L.N. Chhangani, J.
1. This is an appeal by Gurdeosingh against the order of the Civil Judge, Ganganagar, who accepting the application of the respondent Daulat Kaur under Section 25 of the Guardians and Wards Act directed him to deliver his minor son Darshansingh into the custody of the respondent. The relevant facts are these:
2. The appellant Gurdeosingh married the respondent Daulat Kaur some time in the year 1947. Out of this union the minor Darshansingh was born in the year 1950. In the year 1952 or 1953 Gurdeosingh married another wife Mst. Mukhtiar. Some time after the second marriage relations between the husband and his first wife got strained and the petitioner's case is that Gurdeosingh began to ill-treat her and her son Darshansingh. . It is further alleged that some time in July, 1955, Gurdeosingh turned her out of his house and the minor son was kept By Gurdeosingh in his custody.
In August, 1955. Daulat Kaur put an application in the Court of Senior Civil Judge under Section 25 of the Guardians and Wards Act and prayed for an order directing that the minor should be delivered in her custody. The main grounds on which the petition was based are that Gurdeosingh and his second wife Mukhtiar Kaur had been ill-treat-ing the minor and had been often beating him. The minor is completely neglected and no, arrangements for his proper schooling are made. It was also stated that Gurdeosingh. had fallen into a bad company and is a man of bad character.
It was also prayed in the application that Gurdeosingh should also be directed to pay Rs. 100/-per month to Daulat Kaur for the proper mainten-ance of the minor son Darshan Singh. The application was resisted by Gurdeosingh, who denied the various allegations made in the petition and further pleaded that Daulat Kaur was not turned out by him but she left his house on her own free will and it was on account of her refusal to come and live with him that he had to contract the second marriage. It was also mentioned that Daulat Kaur is not a woman of good character.
He also promised to make proper arrangementfor the schooling of the minor. The trial courtafter recording evidence accepted the petitioner'sapplication. Analysing the trial court's finding,I may point out that he first made a general statement that the evidence adduced from both sides ishighly interested and hence it is not safe to relyon it. Having made the general statement he proceeded to examine the allegations of the respondentwith regard to the character of Daulat Kaur and concluded that there is not the slightest evidence on therecord to that effect.
From this he inferred that Gurdeosingh is not the right type of person to have the custody of the child. The lower court thereafter takes up the controversy between the parties as to whether Daulat Kaur was turned out of the house by the husband or she left the husband's house on her tree will. On this controversy he records the finding in favour of Mst. Daulat Kaur.
Finally he referred to a number of cases which lay down the various considerations which have to be borne in mind in deciding an application under Section 25, and while applying the principles of these cases he recorded that Gurdeosingh having contracted the second marriage and the minor being required to remain with the step-mother cannot be expected to be properly looked after. According to him the affection which, is expected of the natural mother is necessary for the child at the tender age. In this view of the matter he allowed the application and directed that the minor son should be delivered into the custody of the petitioner Daulat Kaur. Gurdeosingh, the non-petitioner has come in appeal.
3. I have heard Mr. Thanchand Mehta for the appellant and Mr. Hukam Chand Jain on behalf of the respondent. Taking up the legal aspect of the case first, the learned counsel for the parties pressed for my consideration the authorities relied upon by the trial court and cited a few additional authorities and wanted to cite more. It is, however, unnecessary to notice all these authorities and to discuss them. However, no case of this Court having been cited before me, I consfder it neces-sary to lay down the principles deducible from these cases governing applications under Section 25 of the Guardians and Wards Act:
(1) The first and the paramount consideration is the welfare of the minor and all other considerations are subsidiary and subordinate and should have importance proportionate to their bearing upon the welfare of the minor.
(2) The matters which have been enumerated in Section 17 in connection with appointment or declaration of guardians for minors are relevant and help-ful in dealing with applications under Section 25 of the Guardians and Wards Act.
(3) Under the Hindu Law the primary responsibility for maintaining the minors is that of the? father and he is the natural guardian of minor and ordinarily his right to the guardianship and custody of the minor should not be taken away unless he is proved to be unfit.
(4) It is now being increasingly realised in modern times that there is no equal or substitute for the mother's love and warmth of affection towards children and, therefore, in appropriate cases on a consideration of tender age of a minor and other circumstances, such as second marriage be father, the father's right may be allowed to be defeated and subordinated to the interest of the minor and the custody of the mother may be preferred to that of the father, provided the mother is not disqualified on account of unchastity or other vicious habits.
(5) The proper principle with respect to the age is that if the minor is of tender years, the custody of mother should be preferred; but if the minor especially a male has acquired an age requiring education and preparation or labour and business, then the father's custody should be considered as more suitable.
(6) On a consideration of sex, a female child should ordinarily be allowed to remain with the mother than with the father.
(7) The custody in which the minor had been prior to the controversy should not ordinarily be disturbed, if there are materials to show that the minor has reconciled to that custody and really disliked the change.
(8) Last but not the least important is the wishes of the minor, if a minor is of age to appreciate and express his intelligent preference in the matter of guardianship, his wishes should be respected.
4. These are useful guiding considerations, but they should not be treated as rigid formulae. A judge like a wise father should very carefully and anxiously weigh the various considerations and decide each application Oft the facts and circumstances of that case, so as to promote the welfare of the minor and select a guardian best fitted to assure the welfare of the minor and thereafter guide and control the guardian to ensure the welfare of the ward. The case may be judged in the light of the above principles.
5. In the present case the first two findings of the learned Judge are not very relevant. The omission on the part of the appellant to prove the bad character of his wife cannot be considered a conclusive fact making the father unfit to be the guardian of the minor son. In this case there have been allegations and counter-allegations and they remained unproved on either side and therefore nothing materially turns on the lack of proof on the part of the appellant to establish Daulat Kaur's bad character. Similarly, the finding that the respondent was turned out of the house does not deserve to be given weightage so as to consider the father of the child an unfit person. The manner in which the mother of the child is treated is no doubt afact to be considered; but it has to be considered along with all the circumstances and not individually.
6. The peculiar facts of this case which have escaped the consideration ot the learned Judge are:
That the minor has all along been in the custody of the father and there has been no proof of ill-treatment meted out to the minor. The statements of the witnesses produced by the respondent are hear-say and general, even the trial court was not prepared to place much reliance upon these statements.
The second fact is that the minor is so far the only son of Gurdeo Singh and further Gurdeo Singh is the only son of his parents. The minor is looked after by the grandmother whose warmth of affection has been clearly established in this case.
7. During the hearing of this appeal, it having been brought to my notice that the minor has become 9 or 10 years old and is in a position to express his preference. I called for the minor for interrogation and to ascertain the wishes of the minor. The minor was produced before me on 25-9-1959. His grandmother was also present. The minor displayed a great fondness for the grandmother who was found equally reciprocating. He in unambiguous terms expressed that he would wish to live with Gurdeosingh and not with Mst. Daulat Kaur.
While showing great attraction for his grand parents, he showed a good deal of aversion towards Daulat Kaur, his mother. At the suggestion of the respondent's counsel I gave Daulat Kaur permission to talk to the minor for five minutes in the absence of paternal grand-father and grandmother so as to enable her to impress upon the child her love and to secure reciprocity but the child was not prepared to talk to the mother and showed great resentment against her.
The child has reconciled himself to the present custody and has shown preference for continuance in that custody and on the whole I am satisfied that it was not a tutored or an unintelligent preference. There are further materials on record that the father of Daulat Kaur had been a patient of T. B. and that her mother is not altogether of sound mind. A consideration of these relevant facts and circumstances have induced me to believe that it will be in the interest of the minor not to disturb his present condition and in these circumstances it would not be desirable to maintain the order of the lower court.
8. I accordingly accept the appeal and set aside the order of the lower court and dismiss the respondent's petition under Section 25. In the circumstances of the case, I leave the parties to bear their own costs throughout.
9. In case Daulat Kaur wants to see the child, she will be permitted to see the child at the appellant's residence, who will provide all reasonable facilities to the respondent to see the child subject to proper safeguards against abuse.