J.P. Jain, J.
1. By the order dated 19.10.74 under appeal the District Judge, Jaipur City, deposed of two applications; one filed by Parmeshwar Sarup, father and other by Smt. Medhu mother of the minor girl Guddu alias Gyanwati, under the Guardians of Wards Act 1890. He dismissed the application of the father and appointed Smt. Madhu as the guardian of the girl in the interest of the minor.
2. Smt. Madhu submitted the application on 2.6.73 and it was registered as No. 93/73; where as the application of Parmeshwar Sarup was filed on 2.7.73 and registered as No. 87/73. Both these petitions were consolidated and tiled together. The admitted facts of the case are that the parties were married at Jaipur in November, 61. Out of this wedlock three Children were born. First son Surya Sarup was burn in 1963, second son Prakash Sarup was born in the year 1966 and the girl in question was born on 13.8.1968. Both the sons are living with the father, and there is no doubt with regard to their guardianship. For sometime the relationship between the parties were happy with the exception that there were some differences and they deserve no mention. The case of Parmeshwar Sarup is that Guddu alias Gyanwati was kidnapped from his house by the stricter of Smt Madhu with active connivance of their father Jagmohan Prasad Saxena. According to him Madhu had alrady left the house. He lodged the report in the police. The girl was produced in the Court of the Additional Munsif Magistrate First Class No. 3, Jaipur but she was handed over to the mother of the girl Smt. Madhu According to him Smt. Madhu is most unfaithful to her husband and she blindly follows her parents and this has created a wide gulf between the parties. He also alleged that Madhu has such ways of living which are disliked by him and the members of his family. He did not want the girl to remain in the company of the mother. He accordingly prayed that be should be declared and appointed as the guard an of the girl and the custody of the girl banded over to him. This petition was resisted by Smt. Madhu. Her allegations in the reply are substantially the same which she had stated in her application for the appointment of herself as the guardian of the minor girl. Her case is that she was a student of second year T.D.C. Science in Maharani College, Jaipur at the time of her marriage. She was not allowed to appear in the examination to prosecute her studies. She was teal treated at the time of her marriage and every time she was called bad names and they were equally used for her parents. Even at times she was beaten. The relations became all the more strained when Guddu was in her womb Her husband started suspecting her fidelity. She had reproduced some extracts from the two letters dated 29-1-68 and 17-2-68 addressed to her father. The second letter was also endorsed to her. The alleged remarks are set out below:
I--She is a very scheming girl and whenever I happened to live with her alone she made my life miserable.
II--We therefore, decided to bring back the two children on 19-1-68 leaving Madhu alone at your house.
III--Things have now come to a critical pass I cannot tolerate the presence of Madhu in my home at her sweet will.
IV--Under the circumstances I am convinced to the hilt that I can not be happy in the company of Madhu looking to her antecedents and your behaviour and she cannot feel happy in our house, as the cannot afford to make a good housewife. Any attempt to force us 10 unite is sore to prove instructions for bringing lasting peace with us. It is better if we part company amicably.
3. The extract from the second letter (Ex A/1) is as follows:
As regards your version that Madhu is pregnant I wonder why this fact was kept back from me or my mother when she was here. I have suspicion of my own and unless a satisfactory medical proof about the duration of the conception is forth coming I am unable to regard it as disgraceful.
4. The endorsement made for Madhu reads as follows:
Copy forwarded to Madhu, d/o Shri Jagmohan Prasad Saxena for information and for arranging voluntary separation, so that her ambition of becoming a society girl and wanting a decent living for her may be fulfilled.
5. On this ground she maintained that it will not be in the interest and welfare of the girl, to allow Parmeshwar Sarup to be appointed as the guardian of the girl She prayed to be appointed guardian of the girl. This petition was contested with almost the same allegations as stated by Parmeshwar Sarup in his petition.
6. In support of his contention Parmeshwar Sarup filed his affidavit., Smt. Madhu submitted her affidavit along with that of one Laxmi Narayan Patodiya She also entered into the witness box, as D.W. 1, and examined her father Jagmohan Prasad Saxena as D.W. 2 and Laxmi Narayan a tenant of her father as D.W. 3. The inquiry related to the following issues:
1. Whether it. will be conducive to the welfare of the child namely Miss. Gyanwati alias Guddu to keep her in the custody and guardianship of her father (the petitioner) in preference to that of her mother (the Non petitioner).?
2. Whether the Non-petitioner is a woman of bad character and it would adversely affect the up bringing of the child to keep her in her company.?
3. Whether the petitioner entertains doubt about the fidelity of his wife and parentage of the child Miss Gyanwati alias Guddu and on this account the petitioner does not deserve the custody and guardianship of the minor girl.?
7. As regards the issue No. 2 the learned Judge held that there was hardly any evidence to prove that Madhu was a woman of bad character and her company with the minor girl would adversely affect the minor's interest. The learned Judge referred to the document Ex. A/1 but he was of the opinion that the suspicion originally entertained by Parmeshwar Sarup vanished after the couple stayed together for a number of years. He accordingly found no force in the contentions raised by Smt. Madhu which resulted in framing of issue No. 3. Regarding issue No. 1 he held that it was more conducive to the welfare of the child if Guddu is allowed to stay with her mother. It took notice of the fact that she was taking good education in English Medium school and properly looked after by her mother. Parmeshwar Sarup has assailed this order.
8. On behalf of the appellant much stress was laid on Section 6 of Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as 'the Minority Act'). Reliance, has been placed on Clause (a) of Section 6. It reads as under:
Section 6--Natural guard an of a Hindu minor: The natural guardians of a Hindu minor, in respect of the minor's person as will as in respect of the minor's property (excluding his or her undivided interest in joint family property), are (a)--in the case of a boy or an unmarried girl the father, and after him, the mother provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
9. It has been urged that on the date of the order Guddu was more than five years of age and as such father alone is the lawful guardian of Guddu. It was further submitted that having regard to the circumstances of the case father cannot be held to be unfit to be appointed as the guardian of the minor girl. On the other hand, Mr. Saxena learned Counsel appearing for the respondent argued that on the day the applications were made the girl had not completed five years of age. He, however, placed reliance on Section 13 of the Hindu Minority Act which reads as follow:
Section 13--Welfare of minor to be paramount consideration (1) In the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor.
It has been urged by him that the welfare of the minor should be of paramount consideration in the matter of appointing the guardian of the minor girl.
Reference was also made on behalf of the appellant to Section 19 of the Guardians and Wards Act, which is extracted below:
Section 19--Nothing in this chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person--
(b) of a minor who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or
(b) ...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, or
(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.
Learned Counsel appearing for the appellant did not challenge the finding on issue No. 2 The principal question then, which arises before me, is as to what order would be the best for securing the welfare of the minor. With whom the child will be happy? And who is most likely to contribute to well being and look after her health and comfort The interest, well-being, health, education, and happiness of the minor ought to be the main and paramount consideration of the Court in selecting the guardian of person of a minor The Court is not so much concerned with the feelings of the parents with put the welfare of the in ant. From the provisions referred to above it is abundantly clear that the question of true welfare of the minor is of so much paramount consideration that the recognised rights of guardianship under the law to which the minor is subjected, must, if necessary, be assigned a relatively subordinate position.
19. The two documents referred to above are admitted. They clearly bear out the lurking suspicion in the mind of the father against legitimacy of the minor girl. It is true that the matter had been at rest as the parties lived together for a number of years but the relations had not improved. They clearly reveal that Parmeshwar Sarup does not feel happy with Smt Madhu and sunsets her as a society girl There is no evidence that this suspicion in his mind has completely disappeared. The tone of his letters clearly indicate his attitude towards Smt. Madhu. Smt Madhu has come in the witness box. She has explained as to how she is looking after her child. The girl at the moment is nearly six years of age. Her statement finds support by the testimony of Jagmohan Prasad Saxena and Laxmi Narain. Parmeshwar Sarup has not chosen to enter the witness-box. From the affidavit dated 20th September, 1973 (para 10) that he has filed, reveals that he has not forgotten the past and still thinks his wife as one of depraved morals. The allegations that the minor girl will not be properly looked after or her welfare, is not safe in the hands of her mother or that Smt. Madhu is of loose morals, is not proved As a matter of fact the allegation of kidnapping, his making a report in the police, the lurking suspicion that he has in his mind, makes him unfit for the present to be a proper guardian of the minor girl. Section 6 of the Hindu Minority Act. has to be read subject to Section 13 of the Hindu Minority Act, On behalf of the appellant the following authorities have been cited:
AIR 1961 Raj. 30, Gurdeo Singh v. Mst. Daulat Kaur.
AIR 1971 Mysore 69, Smt. Radha Bai v. Surendra K. Mudaliar.
AIR 1969 Delhi 283, Smt. Chander Prabha v. Prem Nath Kapur.
11. I read out these decisions with care. The principle laid down in these decisions is that the paramount consideration in the appointment of a guardian is welfare of the child and the matter has to be decided on the facts of each case. The same principle is found in the following decisions relied upon by the learned Counsel for the respondent:
: AIR1971AP134 , Vegesina Venkata Narasaian v. Chintalapati Peddi Raju
, Lalta Prased v. Ganga Sahai.
: AIR1975All67 , Smt. Ainunnisa v. Mukhtar Ahmed and Anr.
12. In deciding the case on merits I have kept the principle in view and I am firmly of the opinion that the interest and well being of the minor girl will be in the proper hands if she is allowed to stay with her mother. The finding of the learned Judge is accordingly confirmed.
13. In the result this appeal fails and it is hereby dismissed. In the circumstances of the case the parties will bear their own costs.