JUDGMENT
Milap Chandra, J.
1. This appeal has been filed against the order of the learned District Judge, Udaipur dated April 5, 1989 by which he has directed the petitioner under Section 12, Guardian & Wards Act, 1890 (hereinafter referred to as ‘the Act’) to immediately give Lokesh in the temporary custody protection of non-petitioner. The facts of the case may be summarised thus.
2. The parties are husband and wife, moved an application under Section 12 of the Act, Section 13 and 16, Hindu Adoption & Maintenance Act and Section 151, C.P.C. with the allegations, in short, that the parties were married about thirteen years ago, on 16-10-1984. Lokesh was born out of this wed-lock, about two years back husband turned her out along with Lokesh from his house she started living with her parents. Husband came there about a year ago for taking them to his house and she proceeded with him. Her husband left her in the way and forcible took her Lokesh … from her. Since then, Lokesh is living with him. About eight months back, the husband has contacted second marriage with Manju D/o Rameshwar Lal Dadhich, r/o Gingla. It is not in the interest of the minor that he should remain with his father as he is a drunkard and he remains out of station for days together in connection with his service as a Khalasi on a vehicle. Step-mother Manju is also not keeping Lokesh property. In his reply, the petitioner admitted that the parties are husband and wife, they were married about thirteen years ago, Lokesh was born out of this wedlock and at present, he is residing with him. The remaining allegation of the petition have been denied. It has further been averred in it that Lokesh was born on May 8, 1983 and not on October 16, 1984, the non-petitioner herself left his house, she is leading an immoral life. Lokesh is suffering from an eye disease and treatment is going on and he is being properly looked after by his grand-mother, grand-father and aunt (Bhua). The parties filed their affidavits and also of their witnesses. After hearing the parties, the learned District Judge passed the impugned order.
3. It is contended by the learned counsel for the petitioner Mohanlal that the learned District Judge has not properly appreciated the facts and circumstances of the case, paramount walfare of the minor was not properly considered and no definite finding has been given on this point. He further contended that the minor’s welfare lies with his education and treatment which are being adequately given by his father and cannot be given by his mother. He also contended that the mother has not disclosed as to how she would maintain, education and render treatment to Lokesh. He further contended that it is well proved from the material on record that the date of birth of Lokesh is May 8, 1983 and not October 16, 1984 and as such father is entitled for his custody. He lastly contended that Lokesh did not recognise and started weeping when she tried to take him in the court-room and as such it would not be in the interest of the minor to change his custody from father to mother.
4. In reply, it has been contended by the learned counsel for the non-petitioner Kala @ Shanta Devi that Mohanlal has not specifically denied about the facts of contacting second marriage with Manju in his reply in affidavit. He further contended that Manju has given a birth to a child in last April and in the presence of this child, Manju would not naturally look after Lokesh. He further contended that Mohanlal clearly admitted in his reply and affidavit filed in the proceedings under Section 125, Cr.P.C. that he lives separately from his parents, his monthly income is Rs. 300/-only and is a Khalasi. He also contended that the mother stated the age of Lokesh as four years in her petition under Section 125 Cr.P.C. this fact was also not denied and it was also not stated that his date of birth is May 8, 1983. He also contended that allegation levelled against the non-petitioner that she is leading an immoral life is false and scandalous and it has been made to give weight to the reply and even the names of the persons with whom she is having illicit relations have not been disclosed. He lastly contended that it was natural for a little boy like Lokesh not to have recognised his mother after having been in the custody of his father for over 1-1/2 years and he would also not identify his father after remaining in the custody of his mother for about a month only. He would be better looked after by his mother and it would be in the interest of the minor that he should be given in the custody of mother.
5. At the out-set, it may be mentioned here that no appeal is provided under Section 47 of the Act against an order passed under Section 12 of the Act. It is not disputed that the impugned order has been passed by the learned District Judge under Section 12 of the Act. As such the appeal is treated as a revision petition under Section 115, C.P.C.
6. The learned District Judge has observed in the impugned order that the petitioner Mohanlal admitted in his reply to the application moved under Section 125, Cr.P.C. by the non-petitioner that he works as a Khalasi, his monthly income is about Rs. 300 only, he lives separately from his parents, he has only one room for his residence, his financial position is very poor and the age of Lokesh was four years in November, 1988. He has further observed that the uncle of the petitioner Bhagwatilal has stated in his affidavit that the petitioner Mohanlal has contracted second marriage with Manju d/o Rameshwar Lal Dadhich, s/o Gingla on 19-4-87. It may be mentioned here that the petitioner did not specifically deny the averments regarding his second marriage with Manju and also her maltreatment with Lokesh in reply and affidavit. It is correct that the sister of the petitioner has filed her affidavit to the effect that the non-petitioner is leading an immoral life. But the names of the persons with whom she has illicit relations have not even been mentioned. It is the admitted case of the petitioner that Kala’s sister is married with his brother. Naturally, she is under their influence. It was not difficult for them to obtain such an affidavit. From the aforesaid admission of the petitioner made in his reply to the petition moved under Section 125, Cr.P.C., it can be said that Lokesh has not completed five years as yet. As such the mother is entitled for the custody of Lokesh under Section 6 Hindu Minority and Guardianship Act.
7. It is correct that Lokesh did not recognise his mother and started weeping when she tried to take her. Admittedly, he is living for over 1-1/2 years with his father. This behaviour of Lokesh was natural. From this fact alone, it cannot be said that it would not be in his interest to change the custody from father to mother.
8. In view of these facts and circumstances, it cannot be said that the learned District Judge has acted with material irregularity or illegality in the exercise of his jurisdiction while passing the impugned order. It would not occasion a failure of justice to the petitioner. He is also not going to suffer an irreparable loss if the impugned order is allowed to stand, Lokesh has been given in the custody of his mother temporarily,
9. Consequently, the revision petition is dismissed with costs,