V.P. Tyagi, Actg. C.J.
1. This appeal of Smt. Gangabai is directed against the order of the District Judge, Udaipur, dated March 23, 1974, in Civil Misc. Case No. 69 of 1972, whereby the learned Judge directed that the custody of her minor son Kishanlal shall be returned by Smt. Gangabai, the mother of the boy, to his father respondent Bherulal. As regards the custody of the minor daughter Deu alias Bagdi, aged about 14 years, the learned Judge ordered that she would remain with her mother Smt Gangabai, appellant. That portion of the judgment has not been challenged by preferring cross-objection by Bherulal, respondent.
2. Bherulal was married to Gangabai on February 27, 1957, and out of this wedlock she gave birth to two children, namely, Deu alias Bagdi on January 1. 1962, and Kishanlal on March 2, 1965, They lived in an atmosphere of peace and amity upto 1968, when, it so appears that the relationship between the husband and wife became strained. An allegation was levelled against Bherulal that he had conducted a 'nata' marriage with one another lady Mst, Lehri and kept her as his wife. This marriage is alleged to have taken place on December 10. 1969. Before this marriage took place there were serious allegations of maltreatment meted out by Smt. Gangabai from her husband Bherulal. On September 19. 1968, it is said that Bherulal gave beating to Smt. Gangabai and forced her to leave his house and go to her parents' house with her two children. Bherulal filed an application under Section 9 of the Hindu Marriage Act, 1955, against Smt. Gangabai in the Court of District Judge, Udaipur, who after trial held that the allegations of Smt. Gangabai against Bherulal that he had kept Mst. Lehri as his 'natasud' wife were not substantiated, but it was proved that Smt. Gangabai was not properly treated and, therefore, it was difficult for the court to hold that Smt. Gangabai withdrew her society from her husband without reasonable excuse. In this view of the matter the petition filed by Bherulal was dismissed. Thereafter Bherulal again filed an application under Section 7 read with Section 25 of the Guardians and Wards Act before the District Judge, Udaipur, for the custody of his two minor children. The learned Judge, after inquiry, disposed of that application on March 23, 1974, holding that it will not be in the interest of the minor girl to transfer her custody to the father, but looking to the other circumstances the court was of opinion that it would be in the interest of minor Kishanlal that his custody may be transferred from the mother to the father. It is against this judgment that the present appeal is preferred by Smt. Gangabai,
3. On the basis of the Judgment of this Court reported in Gurdeosingh v. Mst. Daulat Kaur AIR 1961 Raj 30 it was urged that the wishes of the minor child must be given due regard while deciding cases of this nature irrespective of the fact whether there are some favourable points to allow the petition of the father for the custody of the minor male child. In view of this argument the child was summoned before the Court on July 1, 1975. Before the query was put to him it was urged on behalf of Bherulal that temporarily the custody of the child may be handed over to him so that he may not remain under the influence of his mother. The child was called in my chamber and in the presence of Bherulal and his learned counsel when he was asked as to whether he was ready to live with his father, the child expressed his unwillingness to go with his father. Bherulal was, however, allowed to have a free talk with Kishanlal, but the child refused to talk to him. When asked by the Court he expressed his intention to stay with his mother and refused to go with his father. It is in the light of this expression that I now propose to discuss the arguments advanced by the parties before me,
4. Learned counsel for the respondent urged that under the law lather is the natural guardian and he has a right to keep the custody of his minor children unless such a custody was not deemed proper for the welfare of the minor. Since the boy is a student and Smt. Gangabai is living with her parents, who are not in a position to maintain the entire expenses of Smt. Gangabai and her children, the custody of minor Kishanlal be transferred to his father for the sake of his proper education, as Bherulal is earning about Rs. 300/- per month, and, as such, he can spend a considerable amount on the education of the boy. These arguments of the learned counsel for the respondent were vehemently opposed by Mr. Mehta and submitted that Smt. Gangabai and her father are looking after the education of the boy and in support of their submission a certificate was placed on record saying that he was reading in third standard. The mark-sheet of Kishanlal for the annual examination of third standard from the State Primary School, Udaipur, was also placed on record to show that Kishanlal is making satisfactory progress in his study.
5. This Court in Gurdeosingh v. Mst. Daulat Kaur AIR 1981 Raj 30 has laid down certain principles to examine such applications for the custody of the minor children and it has been held,--
'Upon an application for custody of a minor a Judge, like a wise father, should very carefully and anxiously weigh the various considerations and decide each application on 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.'
6. These observations of the learned Judge casts a heavy duty on the Court while deciding such applications to consider the pros and cons of each and every circumstance and then judge whether it would be in the interest of the minor to keep his custody with the mother or the father. It is true that under the law the father is a natural guardian and he should not ordinarily be denied his natural right to keep his child with him, but if circumstances in a particular case compel the court to take a different view then simply because the father is the natural guardian the custody of the minor cannot be entrusted to him (father).
7. Let me now see whether under the circumstances of the present case, the custody of the minor child can be denied to the father. It is clear from the previous litigations between the husband and the wife that their mutual relations were strained and that Bherulal's treatment towards his wife Smt. Gangabai justify the withdrawal of her company from her husband. There is an allegation that Bherulal had kept another lady. Though that allegation had not been substanciated in that case, but it is not denied that there is no lady in the house of Bherulal to look after the minor child. Kishanlal is a child of 10 years, who needs constant vigilance at home, but in the absence of any lady in the home, he will not be attended by any one at least during the period of the day when Bherulal attends his job. It is contended by Mr. Mehta that at this tender age constant looking after by some elderly person is necessary and, therefore, it will not be in the interest to hand over the custody of Kishanlal to Bherulal.
8. It is contended that Bherulal is prepared to keep the boy in the hostel and defray the hostel expenses also. But in my opinion that alternative cannot be preferred to the care of the mother, who is prepared to spend for the proper education of the boy. Under Section 6 of the Hindu Minority and Guardianship Act, 1956, the natural guardian of a Hindu minor is the father. But Section 13 of the Act contains certain mandate of the Legislature for the Court that while appointing or declaring any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. Section 2, no doubt, lays down that the provisions of this Act shall be in addition to, and not, save as hereinafter expressly provided, in derogation of, the Guardians and Wards Act. It is contended by the respondent that the right of the father cannot be defeated unless he is declared unfit by the Court. In the opinion of the learned counsel for Bherulal, Bherulal is not unfit and, therefore, looking to this provision of the law and reading them together, this Court cannot, as argued by the learned counsel, deprive Bherulal of the custody of his minor child. This Court in Lalta Prasad v. Ganga Sahai AIR 1973 Raj 93 has held,--
'By virtue of Section 2 of the Hindu Minority and Guardianship Act, the Courts are obliged to read together and harmonise the provisions of Section 19 of the Guardians and Wards Act and of Section 13 of the Hindu Minority and Guardianship Act, construing them together the rigour of the prohibition contained in Clause (b) of Section 19 of the Guardians and Wards Act 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 Hindu Minority and Guardianship Act.'
Those observations of the learned Chief Justice clearly show that the paramount interest of the minor, while deciding the question of his custody, must weigh with the Court. No prohibition can be read in Section 19(b) of the Guardians and Wards Act and that unless it is declared that the father is incapable of maintaining his child, the custody of the minor cannot be entrusted to any other person. It is true that Bherulal is earning Rs. 300/- per month and he can very well look after the education of the child on which the future of the minor depends, but that factor alone is not sufficient to transfer the custody of the minor child to Bherulal. The education of the minor is being looked after by his mother and his maternal grandfather also and the report coming from the school shows that he is progressing well. The minor child on account of his custody with his mother is not suffering in any manner and is progressing well in his studies. The Supreme Court in Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090 has held that there is a presumption that a minor's parents would do their very best to promote their children's welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children. From this point of view, in case of conflict or dispute between the mother and the father about the custody of their children, the approach has to be somewhat different from that adopted by the Letters Patent Bench of the High Court in that case. The father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor child in the context of all the relevant circumstances that have been brought on the record. If the custody of the father cannot promote the welfare of minor equally or better than the custody of the mother, then, he cannot claim indefeasible right to the minor's custody under Section 25 merely because there is no defect in his capacity to look after the minor.
9. It is true that this fact has not been established in the previous litigation between the husband and the wife that Bherulal had kept Mst, Lehri as his 'natasud' wife, but the charge was very much there. In the present litigation there is an affidavit filed by Mst. Lehri which supports that charge, but that has not been considered by the Court because she had not been produced before the Court for cross-examination. No doubt this Court cannot look into that affidavit as a piece of evidence, but the allegation of the mother of the minor against her husband is very much there that he is not a clean man. In such circumstances it will be in the interest of the minor boy that he is allowed to remain with the mother where he would find better moral atmosphere.
10. With these considerations I allow the appeal of Mst. Gangabai and set aside the order of the court below and direct that the custody of Kishanlal shall remain with her mother.
11. No order as to costs.