1. This is a D. B. Special Appeal by Snehlata from the order, dated November 29, 1978, made by Kasliwal J. in Misc. Civil Appeal No. 104 of 1978, affirming the order, dated, March 30, 1978, made by the District Judge, Jaipur City in Guardianship Case No. 46 of 1976, allowing the application of Mahendra Narain under Section 10, Guardians and Wards Act, 1890 (for short, the Act of 1890) and consequently appointing Mahendra Narain as guardian of his minor daughter Mona, and directing the return of Mona to his custody.
2. The facts which are not in dispute may be shortly stated here. Mahendra Narain and Snehlata, the contesting parties, were married according to Hindu rites on January 19, 1971. Their relations became strained soon after the marriage. A female child, named Mona, was born in the wedlock on January 26, 1972. The husband obtained dissolution of the marriage by a decree of divorce on March 9, 1978. Earlier in 1972, the wife had made an application under Section 552 of the Code of Criminal Procedure 1898 for restoration of the custody of Mona to her. The husband restored the child to her in the presence of the Magistrate concerned on June 22, 1972.
3. Mona resided with her mother till November, 1974 when the motherwent to England for studies for the degree of M. R. C. P. Except for a short visit to India in March, 1976, the mother has throughout been residing in England from November, 1974 to day. She is expected to conclude her studies abroad and return to India in November, 1979. In the mother's absence from India, the child has been and is in the charge of the mother's parents at Jaipur all these years. She is studying in the M. G. D. School Jaipur.
4. On March 17, 1976, Mahendra Narain made an application styling it to be an application under Section 10 of the Act of 1890 for his appointment as guardian of Mona. He complained that the mother (Snehlata) who had removed Mona from his custody on the plea that the child needed motherly love and care had left her in the charge of her parents at Jaipur and gone abroad. He pleaded that since the mother had abandoned the child he was desirous of obtaining her custody so that he could raise the child and give her education according to what he considered was in the best interest of the child. He added in this context that help of his own mother was available to him in his house for looking after the welfare of this child. He pleaded that since the child had already crossed the age of 4 (she has since crossed the age of 7) he was entitled to her custody. He repeated that, under the circumstances, the only way to ensure the welfare of the child is to order her return to his custody. It was on these averments that he prayed for the relief of his appointment and declaration as guardian of this minor.
5. Snehlata, the mother, admitted that she had obtained custody of the minor from Mahendra Narain on June 22, 1972, that she had gone to England in November, 1974 leaving the minor in the charge of her parents at Jaipur and that she had been residing in England all these years. The mother, however, pleaded that she had been making regular remittances to the child for her maintenance and support and that the child is by now very much attached to the mother's parents with whom she is residing continuously since the mother went to England for higher studies. The mother added in this context that it would not be in the interest of the child to uproot her from the mother's parents' house and compel her to live with the father andhis parents in their house. According to her, the father's mother is in the habit of taking alcoholic drinks and therefore, it would not be good for the child to be left in her care. She accused that the father is carrying on illicit relations with a woman, named Jyoti, and that he has no love or affection for the minor. She pleaded that since June 22, 1972, when the child was restored to her custody, the father has not cared to send any money for the child or to come and see the child.
6. After hearing evidence produced by the parties, the learned District Judge came to the conclusion that the father of the minor is not unfit to be guardian of her person. He rejected as unsubstantiated the wife's allegations that the father is in the habit of taking alcoholic drinks. He was, however, willing to accept that the father's mother takes alcoholic drinks occasionally, but this fact did not, in his opinion, warrant the allegation that the environment in the father's house was not conducive to the proper upbringing of the minor in that house. The learned District Judge agreed that the father had written two letters to the mother in August and September, 1972, taunting her that since she had left him he would be free to move about openly in the company of his girl friend Jyoti, and that he would have thereafter, nothing to do with her or with her daughter. In the assessment of the learned District Judge, these letters were written by an angry husband to his wife, who, in the husband's opinion, had deserted him and ruined the matrimonial home. The learned District Judge felt that Jyoti is a fictitious person and that this name was mentioned by the husband to scare the wife into rushing back to the matrimonial home to protect it from intrusion by another woman. The learned single Judge agrees with the learned District Judge in the letter's reading of these letters. He has endorsed the finding of the learned District Judge that the father of the minor is not unfit to be guardian of her person. There is no compelling reason why we should depart from this concurrent finding of fact arrived at by the learned District Judge and the learned single Judge.
7. Mr. Bhargava, learned counesl for the mother, then contended that if the father is found fit to be guardian of the minor, Section 19(b) of the Actof 1890 would bar his formal appointment as guardian, and, as such, his application under Section 10 of the Act of 1890 for formal appointment as guardian deserves to be dismissed on that ground alone. It is true that Section 19(b) lays down that nothing in Chapter-II, which deals with appointment and declaration of guardian, shall authorise the Court to appoint or declare a guardian of the person of a minor whose father is living and is not in the opinion of the Court unfit to be guardian of the person of the minor. Mr. Bhargava's argument is that since, in the opinion of the Court, the father of the minor in the instant case is not unfit to be guardian of her person, the court has no jurisdiction to formally appoint or declare the father to be guardian of her person.
8. We have quite carefully considered this argument and find that it is supportable on the basis of a few rulings, especially those which were handed down by some of the High Courts prior to the enactment of the Hindu Minority and Guardianship Act, 1956 (for short, the Act of 1956). It was for example held in Govind Singh v. Ram Prasad, AIR 1935 All 838, that as long as the father of a minor is alive and is not proved to be unfit to be guardian of the minor the court cannot make an order appointing him or anybody else as guardian. It is, however, significant to note that notwithstanding the fact that the application made in the cited case was by the father for an order of his appointment as guardian of his minor daughter, the court treated the same to be an application for custody and granted the custody to the father. Similarly, in Mr. Richard v. Mrs. Richard, AIR 1955 Mad 451, the Madras High Court held that if the father makes the application for guardianship for the purpose of obtaining the custody of the child from another, the application will be treated as one under Section 25 of the Act of 1890. Later, in Kumaraswami v. Rajammal, AIR 1957 Mad 563, the Madras High Court added a new dimension to this trend of thinking and held that when the more comprehensive right of guardianship is asked for by the mother but is not given it, as the evidence on record is not sufficient to do so, the lesser relief of custody could always be granted if the same is justified OB the evidence,
9. After the commencement of the Act of 1956 the Punjab High Court adopted a new approach to the problem in the light of the provisions of that Act. It expressed the view in Rattan Amol Singh v. Kamaljit Kaur, AIR 1961 Punj 51, that by virtue of Section 2 of the Act of 1956, the Courts are obliged to read together and harmonise the provisions of Section 19 of the Act of 1890 and Section 13 of the Act of 1956, and that if so read the rigour of the prohibition contained in Clause (b) of Section 19 of the Act of 1890 must be considered to have been relaxed to a great extent in the interest of the minor's welfare as laid down in Section 13 of the Act of 1956. The Punjab High Court appointed the mother as guardian of his person without recording a finding that the father who was alive, was unfit to be such a guardian. Quoting with approval the ratio of the Punjab case, even this Court, in Lalta Prasad v. Ganga Sahai, AIR 1973 Raj 93, speaking through Jagat Narain, C J. affirmed the appointment by the District Judge of the grandfather of a minor as the latter's interim guardian without recording a finding that the father was unfit to be appointed as such. This view is based on Section 13 of the Act of 1956 which lays down that in the matter of appointment of a guardian of a minor the welfare of the minor shall be the paramount consideration. Paramountcy necessarily implies that all other considerations are subordinate to the welfare of the minor. This means that the consideration that the father is not unfit to be the guardian of his child is also a consideration subordinate to the welfare of the minor. In other words, this consideration may have to be cast aside in a case demanding the formal appointment of a guardian of a minor for his betterment and welfare. We can quite easily visualise a case in which a father may not, strictly speaking, be unfit to be guardian, but may nevertheless be not so fit as to ensure the welfare of the minor as effectively as someone else. In such a case, the Court would be justified in invoking the doctrine of paramountcy of the welfare of the minor as enacted in Section 13 of the Act of 1956 and in formally appointing guardian of his person without recording a finding that the minor's father is unfit to be his guardian. We may, however, hasten toadd that such a contingency would be very rare indeed, and, if and when it really arises, the Court will not hesitate to do its duty towards the minor and act in a manner so as to ensure his welfare.
10. In a way, there is not much difference, in substance, between an application for guardianship under Section 10 of the Act of 1890 and an application for custody of the ward under Section 25 of the said Act. In' either case, the issue for decision before the Court would be whether the relief prayed is in the welfare of the minor. Now if we look at the form of the application in the instant case, it is apparently an application under Section 10 of the Act 1890 for appointment of the petitioner as guardian of his minor daughter Mona. If, however, we read the text of the application we find that in substance the father has made this application for guardianship for the purpose of obtaining the custody of the child from the mother, and this is, indeed, how the parties concerned and the Courts have throughout understood it to be. The petitioner (i.e. the father) asserted again and again in different paragraphs of the application that he wanted the child to return to his custody so that he could bring her up and give her education according to his own standard. The respondent (i.e. the mother) was equally clear in her mind that the purpose of the petitioner in instituting proceedings under the Act of 1890 was to obtain the custody of the child. She opposed the application believing that the return of the minor to her father's house would not be in her interest and welfare. In paragraph 5 of the memorandum of first appeal, she pleaded that the petitioner had filed the application under Section 10 of the Act of 1890 for, as she put it, 'his appointment as guardian of the minor girl with the object to obtain her custody from Dr. Snehlat'.
In substance, therefore, the present application was filed by the father of the minor to obtain her custody from the mother and this is a position which was clearly understood by the mother from the very beginning of this litigation. It was perhaps for this reason that she did not plead the bar of Clause (b) of Section 19 of the Act of 1890 in her written statement filed before the District Judge. She cannot now be heard raising technical and procedural plea for the first time in special appeal.
11. We have, therefore, no hesitationto conclude that this application which purports to have been filed under Section 10 of the Act 1890 for guardianship is, in fact, an application under Section 25 of the said Act for custody of the minor. In proceedings under the Act of 1890, which involve administration of the affairs of a ward, the Judge exercises what is generally called a parental jurisdiction delegated to him by the State and, in exercising such jurisdiction, he cannot afford to be overly concerned with strict observance of the technicalities and the forms of the law of pleadings. If the pleadings contain enough material to give notice to the adversary as to the exact nature of the relief which the petitioner seeks in substance the form in which such relief is sought need not be of much consequence.
12. As laid down in Section 6 of the Act of 1956, the father is the natural guardian of a Hindu minor in respect of the minor's person as well as his property. This is, however, subject to the proviso that the custody of a minor who has not completed the age of five years shall, ordinarily be with the mother. The father as the natural guardian in the instant case did not therefore, require his appointment as a guardian of his minor daughter Mona. His object in making the application which he wrongly described as an application under Section 10 of the Act of 1890 was to obtain the custody of the child.
13. Turning now to the question of custody, the father would not be entitled to it merely because he is the natural guardian. It is well established that the right of a father as a natural guardian to the custody of his minor child is not an indefeasible right in law; it is circumscribed by the consideration of the benefit and welfare of the minor. In a contest for custody between the father and the mother of the minor, it is quite often a matter of some difficulty to decide as to whether the welfare of the minor lies in giving the minor's custody to the father or to the mother. But, if the contest is between the father and some person other than the mother, the position of the father from the point ofview of the welfare of the minor isclearly preferential. But here again itwill be open to the person challengingthe right of the father to the custodyof a minor to satisfy the Court that thewelfare of the minor lies in keepinghim away from the custody of thefather. The burden of proof on suchperson would be very heavy, for thecourt will require very strong reasonsto interfere with the father's right tocustody,
14. Applying the above criterion to the facts of this case, we find that, here, the contest for custody is between the father on one side and maternal grand-parents on the other, for it is the admitted position of the mother that the child has been in the physical custody of her grand-parents for the last 5 years, though the claims that she still has the constructive custody. It is obvious that the so-called constructive custody of the mother cannot be of any use to the child from the standpoint of her welfare. The child cannot possibly appreciate the metaphysical custody of the mother. What she can and does understand is that she is in the physical custody of her maternal grand-parents. The court has, therefore, to choose between the father on one side and the maternal grand-parents on the other to find out who can better ensure the welfare of the minor. The mother has failed to prove that the maternal grand-parents of the child are better placed than the father from the point of view of the welfare of the child. It is submitted that the mother is expected to return to India in November, 1979, and that she would then be looking after the welfare of the child personally. We cannot reverse the decision of the guardian judge, as affirmed by the learned single Judge, depending upon the off-chance of the monther's return to India sometime an the future. We are of the considered opinion that the father as the natural guardian must be given a chance, in the absence of the mother, to keep the child in his parental custody. Ordinarily, there is no substitute for parental love and care so far as a child of tender years is concerned. Mona must therefore, return to the custody of her father in the interest of both of them If and when the mother returns, it will be open to her to make application for custody of this child. This is because, the doors of a guardian Court are always open for those who aregenuinely interested in the welfare of the minor, and if the Court is' satisfied that the welfare of the minor requires a change of custody, it will not hesitate to pass appropriate orders in that behalf.
15. Some argument was raised by Mr. Bhargava that the child is quite happy with maternal grand-parents and that she has expressed her pre-ference for their custody. Undue importance need not be attached to the so-called preference of the child, for a child of 6 or 7 years of age cannot be expected to form an intelligent preference. We are satisfied that this little girl will be equally happy, if not more, in the custody of her father, once she returns to him and gets to know him.
16. For all these reasons, we find no force in this appeal and dismiss it as such. We direct the respondent Snehlata and her agents in India to hand over Mona to Mahendra Narain, the father, in the Court of the District Judge, Jaipur City, in the presence of the presiding officer on July 31, 1979, failing which they shall run the risk of being dealt with for contempt of Court. If the child is not restored to the custody of Mahendra Narain within the prescribed period, the District Judge shall take immediate steps according to law, to enforce this order and cause the child to be delivered into the custody of Mahendra Narain.
17. We leave the parties to bear their own costs throughout.