wanted to raise their contentions including one as to suitable orders for education of the minors before the learned Single Judge in this behalf, after he saw the parties and ascertained wishes of the concerned wards, if any, we retrained this matter to the learned Single Judge for final disposal in accordance with taw. The appeal is accordingly all6wed with no order as to costs in the circumstances of the case.
12. Order accordingly.