A.S. Anand, J.
1. This appeal is directed against the judgment and order dt. 18-2-1982, passed by District Judge, Anantnag, in an application under the Guardians and Wards Act. The application was filed by the father of a minorchild Jahangir Ahmad seeking custody of the minor and for a declaration to the effect that he is the guardian of the child and for his appointment as such a guardian. The mother of the child not only resisted the application but also prayed instead that she be declared and appointed as the guardian of the minor and the custody of the minor be got delivered to her The learned District Judge vide impugned judgment and order dt. 18-2-1983. dismissed the application of the father and granting the prayer of the mother appointed her the guardian for the person of minor Jahangir Ahmad. The custody of the minor was also directed to be delivered to the mother. The father is aggrieved of the order and hence this appeal.
2. The brief facts leading to the present litigation are that the parties (appellant and respondent No. 1) lived as husband and wife for a number of years and a son Jahangir Ahmed wa.s born out of the wedlock. According to the father, Jahangir Ahmad was born on 1-1-1975, while according to the mother Jahangir was born on 1-7-1977. The relationship between the parties, later on, became strained. The father Mohd. Ramzan Magrey, married another woman and the mother, Mst. Taja, left her matrimonial home and went to live with her parents at Noorpora. The minor child was living with the mother but was, later on, taken away by the father to Magreypura on 30-4-1981, the father filed an application under Section 17/25 of the Guardians and Wards Act praying for being appointed the guardian of the minor child and for his custody. The mother and her parents were arrayed as respondents in the application. They resisted the application and also filed a counter application for the appointment of the mother as the guardian of the minor and for the custody of the minor. The parties were directed to lead evidence in support of their respective contentions. The father examined Abdul Rashid Magrey, Assad Ullah Magrey. Ghulam Hassan Wani, Gani Bhat, Salam Ganai and Abdul Rehman Wani. He also appeared as his own witness. The respondents, on the other hand, examined Gaffar Dar Mohd. Hussain Bhat and Sona Sheikh. The mother also appeared as her own witness.
3. The theme song of the evidenceled by the father through his witnesses named above is that they knew the parties and that the minor-Jahangir is about 7 years old. That he goes to School. That the father can look after the minor better than the mother, who is living with her parents. That the minor was living with his father, who was looking after him. Abdul Rehman Wani witness, however, admitted in his cross-examination that the minor was living with his mother at Noorpora when the father brought him from there about 1 1/2 years ago.
4. According to Mohd. Ramzan Magrey, the appellant herein. Mst Taja is his wife and that even if she comes to him now, he would look after her and rehabilitate her as his wife. That he is keen to bring her back to the matrimonial home. That about 7 years ago Jahangir was born at Noorpora. That for the last about 2 1/2 years the child is living with him. That Mst. Taja has been living away from him for the last about 2 1/2 years. That she went away with her father leaving the minor in his custody and has not returned ever since. To quote the appellant in his own words:--
'Wah Noorpoora men paida hua aur sath Taja takariben 2 1/2 sal se alag rah rahi hai aur Bache ko Walid ke pas chhod kar apne Baap ke sath chali gai aur wapas na ayi.'
5. Gaffar Dar, the first witness appearing for the mother deposed that the relations between the parties had got strained because Ramzan Magrey had married another woman. That the minor child was born at Noorpora at the parental house of the wife and that Ramzan Magrey took away the child against the wishes of the mother from Noorpora.
6. Ghulam Hussan Bhat also deposed in the like tone and corroborated the testimony of Gaffar Dar.
7. Sona Sheikh was examined by the mother to prove the date of birth of the child. The witness is the Chowkidar of Noorpora. He produced the Chowkidari register relating to births. At serial No. 231031 dt 1-7-1977 an entry exists according to which a son is shown to have been born to Taja at Noorpora. The name of the father of the child, as entered in the register, against the said entry, is Mohd. Ramzan Magrey resident of Magreypora.
8. Mst. Taja, appearing as her own witness, stated that out of her wedlock with Mohd Ramzan Magrey, Jahangir Ahmad was born. That about 2 years ago Ramzan Magrey married second time. She then left the matrimonialhome and since then she is living with her parents at Noorpora. That her father is looking after her. That later on, Ramzan Magrey took away Jahangir from her house without her consent and that ever since then the child is at the mercy of his step mother. That she wants to look after the child herself for whom she has natural love and affection. That her father is prepared to meet expenses for the up-keep of the child. That the child was born about 5 years ago (prior to the recording of her statement). That the birth of the child was got recorded in the birth register of the Chowkidar of Noorpora. Rest of her evidence is not really material for the disposal of this appeal and need not be reproduced.
9. This is the entire evidence in the case.
10. From a perusal of the aforesaid evidence, it transpires that the minor child Jahangir Ahmad (alias Prince) was born on 1-7-1977 and an entry of his birth stands recorded in the Chowkidar's register at Sr. No. 231031 dt. 1-7-1977. The assertion of the appellant that the child was born on 1-1-1975 has not been established. Though the father and all his witnesses deposed, in a parrot-like manner, that the child was going to school yet no certificate was produced from the school to show the date of birth of the child. No teacher was examined from any school either to corroborate the testimony of these witnesses that the child was going to School. The appellant produced no documentary evidence in support of the date of birth, as given by him and the oral evidence produced by him is of no value for none of those witnesses belong to Noorpora or were present at the time of the birth of the child. The Chowkidar, Sona Sheikh, who produced the Chowkidari register, was not at all challenged in cross-examination when he gave the date of birth of the child. In the face of his evidence which corroborates the statement of the mother it stands established that the child was born on 1-7-1977 and not on 1-1-1975, as alleged by the appellant. By giving the date of birth of the child as 1-1-1975 the appellant father was obviously attempting to make the child above the age of 7, perhaps in view of the position in the personal law but this attempt has failed.
11. Again, the attempt of the father made, in his statement, to show that the mother had left the child in his custody herself and gone away to live with herparents, was presumably done by him to show that the mother did not care for the child so as to create an impression on the mind of the court that the mother has no love for the child. This attempt has also aborted Not only the evidence of the mother and her other witnesses show that the appellant took away the child from Noorpora, against the wishes of his mother, but the appellant's own witness. Abdul Rehman Wani, also admitted in his cross-examination that the appellant had brought Jahangir Ahmad from Noorpora. The appellant. thus, stands contradicted on this aspect by his own witness and it stands established that Jahangir Ahmad was not left by Mst. Taja in the custody of Mohd. Ramzan Magrey, but that he brought the child from Noorpora, without the consent of the mother.
12. Mr. Hagroo. learned counsel for the appellant has urged that even if the child was born on 1-7-1977, the father is his natural guardian and keeping in view the welfare of the minor, the court below was not justified in refusing the guardianship and custody to the father. Argued the learned counsel, that the mother has no source of income as she herself lives on the doles of her father and, therefore, she did not possess the capacity to look after the minor and the court below was not justified in declaring the mother to be the guardian and entrusting the custody of the child to her. It was further urged that the court below was not justified in presuming that the parties were governed by Hanafi Law and that it should have been investigated by the court below as to which school did the parties belong to before applying the principles of Hanafi Law. Learned counsel then submitted that for the last about 2 years the child has been living with the father and that the preference of the minor should be given due weight and, since the minor has expressed his wish to live with the father, it should not be ignored.
13. Mr. Z. A. Shah, learned counsel for the respondents has on the other hand urged that welfare of the minor has been given supremacy, for determining the question of his custody and that the welfare of a minor of about 5 years of age can be more safe in the hands of the mother rather than in the hands of the father who has taken another wife. According to Mr. Shah, a mother ordinarily cannot be deprived the custody of her minor son only on the ground thatshe does not have independent financial resources because the obligation of the father to maintain the child born out of the wedlock is not dependent upon the fact that the child must be in the custody of the father and that the obligation extends to all cases wherever the minor child is living as long as the minor cannot support himself.
14. Before proceeding any further, it would be advantageous to first notice the relevant provisions of Sections 7, 17 and 25 of the Guardians and Wards Act. These read as under :--
'7. (1) Where the court is satisfied that it is for the welfare of a minor that an order should be made:--
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such aguardian, the court may make an orderaccordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the court an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.'
'17. (1) In appointing or declaring the guardian of a minor, the court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the court may consider that preference.
(5) The court shall not appoint or declare any person to be a guardian against his will.'
'25. (1) If a ward leaves or is removed from the custody of a guardian of his person, the court, if it is of opinionthat it will be for this welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the court may exercise the power conferred on a Magistrate of the First Class by Section 100 of the Criminal P. C.
(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.''
15. A bare reading of Section 25 shows that this section has no application unless it is shown that the ward has left or has been removed from the custody of his or her guardian. The expression 'Guardian' in this section is used in a wider sense and does not necessarily mean a guardian appointed or declared by a court. As a matter of fact, the expression guardian in this section includes a natural guardian or even a de facto guardian. In the instant case, the father had the custody of the child on the date of the application. It was not his case that the child had been removed from his custody at any time. The application of the father, therefore, under Section 25 of the Guardians and Wards Act was misconceived and did not lie. On the other hand, the wife Mst. Taja, could maintain the petition under Section 25 of the Act, since the ward had been removed from her custody by the appellant. This legal position, however, does not bring to an end the controversy raised in the appeal because the father had also prayed in his application that he be appointed as the guardian for the person of the minor a prayer which essentially brings into play Section 17 of the Act read with Section 7 of the Act. Both these sections deal with declaration of guardian and the appointment of a guardian
16. In the case of appointment of the guardian, the court is charged with a duty of appointing the most suitable person amongst the rival claimants for guardianship. Under Section 17. normally, a person who under the personal law would be entitled to the custody of the child of the minor in preference to any one else should be appointed as the guardian. This is, however, a flexible rule. The scope of Sub-section (1) of Section 17 of the? Act is that the court has to see who put of the several applicants has a pre-ferential right to be appointed guardianof the minor under personal law of the minor keeping in view the welfare of the minor. Should, however, that person be found unfit he will not be appointed the guardian and even where he is found fit enough if there exist weighty considerations against his appointment in comparison to the rival claimant, he will still not be appointed if that course is found necessary for the welfare of the minor. The welfare of the minor thus has been given greater significance in deciding the question of custody and guardianship under the Act,
17. Before elaborating on the question of 'welfare of the minor,' in the instant case, let me first examine the position under the personal law, to which a reference has been made in Section 17 of the Act also.
18. The argument of Mr. Hagroo that the trial court should first have investigated whether or not the parties belong to Hanafi School, before applying the law applicable to that school, appears to be only an argument of despair. At no point of time was the case of either party that they do not belong to the Hanafi School. The trial court could not embark upon an enquiry as to whether or not the parties belong to Hanafi School when that was not an issue in controversy. The parties, thought their counsel, based their arguments before the trial court on the basis that the parties were governed by Hanafi Law. That apart, under the Mahammadan Law. the mother is entitled to Hizanat (Custody) of a male up to the end of 7 years and in the case of a female child, the custody belongs to the mother till the female reaches the age of puberty. It appears to me that since the position of law was clear to the appellant, he was attempting to advance the date of birth of the minor to show that he was above 7 years of age and this also shows that the application of Hanafi Law was never in dispute between the parties. According to Hanafi Law, as between a mother and father, the mother has preferential claim to the custody of a minor male below the age of 7 years. The mother would lose that right if she has any defect of character which would have rendered her unfit to have the custody of the minor (See AIR 1948All 198).
19. In the instant case, keeping in view the fact that the date of birth of the minor, is 1-7-1977. it is obvious that the minor is below the age of 7 years.The mother is, therefore, the preferential guardian under the personal law. There is no evidence, nor even a suggestion that the mother. Mst. Taja, has any defect of character which may render her unfit to have the custody of her minor son. The only ground on which the custody is sought to be denied to her on behalf of the appellant, is that the mother has no independent financial resources to maintain the minor son. This, is in my opinion, is not a valid ground on which custody can be denied to her. Irrespective of his right to custody, the responsibility of maintaining his minor son until he attains majority rests primarily upon the father so long as he is in a position to do so, because like a Hindu father, a Mohammadan father's duty to maintain his son until he attains majority is absolute. In this view of the matter, the lack of financial resources cannot stand in the way of the mother for getting custody of the minor child under the personal law of the parties.
20. Thus, in the facts and circumstances of this case, I find that the mother respondent No. 1. is the natural guardian and is entitled to the custody of the minor under the personal law.
21. However. consideration of the personal law of the parties, though to an extent relevant, has become almost subservient to the Guardians and Wards Act in so far as the appointment of a guardian and custody of the minor is concerned. In appointing a guardian for a minor, the main question under the Guardians and Wards Act is -- what order would be best for securing the welfare of the minor--that indeed is the first and paramount consideration in such case.
22. Section 17 of the Act enumerates certain tests which the court generally take into consideration while determining the question of the welfare of the minor. The principal considerations as suggested in that section are the age, sex, and religion of the minor, the character and capacity of the proposed guardian: the nearness of kin of the proposed guardian to the minor and his relationship with the minor. Further, the wishes of the minor may also be taken into consideration if the minor is old enough to form an intelligent preference. The court may also be guided by the personal law of the parties while declaring the guardian of the minor. The courtis not so much concerned with the feelings of the parents as with the welfare of the minor. As a matter of fact, the question of true welfare of a minor is of such paramount consideration that the recognized rights of the guardian under the personal law, to which a minor belongs, have been assigned a relatively subordinate position. The court to take into consideration every circumstance while determining the welfare of the minor and it must act in a manner as a wise parent acting for the true interest of the child would act. Neither the physical comforts that can be offered by one of the claimants nor his economic well being can override the interests of the minor. In re Mac Grath (1893) Ch D 143 Lord Justice Lindley laid down:--
'The dominant matter for the consideration of the court is the welfare of the child, but the welfare of the child is not to be measured by money or by physical comfort only. The word must be taken in its widest sense. The moral, the religious welfare of the child must be considered as well as his physical well being.'
23. The aforesaid observation of Lord Justice Lindley have been followed by a Full Bench of the Kerala High Court in AIR 1973 Ker 100. The Supreme Court in AIR 1982 SC 1276 and (1973) 1 SCC 840 : (AIR 1973 SC 2090) have also reiterated the same relevant factors to be kept in view while determining the question of welfare of the minor for the purpose of appointing a guardian and entrusting the custody of the minor to a guardian.
24. Coming now to the facts of the present case : It stands established that the appellant has taken a second wife. It also stands established that the appellant had removed the minor from the custody of respondent No. 1 some time ago. With a view to determine as to what order should be passed in this case keeping in view the welfare of tha minor. I directed the minor to be produced before me and I asked him certain questions in my chamber, both in the absence of and in the presence of the counsel for the parties. The record of the question and answers was prepared and has been kept on the file The minor stated that he did not want to go with the mother and that he wanted to live -with the father. He said that his mother had gone away with her father. He even refused to see his mother. The minor, thus, expressed his preference to live with the father. I am, however, of the opinion that this minor child, aged less than 6 years, is not fit enough to form an intelligent preference which may be considered in deciding his welfare. I, therefore, cannot agree with Mr. Hagroo that the preference of the child must be given due weight. The minor, no doubt stated, that he did not want to go with the mother but keeping in view the fact that for the past some time, the minor has been in the custody of the father, it was but natural for him to refuse to go to his mother who was living separately. It was quite obvious to me. when the minor answered certain questions before me that he was under the influence of the appellant. I. therefore, cannot attach any weight to the preference given by the minor. The answers given by the minor, however, to some of the questions have an important bearing for determining his welfare. I enquired, from the minor if his father had married another woman and he replied in the affirmative. I. then asked him with whom did he sleep at night and the answer given was that he slept with his father. To another question as to who helps him to take his bath or dress up or eat his food, the answer given was that it was the father and some times another elderly lady living in that house. Even to the question as to who takes him out for a walk etc., the reply of the minor was that it was his father only who used to take him out for walk or to play. Thus, it appears from answer to all these questions, which dealt with his daily routine, that the father alone was looking after various needs of the child personally. The answers given unmistakably show that the step mother is not taking any interest in the up-bringing of the boy. A child of such an impressionable age does not only need to be clothed and fed, he needs the affection and care of his parents more particularly the mother in these formative years. The father, admittedly, is a Government servant and he cannot be expected to be with the child all the time and the mother, therefore, is right in saying that the child is most of the time at the mercy of his step-mother, who in reality did not care for him. All these factors are suggestive of the position that it would not be in the interest of the welfare of the minor to entrust hiscustody and guardianship to the father. The mother, in the facts and circumstances of the case, and also keeping in view the personal law of the parties, is in my opinion more suited for being entrusted with the custody and guardianship of the minor. The argument of Mr. Hagroo that the welfare of the minor cannot be assured with the mother because she herself is living on the doles of her father, does not appeal to me. Apart from the fact, as noticed earlier, that the obligation to maintain the minor till he reaches the age of majority or is able to maintain himself, is of the father. I am of the opinion that the welfare of the minor cannot be measured in terms of money. . The 'capacity of a guardian to maintain the minor' as contemplated by Section 17 (1) of the Act, cannot solely depend upon the financial resources. The capacity would include the physical and the moral capacity and the capacity to look after the physical, psychological and moral well being of the minor. Had the capacity to be judged only in terms of money, then the poor parents in the country would not be able to retain the custody of their minor children, if for any reason, these children have remained with other relations, having better financial status. Law does not favour such a situation. It is a matter of common knowledge, that in this country most of the wives are dependent upon their husbands for financial support. If independent financial position is to be considered as the predominant criteria for determining her capacity to retain the custody of a child, most of the Indian wives (mothers) would have to be denied that right should an occasion so arise. I, therefore, do not find any reason to deny the custody of the minor to the mother only on the ground that, she has no independent source of income and is herself being supported by her-father.
25. After giving my careful consideration to various facts and circumstances of this case, I am of the opinion that respondent No. 1 being the mother and natural guardian of her minor son, Jahangir Ahmad, is entitled to be declared as his guardian because nothing has been proved against her for holding her unfit to be so declared. In my opinion, it will be for the welfare of the minor, if his custody is . restored to the mother respondent no. 1. The love and affection which the mother can give toher son cannot be bestowed upon him by anybody else much less by his stepmother. She is more suited to look after the physical, psychological and moral welfare of the minor, than the father who would not have much time to devote to the child being a working man. No exceptional circumstance has been proved or brought to my notice which may disentitle the mother, respondent No. 1 to the grant of custody of the minor, Jahangir Ahmad. The learned trial court was, thus, perfectly justified in rejecting the application of the appellant under Section 25/17 of the Guardians and Wards Act and of appointing respondent No. 1 as the guardian for the person of minor Jahangir Ahmad and I find no reason to interfere with the same.
26. While declaring respondent no. 1,Mst. Taja to be the guardian of theminor Jahangir Ahmad, I further declare that it will be for the welfare ofthe minor to, return him to the custodyof Mst. Taja. The appellant is, therefore, directed to deliver the custody ofthe minor Jahangir Ahmad to respondent No. 1 within one week from todayfailing which the said minor may berecovered in accordance with law (Section 100Cr. P. C.) and delivered to the custodyof. Mst Taja. respondent No. 1. Thenecessary warrants for that purposeshall be issued by the trial court, onan application of respondent, should thenecessity so arise. The directions ofthis court given herein above shall bestrictly and punctually complied withby the appellant.
27. The appeal fails and-is dismissed, but with no order as to costs.