(1) This is an appeal under Section 47, Guardians and Wards Act against the judgment and order of the Senior Subordinate Judge of Mahasu dated 29-9-1951 dismissing the application of the appellant Surat Bam under Section 25 of the Act for the custody of his minor son Balak Bam.
(2) The contest in this case is between the father and the mother of the child, named Mt. Nardu. I have heard earned counsel for the parties and am of the opinion that the decision of the Court below should not be interfered with.
(3) As the wordings of Section 25 of the Act themselves show, it is the welfare of the minor which is to be the main factor in deciding the question of its custody. There is no doubt that as between the appellant and the respondent the former has the preferential right not only to his appointment as guardian of the person and property of the minor, wherever any such question arises, but also to the custody of the minor. In some cases the mere fact of his bearing such relation to the minor may by itself lead to the conclusion that it is in the interest of the minor that it should return to his custody. There may be other cases, however, where inspite of that relationship it may not be for the welfare of the minor to return to his custody. And where the contest, as in the present case, is between a father and a mother, the advantage which the former has over the latter by reason of his right as a natural guardian cannot by itself be a determining factor, and in such a case the question of the welfare of the minor assumes much greater importance. The facts and circumstances of this case have to be taken into consideration in order to see whether it is in the interest of the minor Balak Ram to return to the custody of the present appellant.
(4) The facts which are not in dispute in this case are the following. The appellant and the respondent were married about 16 years ago. It appears that there was one other son born of this union, but he died. The minor in question was born on 35th Phagun 2002 B., so that at the time of . the filing of the present application he was about 5 years and 7 months old, and his age at the present moment is 6 years and 9 months. There is nothing to show that the relations between the parties were anything but normal until the appellant married a second time. This second marriage appears to have taken place when the minor was about a year and half old, i. e. sometime in the year 1948. Thereafter the relations between the husband and the wife became strained, and this was presumably due to the fact of the second marriage.
The appellant had to file against her a suit for restitution of conjugal rights in December 1950, His allegation is that about 13 months before his filing that suit, i. e. about November 1949, she left him with the child. The suit resulted in a compromise decree and Mt. Nardu returned to the appellant and lived with him for about a month. She however again left him on 5-3-1951, taking the child away with her. She has since been living with her parents and latterly with her mother at Simla. Mt. Nardu has admittedly no independent means of livelihood, but she and the child are being maintained by Mt. Nardu's mother who is carrying on the business of selling milk at Simla. The present application was made on 23-4-1951. The petitioner is a forest-guard getting Rs. 60/- p m. His parents are alive and they live in the ancestral home in village Hariawan, Tehsil Arki. The appellant's second wife along with four children born of this second marriage live with him.
(5) The Court below has found, and the findings have not been challenged, that the appellant is not a man of immoral character and that he is able to support the minor. That Court has however dismissed the appellant's application on the ground that it is impossible to find an adequate substitute for a mother for the custody of a child of tender years, and consequently the mother is preferable to the father. That Court has therefore held that it is not for the welfare of the minor Balak Ram that he should return to the custody of the appellant. At the same time, that Court provided that the appellant should be entitled to have access to the minor, the method of regulating access being left to the parties themselves. The Court also laid down that in case she appellant ever found that the minor was not being properly cared for or educated, it would be open to him to make a proper application to the Court. The Court below has however not discussed 'in extenso' the various factors appearing on the record, although the same may have weighed with it in passing the aforesaid order. If it were merely the tender age of the child, I would have found it difficult to uphold the decision of the Court below. There are however the following circumstances which are undisputed, and which, in my opinion, support the finding of the Court below that it would not be for the welfare of the minor, at least at the present stage, that he should be made to return to the appellant.
(6) The first and foremost circumstance is that the appellant has married a second time, and that on account of this second marriage the relations between him and his first wife, Mt. Nardu, became strained. This second marriage took place about four years ago, and except for a short period of about a month or so Mt. Nardu and the minor have been living away from the appellant ever since. In other words, ever since the minor was about 2 years and 9 months old he has not been living under the same roof with his father, the present appellant. On the face of it, therefore it cannot be for the welfare of a minor aged only 6 years and 9 months to be taken away from the tender care of his own mother and placed under the same roof with a step-mother and stepbrothers and sisters. There can be no two opinions as to the fact that as between a real mother and a step-mother the welfare of a minor is safer in the hands of the former. In fact, the treatment of a step-mother towards her step-child is notoriously so bad that it might even be said that, unless the circumstances make it otherwise obligatory, the welfare of the minor demands that it should not be placed in her custody. Of course, it is the appellant, the minor's own father, who prays for the custody of the child and not the step-mother. But it goes without saying that to allow the appellant's application would be virtually to place the minor in the custody of the step-mother, for the exigencies of his service would necessitate the appellant's living mostly away from the house, and the looking after of she minor would therefore naturally devolve upon the step-mother.
(7) It is noteworthy that there is no allegation on behalf of the appellant that the child is not being properly looked after by its mother. In this connection the learned counsel for the appellant argued that the onus lay on the respondent to prove that the welfare of the minor will be better served if it is allowed to remain in the custody of the mother. He cited -- 'Atchayya v. Kasaraju Narhari', A. I. R. 1929 Mad. 81, in support of this proposition. There is no doubt that in that case also the father, who was the petitioner under Section 25, had married a second time, but it is noteworthy that the contest lay between him and the maternal grandfather of the minor, and that the minor's mother was dead.
Now, as between a father and a maternal grandfather of a child the position of the former from the point of view of the welfare of the minor is clearly preferential. That cannot however be said to be the case where the contest with regard to the custody of a child of tender age lies between its father and mother, as in the present case. And when that is the case, the welfare of the minor in remaining in custody of the mother is so patent that the onus in question would really lie upon the father who wishes to take it away from the custody of the mother, especially where the father has married a second time.
As observed in this ruling itself, the decision of the question whether it would be for the welfare of the child to return to the custody of its guardian must depend entirely upon the circumstances of each case. In the present case therefore it was for the appellant to show that there existed any circumstance which would lead to the conclusion that it was not for the welfare of the mother that it should be allowed to continue to be in the custody of its mother. That, as I have already stated, the appellant has failed to show. That being so, it would rather go to show that the reason why the appellant wants to obtain the custody of the minor is not so much the welfare of the minor as a desire to spite the minor's mother for not coming back and living under the same roof with him and her co-wife.
(8) In the view that I have taken of the matter I find support from a number of rulings cited by the learned counsel for the respondents. These are -- 'Bai Tara v. Mohanlal Lallubhai', A. I. R. 1922 Bombay 405, -- 'Sarswathibai v. Shripad', A. I. R. 1941 Bom 103 and --' 'Sushila Ganju v. Kunwar Krishna', A. I. R. 1948 Oudh 266. The first two rulings have been referred to and relied upon in the last, and I cannot do better than cite the following observations of Kidwai J. in the last mentioned rulings:
'In making this choice it is not the right of the two parents that will determine the decision of the Court nor even who is at fault for the present sorry state of affairs but what, in the circumstances of the case as they actually exist, is for the welfare of the minor'.
'Then we have the fact that the father has married again and the minor consequently has a step-mother. A Hindu may have several wives and, in the circumstances of the. present case, Mr. Kunwar Krishna cannot be blamed for having married again after all his attempts to persuade his wife to return had failed & he had waited for her for about four years. It is also true that a step-mother may well look after her step-children better than the real mother. Nevertheless this is the exception rather than the rule.'
(9) All these were cases where the contest with regard to the custody of the minor lay between the father and the mother. It is also to be noted that the age of the minor boy in the Oudh case was 13 years and in the Bombay case 7 years. The learned counsel for the appellant, on the other hand, cited the following rulings. The first was -- 'Soora Reddi v. Chenna Reddi', AIR 1950 Mad 306. In the first place, that was a case under Section 17 of the Act for appointment of a guardian, and not one under Section 25 for the custody of the minor, in which latter case the only consideration which has to weigh with the Court is the welfare of the ward. Secondly, the contest did not He between a father and a mother, the latter having died immediately after the birth of the child, but between him and his elder brother and sister's husband. The advantage therefore lay distinctly with the father from the point of view of the welfare of the minor. The next ruling cited by him was -- 'Mir Mahomed Bahauddin v. Mujee Bunnisa Begam', AIR 1952 Mad 280. That was again a case of appointment of guardian, and, moreover, the mother of the minor had been divorced and had married a second time thereafter. That being so, the choice lay between a step-father on the one side and a step-mother on the other. The same remarks apply to two other rulings cited by the learned counsel for the appellant, i.e. --'Mt. Basant Kaur v. Gian Singh', AIR 1939 Lah 359 and -- 'Abubacker v. Mariyumma', AIR 1948 Mad 110.
(10) Another case cited by the learned counsel for the appellant was -- 'Khundi Devi v. Chote Lal', 44 All 587, but, as specifically remarked in that case, there was no circumstance adduced against the father which could show that the welfare of the minor would suffer by its being placed in his custody. In -- 'Zaw Maung v. Maung Hla Din', AIR 1934 Rang 49 (1), the contest of the father did not lie with the mother of the minor, she being dead, but with a man with whom she had been living. Here again, the welfare of the minor in being put into the custody of its father was patent on the face of it. In --'Sukhdeo Rai v. Ram Chander Rai', 46 All 706, also the contest lay between the father and two of the mother's father's relations of the minor, and not with the mother who was dead. It is clear therefore that the facts and circumstances of the cases relied upon by the learned counsel for the appellant were clearly different. And even in those cases the guiding factor was always described as the welfare of the minor.
(11) Lastly, it was argued by the learned counsel for the appellant, on the authority of --'Jwalaprosad v. Bachulal', AIR 1942 Cal 215, that a time limit should be fixed by this Court after which the minor may return to the custody of the appellant. That was however a case where the District Judge had already fixed a period of 1 1/2 years after which he directed that the minor Should return to the custody of the father, & this order was maintained by the High Court as a reasonable one. In that case the minor was 8 years old, so that if the same criterion were to be applied here a direction would have to be given that the minor should return to the appellant about 2 1/2 years hence. I do not however think that any particular age can be fixed as the proper one of the return of a minor to the custody of his lawful guardian, for each case must be decided according to its own facts and circumstances. These circumstances may be the health of the minor and his general physical and mental growth, about none of which could anything be said at present with certainty. These are matters which can properly be decided only if and when the present appellant moves the Court again for the custody of the minor. One circumstance which might entitle the appellant to move the Court again for the custody of the minor can be that the minor is not being properly cared for or educated, as already provided for in the decision of the Court below. I am therefore unable to accede to the request of the learned counsel for the appellant that a time limit, for the return of the minor to the appellant's custody should be fixed in this case.
(12) The appeal is dismissed with costs and thejudgment and order of the Court below areaffirmed.