ORDER
Alagiriswami, J.
1. This appeal arises out of an application under Section 25, Guardians and Wards Act, filed by the appellant for the custody of his son from the first respondent, his wife. The appellant’s case was that on 19-11-1966 his son, aged six years, was taken away by the first respondent and is living with the second respondent her father. The first respondent contended that on 11-11-1966 the appellant came home fully drunk, beat her and dragged her out of the house and later left the house for good, that what he did upset her mentally and as the appellant did not return to the house till 19-11-1966, she had to leave the house. Her case further was that the appellant has taken to another woman by name Gomathi and he is unfit to be the guardian of the child. The lower court took the view that the point that arose for consideration was whether it was in the interests of the minor to hand over the custody of the child to the appellant and in order to determine that point it had further to decide whether the petitioner has taken to another woman by name Gomathi and married her. The lower court was of the view that the appellant had married Gomathi and that it was not in the interests of the minor to hand him over to the appellant and dismissed the petition.
2. I do not think that the lower court was right in its conclusion that the appellant had married Gomathi. The appellant is an advocate and is a Christian. He would certainly know that he cannot marry a second wife, while the first wife is living, whether she is a Christian or a Hindu. I do not think that the evidence of taxi drivers R. W. 3 and R. W. 4 can be relied upon to hold that the appellant had married Gomathi, R. W. 5’s evidence that the appellant is now living with Gomathi cannot also prove that the appellant had married Gomathi. The evidence of R. Ws. 6, 7 and 8 also does not establish that the appellant had married Gomathi, But I think the evidence is sufficient to establish that since April 1967, the appellant is living with Gomathi. The conclusion that follows is that the appellant is living with a mistress in his house,
The lower court was not correct in thinking that the appellant’s conduct in relation to his wife is one of hatred. Exs. B. 1 and B. 2 written in the heat of passion cannot be solely relied upon to prove either that the appellant ill-treated the first respondent or that he hated her. In any case, the fact that the appellant ill-treated his wife would not be a relevant consideration in coming to the conclusion that he is not a proper person to have the custody of his child; nor can it be said in this case that the appellant has permitted or allowed the other persons to have the custody of his child, and therefore, he should not be allowed to have the custody of the child. The child was taken away in November 1966 and after giving notice, the petition has been filed on 6-1-1967. There is no delay in the appellant taking action; nor am I satisfied that this petition is merely to forestall any action that might be taken against him for all that he has done to his wife. I do not see how this petition can forestall any such action and even if all that the wife alleges against her husband is true apart from the fact of his keeping a mistress, I do not see what action she could take against the appellant. If the first respondent can take proceedings either for judicial separation or for divorce, the very consideration mentioned by the lower court would show that the appellant would not mind such action being taken. Therefore, the case would have to be considered without reference to the appellant’s attitude towards the first respondent or without reference to the contention that the present petition is intended only to forestall any action that the first respondent might take against the appellant.
3. I consider that the lower court was not correct in proceeding to determine this question merely on consideration whether it was in the interests of the minor to make him over to the appellant, Though this petition is under Section 25 of the Guardians and Wards Act, Sections 17 and 19 of that Act are also relevant in discussing this question, Section 17 in so far as it is relevant reads:
“17 (1). In appointing or declaring the guardian of minor, the court shall, Sub-1ect 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 the deceased parent, and any existing or previous relations of the proposed guardian with the minor of his property. . . . Section 19 reads:
“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-
(a) of a minor who is 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). . . .. .”
Thus, in the case 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, no guardian can be appointed. When, therefore, Section 17 lays down that in appointing or declaring the guardian of a minor, the court shall be guided by what appears in the circumstances to be for the welfare of the minor, it does not mean that Section 17 overrides Section 19. Only if the father is unfit to be the guardian, can the question of the welfare of the minor come into consideration. In other words, under Section 17, there is no question of a guardian of his person being appointed if the father is alive and is not unfit to be the guardian. The father is entitled to he the guardian even as against the mother as long as he is not held to be unfit to be the guardian of the person of his son. In Audiappa v. Nellandran, ILR 39 Mad 473 :(AIR 1916 Mad 605) a Bench of this court discussed the question and observed as follows :–
“The fact that the father has married a second wife is not a sufficient ground for holding that he is unfit to be the guardian of his children. The learned vakil for the appellant relies on Bindo v. Shamlal, (1907) ILR 29 All 210 which seems to lay down that if the father marries again, he ought to be deprived of his legal right of guardianship. The learned Judge refer only to Section 17 and say that the welfare of the girls is the primary consideration. There is no doubt that that would be the consideration which would influence the court ultimately; at the same time, it ought not to be forgotten that the legislature advisedly draws a distinction between the legal rights of husband and parents on the one side and those of the other near relations on the other. In the first class of cases. It must be established that any act or conduct of the husband or father renders him unfit for guardianship; the fact that the child may be happier and more comfortable with other relations is not sufficient to deprive the two relations referred to of their right and duty, the same sanctity does not attach to the rights claimed by the other relations. It is for these reasons that Section 19 of the Guardians and Wards Act lays down that the Court must be satisfied that the husband or the father is unfit to be the guardian of his wife or child respectively before it can appoint another person as the guardian. For these reasons we are unable to follow the decision in (1907) 29 All 210. The decision in re, Gulbai and Lalbai, (1908) ILR 32 Bom 50 deals with the guardianship of other near relations. To such cases Section 19 does not apply and the only consideration which should weigh with courts is the welfare of the minor; we think the order of the District Judge is right; we must dismiss this appeal.”
The Calcutta High Court in Bimala Bala v. Bhagirathi Sahu, 65 Cal WN 1138, at p, 1140 has also held similarly. The relevant portion of the judgment is as follows:
“The two sections of the Guardians and Wards Act, relevant on the point, are Sections 17 and 19(b). Under Section 19(b) the father has the undisputed right to the guardianship of his child, so long as he is not and has not become unfit for the purpose. Under Section 17, it is the interest and welfare of the minor concerned, which should be the guiding factor in the matter of appointment of his guardian.
The court’s power to appoint or declare a guardian of the person and/or property of a minor is contained in Chapter II of the Act, where Section 19 also occurs. In that context, the opening words of Section 19 may well suggest that, in view of Clause (b) of the said section, where the father of the minor is alive and is not unfit to be the guardian of the person of the minor concerned, no question of appointment or declaration of guardian of his person will arise and the court will have no jurisdiction to make any such appointment or declaration. From that point of view. Section 17, which, on its own words, applies, only where the court has to appoint or declare the guardian of a minor, may not be relevant so far as Section 19 is concerned, or, to be more precise, and explicit, the said section 17 may not be strictly relevant in judging the fitness or unfitness of the father for purposes of guardianship as contemplated in the said other Section 19 of the Act. That however does not. In our opinion, rule out altogether consideration of the question of welfare and/or interest of the minor in adjudging such fitness or unfitness of the father. It will, no doubt, not be the paramount or the supreme overriding consideration in the matter as it would have been if Section 17 had applied, but it may well be, and — indeed it will still be–one of the matters for consideration even under Section 19. The question of fitness or unfitness of a person for the guardianship of a minor cannot be wholly dissociated from the welfare and interest of the minor concerned in any case whatsoever, but while, in other cases, it will almost be the paramount or the deciding factor, in the case of the husband and the father under Clause (a) and Clause (b) respectively of Section 19, it will only be one of the factors to be considered for judging their fitness or unfitness for the guardianship. The result will be that, merely on this ground, namely, that the minor’s welfare and/or interest will be better served by some other person as guardian, the husband’s or the father’s position as guardian of the particular minor cannot be disturbed, or, in other words, unless they are considered to be ‘unfit,’ as distinguished from “less fit’ for such purpose, their position, as the guardian as aforesaid, should be maintained and left undisturbed. To throw them out the test should be one of unfitness and not simply relative unfitness or inferiority in fitness and, in applying such test, the interest and welfare of the minor will, inter alia, have to be taken into consideration.”
Reliance was placed on behalf of the respondents on the decision of Ramaswami J. In Mr. Richard v. Mrs. Richard, . The learned Judge there held that a mala fide application, under Section 25 by a father for the custody of his daughter of tender years, who was living with her mother, filed more or less as a counterblast to the petition of the mother under Section 488 Crl. P. C., deserved no encouragement. But as J have already held that this petition is not one intended to forestall any action, which might be taken by the first respondent, this part of the decision will not apply. The learned Judge also held that in deciding the question of custody, the welfare of the minor is the paramount consideration and the fact that the father is the natural guardian would not ipso facto entitle him to custody and that the principal considerations or tests which have been laid down under Section 17, in order to secure this welfare, are equally applicable in considering the welfare of the minor under Section 25, The learned Judge does not lay down that a mother can be appointed in preference to the father as the guardian of the minor child merely because the welfare of the minor is the paramount consideration. But he does lay down that in an application under Section 25, the welfare of the minor would be the paramount consideration. Whether different considerations arise, when the application is one under Section 25, as distinguished from cases to which Section 19 applies, I shall consider later.
The learned Judge after pointing out the considerations against transferring the custody of the minor to the father and how the interests of the minor are paramount held that the fact that the father is the natural guardian would not ipso facto entitle him to custody. The learned Judge goes on to observe that in fact there is often much confusion in regard to Clause (b) of Section 19 of the Act, which states that “nothing in this chapter shall authorise the Court to appoint or declare a guardian of the person of the minor whose father is living and is not, in the opinion of the Court, unfit to be the guardian of the person of the minor”; that all that Clause (b) means is that the Court cannot appoint a father as guardian under the Guardians and Wards Act; that he is the natural lawful guardian of his own minor children, but that if the father makes an application for guardianship for the purpose of obtaining the custody of the child from another, the application will be treated as one under Section 25 of the Act. With great respect to the learned Judge, I am unable to agree with him that all that Clause (b) of Section 19 means is that the court cannot appoint a father as guardian under the Guardians and Wards Act. Nor, in my opinion, is the learned Judge correct in saying that if the father makes an application for guardianship for the purpose of obtaining the custody of the child from another, the application will be treated as one under Section 25. There can be no question of the father applying to be appointed guardian for such a purpose. In making this observation, the learned Judge has not taken into consideration the observations of the Bench of this court in ILR 39 Mad 473 : (AIR 1916 Mad 605) to which I have already referred.
I do not think that there is any confusion with regard to Clause (b) of Section 19. As I already pointed out, I think it is quite clear that except where the father is unfit, nobody else can be appointed as guardian of the minor and the question of the welfare of the minor without reference to the unfitness of the father does not come in at all.
Reliance was also placed upon the decision in Bai Tara v. Mohanlal Lallubhaj AIR 1922 Bom 405 and Saraswathi Bai v. Shripad, AIR 1941 Bombay 103. In Bai Tara v. Mohanlal Lallubhai, AIR 1922 Bom 495, the learned Judges held that in an application under the Guardians and Wards Act made by the father to obtain custody of his minor son, the only question to be considered is whether it will be in the interests and welfare of the minor to return to the custody of the father. They relied upon the decision of the Privy Council in Mrs. Annie Besant v. Narayaniah, ILR 38 Mad 807 : (AIR 1914 PC 41). The Privy Council case was not one where the conflicting claims of a father and a mother arose. The only relevant portion in the Privy Council judgment is that no order declaring a guardian could, by reason of the 19th section of the Guardians and . Wards Act 1890, be made during the respondent’s life (father’s life unless in the opinion of the court he was unfit to be their guardian, which was clearly not the case. Now to my mind this observation itself shows that the father would be also entitled to the custody of his minor son.
In AIR 19-11 Born 103, also it was held that the paramount consideration in the matter of the custody of a minor of tender years is the interest of the child rather than the rights of the parents and that human nature being much the same all the world over, if the mother is a suitable person to take charge of the child, it is quite impossible to find an adequate substitute for her for the custody of a child of tender years and consequently the mother is preferable to the father in such case. One may not disagree with the learned judges when they say that if the mother is a suitable person, it is quite impossible to find an adequate substitute for her for the custody of a child of tender years and consequently the mother is preferable to the father in such case. But if they intend to lay it down as a proposition of law, it does not seem to be well founded. No doubt they refer to the earlier decision of the Bombay High Court in AIR 1922 Bom 405, and that of the Privy Council in ILR 38 Mad 807 : (AIR 1914 PC 41). But ILR 38 Mad 807 :(AIR 1914 PC 41) is referred to only for purposes of showing that among Hindus, as in England, the father is the natural guardian of his children during their minority.
4. The question should, therefore, be decided on the basis of Sections 17, 19 and 25 of the Guardians and Wards Act and the relevant consideration would, therefore, be whether in considering the application under Section 25 considerations different from those that apply in cases where Sections 17 and 19 arc involved. With great respect to the learned Judges who have decided otherwise, I am of the view, that the decision of the Bench of this court in ILR 39 Mad 473 :(AIR 1916 Mad 605) as well as the Privy Council decision in ILR 38 Mad 807 :(AIR 1914 PC 41) would seem to point out that the considerations cannot be different. If under Section 17 of the Act, the welfare of the minor would be an overriding consideration for the appointment of a guardian when the father is alive only if he is held unfit under the provisions of Section 19(b), I do not think that different considerations apply in applications under Section 25. A guardian is entitled to the custody of his ward, and when a guardian applies for a custody of his ward, the other person questioning his right to the custody of the child cannot claim that it is in the interests of the minor that the minor should be with him or her. The very fact that the court has appointed the person putting in an application under Section 25 as a guardian under Section 17 would he an answer to such a contention, because the court should be deemed to have taken into consideration the welfare of the minor, when it appointed the applicant under Section 25 as the guardian of the minor. If that is so, the father who has a right, superior to that of anybody else, to be the guardian of the minor even without being so appointed by court, cannot have lesser rights. The reason behind Section 19 is obviously to recognise that the father’s right to the guardianship of his minor child is supreme and it is for the welfare of the child except where he is unfit.
Both the Benches of the Bombay High Court, which decided the cases already referred to, have not considered the implications of Section 19 of the Guardians and Wards Act. It follows, therefore, that when an application under Section 25 is filed by a father, the only consideration would be whether the father is unfit to be the guardian of his minor child. If he is not unfit, no other question can arise. As observed by the Bench which decided the case in ILR 39 Mad 473 :(AIR 1916 Mad 605), the fact that the child may be happier and more comfortable with other relations is not sufficient to deprive the two relations referred to of their right and duly. The Bench has taken the view that there is a sanctity attaching to the right claimed by the father. The present case has, therefore, to be considered on the basis whether the father in this case can be said to be unfit.
5. I have already held that the appellant could not have married Gomathi. If he had married Gomathi and it was permissible under the personal law that would not be a bar to his application under Section 25 being granted. But under the personal law applicable to the appellant, he cannot take a second wife when the first wife is living. He has not divorced the first respondent. He should, therefore, be deemed to be living with a mistress in his house and a person who is living with a mistress in his house can hardly be considered to be a person fit to have the custody of his child of tender years. From this point of view, it is better that the custody of the child continues to be with the mother. As pointed out by the Bench in AIR 1941 Bom 103 orders as to the custody of a child being always of a temporary nature those interested in the minor are at liberty to apply to the court at any time for the charge of minor’s custody.
6. The appeal is dismissed.
