Rajasthan High Court - Jaipur
Prakash Chandra Jain vs Smt. Chandrawati Jain on 18 September, 1995
Equivalent citations: AIR1996RAJ162, 1996(1)WLC261
JUDGMENT B.R. Arora, J.
1. This appeal is directed against the judgment dated 5-11-1992, passed by the learned Judge, Family Court, Udaipur, by which the learned Judge of the Family Court dismissed the application under Section 25 of the Guardians and Wards Act, 1890, filed by the husband-appellant and refused to deliver the custody of the child to him from the custody of the mother-respondent.
2. Appellant Prakash Chandra Jain, on 28-1-1989, filed an application under Section 25 of the Guardians and Wards Act, 1890, in the Court of the District Judge, Udaipur, for the custody of his son Sumeet alias Kshitiz, who is living with his mother Smt. Chandrawati Jain. It is stated in the application that appellant Prakash Chandra Jain was married with Smt. Chandrawati on 6-2-1982 at Udaipur and out of this wed-lock, the son Sumeet alia Kshitiz was born on 20-9-1983. The nonapplicant Chandrawati, in the month of November, 1985, along with her son Sumeet, went to her parents house and since then she is living with her parents along with her son Sumeet. It was, also, averred that the appellant-applicant is the natural guardian of Sumeet as per the law and the welfare of the boy is in living with the father as the mother is not taking proper care of the boy and, therefore, his custody should be given to the applicant-father. The wife Smt. Chandrawati filed reply to the application on 15-7-1989, refuted all the allegations made against her in the application and stated that the welfare of the child is in living with the mother and the applicant has neglected the child for the last so many years and, therefore, he is not entitled for the custody of Sumeet alias Kshitiz. The applicant, in support of his case, examined himself as AW 1 and produced in his evidence his father Shanti Lal as AW 2 and friend and neighbour Bharat Kumar as AW 3 whereas the wife (non-applicant) examined herself as NAW 1 and produced in her evidence Rakesh Gaur as NAW 2 and her mother Smt. Vidhyawati Gandhi as NAW 3.
3. The learned Judge of the Family Court, Udaipur, after trial, came to the conclusion that (i) the applicant, though the natural guardian, has fallen out with the mother and was living separately for about seven-eight years without taking any care in the affairs of the minor who was in the keeping and care of the mother and the father should, therefore, be treated as if in non-existence and the mother should be treated as the natural guardian of the minor; (ii) the boy is in the custody of the mother and she has not disentitled herself for the custody of the child; (iii) the desire of the minor is to live with his mother, and dismissed the application under Section 25 of the Guardians and Wards Act filed by the appellant-applicant vide" its judgment dated 5-11-1992. It is against this judgment dated 5-11-1992 passed by the learned Judge of the Family Court, Udaipur, that the appellant-husband has preferred this civil miscellaneous appeal.
4. It is contended by the learned counsel for the appellant that (i) under the Hindu Minority and Guardians Act, the natural guardian of the minor boy up to the age of five years is his mother and thereafter his father and in these circumstances the appellant could not have filed application for the custody of the child before the child attains the age of five years and, therefore, there was no question of any negligence on the part of the appellant in taking care of his minor son Sumeet alias Kshitiz as he was living with his mother Chandrawati who had left the house of the appellant without any sufficient cause; (ii) the approach of the learned Judge of the Family Court that the mother has not disentitled herself for the custody of the child, is not proper because it is the father who is the natural guardian and, therefore, he is entitled for the custody of the minor unless he has disentitled himself; (iii) the desire of the minor for the custody can be a valid consideration if the minor is Of matured intellects and perform an intelligence preference and not when the minor is of immature understanding on account of tender age of nine years only; (iv) the paramount consideration of the welfare of the child has not been considered by the learned trial Court; (v) the appellant, being the natural guardian of Sumeet alias Kshitiz, is entitled for the custody of the boy as the welfare of the boy is in living with the father who is better suited to take care for the proper development of the child and for his education and other requirements of the life; and (vi) the learned Judge of the Family Court has proceeded with wrong notion of the law. The learned counsel for the respondent-wife, on the other hand, has supported the judgment passed by the learned trial Court.
5. Before dealing with the contention raised by the learned counsel for the parties, it will be proper to look into the nature of the evidence produced by the respective parties. The appellant-applicant has examined three witnesses in support of his case and the non-applicant (wife) has, also, examined three witnesses in support of her case. A.W. 1 Prakash Chandra Jain (the appellant-applicant) has stated that he was married with Chandrawati and the son Sumeet alias Kshitiz was born out of this wed-lock. Chandrawati is presently living with her parents and not with him. He wants to keep Sumeet alias Kshitiz with him for his better up-bringings, education and to provide better facilities in the life. The better facilities for the up-bringing of the boy, which he can provide, cannot be provided by Chandrawati who is studying in B.Ed. His parents, brothers, sisters-in-law and sister are living with him, who can take better care of the child. In the cross-examination he has admitted that he was living separately from his parents but, now, he is living with his parents. He has left the rented house two months before. He has, also, admitted that the boy is living with Chandrawati and is a school-going child studying in II Standard in Alok School which is English Medium School and his wife is M. A. and is, also doing B.Ed. while he is only Higher Secondary passed. He has, also admitted that his father-in-law is M.Sc. and is a Gazetted Officer.
A.W. 2 Shanti Lal -- the father of the appellant -- has stated that the up-bringing of Sumeet alias Kshitiz is not being properly made by Chandrawati and, therefore, Prakash wants to keep the son with him. His son Prakash Chandra is living with him in the joint family and Sumeet will be properly looked-after in the joint family and better educational facilities will be provided to him.
The facility which they can provide, is not possible to be provided by Smt. Chandrawati. He has, also, stated that he has three grand-sons of the equal age of Sumeet alias Kshitiz. In the cross-examination he has admitted that he had last seen the boy only fifteen days before and the boy was looking weak. He has admitted that the boy is studying in Alok School, Hiranmagri, Udaipur. He has, also, stated that no notice was given to Chandrawati regarding her inability to properly maintain the child but a message was conveyed to her through the relative that the custody of Sumeet may be given to them, but Chandrawati and her parents refused to do so. He has denied the suggestion that in order to torture or harass Chandrawati the application for the custody of the boy has been made. He has, however, admitted that Chandrawati is M.A., B.Ed. Regarding the educational qualification of his family members, he has admitted that his eldest son is Higher Secondary, the second son (appellant) is Higher Secondary and is a Male Nurse while his third son is M.Com. and his daughter is Master of Arts whereas his eldest married-daughter is Matriculate. He showed his ignorance regarding the educational qualification of the father of Chandrawati whether he is M.Sc. (Gold Medalist) and B.Sc. (Hons.) but he, however, admitted that the younger sister of Chandrawati is a doctor. He has, also, admitted that sometime Prakash Chandra has to perform the night duty in the hospital and sometimes he remains on day-duty.
The third witness produced by the appellant is AW 3 Bharat Kumar, who has stated that the child of Prakash Chandra and Chandrawati is aged about nine years and is living with his mother but she is not keeping the boy properly because she is employed as a teacher and used to go to school. He has, also, stated that Chandrawati is a patient of Blood Pressure. In the parental family of Chandrawati, there is no child of the age of Sumeet and, therefore, Sumeet is not living the joyful life and is living all alone with sadness on his face. He will live in the better company if his custody is given to Prakash Chandra because Prakash Chandra is living in the joint family having three brothers and their families and the father. In the cross-examination this witness has stated that the boy is studying in Alok School and he does not know whether Chandrawati is employed or not, but she is doing tuitions although he cannot say how may students are being coached by her. He has, also, admitted that though the house of the father of Chandrawati is situated outside the town but it is near Alok School where the boy is studying. He has, also, admitted that he and Prakash Chandra are the close friends since their childhood.
The non-applicant (wife) Smt. Chandrawati Jain examined herself as NAW 1 and produced in her evidence two witnesses. NAW 1 Chandrawati has stated that her marriage with appellant Prakash Chandra Jain took place on 6-12-1982 (sic) and out of this wed-lock, the son Sumeet alias Kshitiz was born on 20-9-1983 and since 15-9-1985 the boy is living with her in the house of her parents and is a student of IV Standard in Jawahar Jain Shikshan Sansthan, Udaipur. The boy goes for walking in the morning and evening, play indoor games of Luddo and Carrom. She, also, buys magazines etc. for the entertainment of the boy. She has, also, taken the boy to visit certain places outside Udaipur city. She has, also, stated that the boy is being provided proper and good clothes, nourishing food, milk etc. and the career of the boy is more bright in her custody than in the custody of her husband because her husband is working as Compounder and renders eight hours' duty in the hospital and his duty hours are not fixed -- sometimes he works on night-duty and sometimes on day-duty. Apart from his duties in the hospital, he is, also, doing private practice. She has further stated that in view of the duties of her husband he will not be able to properly look-after the child and the child will have to remain dependant upon the other relatives of her, husband and the welfare of the boy is in living with her. She has, also, stated that her husband sometimes lives with her parents and sometimes separately from them and he has no-permanent establishment of his living. The application for the custody of the son has been made by the applicant mala fide in order to harass and torture her because he knows her weakness about the child. She has, also, stated that for the demand of dowry, a case was instituted by her against the husband and he was released on bail. She has, also, stated that her husband has no love and affection towards the boy and once he left the boy outside the house in the street and once her sister-in-law (Jethani) and once her sister-in-law (Nanad) threw the boy on the ground. She has, also, stated that she is M.A.; B.Ed. and there is educational atmosphere in her parental house. In the cross-examination she has stated that she will impart higher and better education to the boy and the boy will not need any tuitions because she herself is coaching him. She has, also, stated that in the joint family, about Rs. 500/- per month is being spent on the up-bringings and education of the boy and she is bearing all these expenses with the aid of her father. She has admitted that there is no child in her parental house of the age-group of Sumeet but in the neighbourhood there are several boys of the age-group of Sumeet, with whom he uses to play. She has, also admitted that she is working as Honorary Teacher in Alok School because when Sumeet goes to school, she lives all alone in the house and as she is an Honarary Teacher, she is not required to remain present in the school during the full school-hours. She has, however, denied the suggestion that the school of Sumeet was changed as he marginally passed the Final Examination in Alok School.
NAW 2 Rakesh Gaur, who is working with the father of Chandrawati, has stated that he knows Chandrawati for the last twelve years, He, along with his family members, attended the Birth Day Party of Sumeet on 20-9-1992 and on that occasion about fifteen to twenty persons had enjoyed the Birth Day Party. He has, also, stated that the boy was formerly studying in Alok School and this year he has been admitted to Jawahar Jain Shikshan Sansthan, Udaipur, and is happy in the company of his mother. The mother of the boy is taking proper care of the boy and is providing him good clothes, nourishing food and proper education. In the cross-examination he has admitted that Sumeet failed in Half Yearly Examination but he passed the Final Year Examination, but he cannot say in which Division he passed the Final Examination. He has, however, denied the suggestion that the boy was removed from Alok School as he passed the Final Examination with lesser marks. He has, however, denied the suggestion that being doing the teaching work in the school, Chandrawati cannot properly look-after the boy.
NAW 3 Smt. Vidhayawati Gandhi is the mother of Chandrawati and she stated that Chandrawati is living with them along with her son. Chandrawati is looking-after the boy who is a student of IV Standard and is having good health. She is giving proper clothings and nourishing food etc. to the boy and the boy plays games, takes part in the sports and, also, attends the music classes. On 15-9-1985 Prakash Chandra left Chandrawati and Sumeet to their house and went away and since then Chandrawati is living with them along with her son. Thereafter neither Prakash Chandra nor any of the members of his family or relatives came to take them back nor they were cared-to. Prakash Chandra is a Compounder and his brothers are living separately. Sometime Prakash Chandra lives with his father and sometimes he lives separately. Prakash Chandra has one sister who is going to be married in recent future. Prakash Chandra's mother cannot maintain Sumeet better than Chandrawati and when Chandrawati used to live with Prakash Chandra, his mother and sister-in-law were cruelly treating the boy and he was often given beating by them. Prakash Chandra is doing night duty in the hospital for one week in a month and sometimes he uses to go to inject the patients and his regular duty hours are of eight hours and, therefore, he cannot properly look-after the boy and since the birth of Sumeet he is being looked-after by Chandrawati or her. In the cross-examination she has denied the suggestion that the boy passed III Standard with III Division. She has, however, stated that Chandrawati is M.A.; B.Ed. and is teaching her son Sumeet. She has, also, admitted that some boys of the vicinity use to come to Chandrawati for solving their problems. She has denied the suggestion that Prakash Chandra came to her house four-five times to take the boy. She has, also, denied the suggestion that the proper food, clothings etc. are not provided to the boy. She has, also, denied the suggestion that Prakash Chandra came to inquire about the health of Chandrawati when she fell ill. She has, also, stated in the cross-examination that Chandrawati is not doing any tuition work and she has no earning from the tuitions.
6. We will, now, consider the submissions made by the learned counsel for the parties.
7. The first contention, raised by the learned counsel for the appellant, is that the learned trial Court was wrong in holding that the father is non-existence and the mother is the natural guardian of the minor because he has been living separately for so many years and has not taken any care arid interest in the affairs of the minor and has not applied for the custody of the minor prior to the making of the application under Section 25 of the Guardians and Wards Act. Section 6 of the Hindu Minority and Guardianship Act deals with the 'natural guardian of a minor' and provides that a natural guardian of a Hindu minor is his father and after him the mother and further provides that the custody of the minor, who has not completed the age of five years, shall ordinarily be with the mother. Till the minor attains the age of five years, the well-being of the minor is in living with his mother so that the child may be properly brought-up and fed because in the infancy period the custody of the child with the mother is considered as a 'must'. The appellant waited till the boy attained the age of five years and after attaining the age of five years by the son, he filed an application for his custody. Prior to five years, ordinarily the custody of the child has to be with the mother and, therefore, if the appellant (father) waited for the moving of the application till the boy attains the age of five years then it cannot be said that he was, in any way, negligent or careless. While treating the appellant as non-existence, the learned trial Court relied upon the judgment of the Hon'ble Supreme Court, reported in : Jijabai Vithalrao Gajre v. Pathankhan, AIR 1971 SC 315. In this case, the father and the mother were living separately for over twenty years and it was the mother who was actually managing the affairs of her minor daughter who was under her care and protection while the father did not take any care and interest in the affairs of the minor for long twenty years and in those circumstances the Supreme Court held that the father should be treated as non-existent. The facts of the above case are not applicable to the present case because in the present case the father, being the natural guardian, made the application for the custody of the child as soon as the child attained the age of five years. He is very much interested in the care and interest of the minor and, therefore, the application for the custody of the child was made by the appellant-father. The finding of the learned trial Court, on this point that the appellant neglected in taking care and interest in the minor, is, therefore, without any basis. The contention, raised by the learned counsel for the appellant, is, therefore, liable to be upheld.
8. The next contention, raised by the learned counsel for the appellant, is that the approach of the trial Court that the father should be treated as non-existent and the mother should be treated as the natural guardian of the minor as she has not disentitled herself for keeping the custody of the minor, is contrary to the law. As per Section 6 of the Hindu Minority and Guardianship Act, the father is the natural guardian of the minor boy after he completes the age of five years and is entitled for the custody of the boy. Section 19 of the Guardians and Wards Act, which deals with the 'appointment of guardian by the Court in certain cases' 'provides that the Courts are not authorised to appoint a guardian of a minor whose father is alive and is not, in the opinion of the Court, unfit to be the guardian of the minor. The father, being the natural guardian, is entitled for the custody of the minor boy after he attains the age of five years and while considering the custody of the boy if the father has not disentitled himself and the welfare of the child is in keeping in the custody of his father then the custody of the child should be given to the father. He has not neglected to maintain his minor child nor was he careless in the interest or maintenance of the child and, therefore, he cannot be treated as non-existent. For the consideration of the custody of the minor child, it is only the disentitlement of the father, who is the natural guardian of the minor boy, which was required to be considered and not that of the mother. The learned Judge of the Family Court has, therefore, proceeded on wrong assumption of law in considering and holding that the mother has not disentitled herself to maintain the custody of the minor. The learned trial Court was, therefore, not justified in dismissing the application filed by the appellant on the ground that the mother, being the natural guardian, has not disentitled herself to keep the custody of the child.
9. The next contention, raised by the learned counsel for the appellant is that the learned trial Court was not justified in ordering for the custody of the child on the basis of the desire of the minor Sumeet alias Kshitiz. Sumeet alias Kshitiz was aged about nine years when he was called in the Court and his desire was asked on 25-9-92. The desire of the minor can weigh with the Court while considering the case of his/her custody provided the minor has attained the age of maturity and is able to exercise his discretion in a perfect manner and is able to understand his betterment. In the case of a child, this power of exercising discretion develops near-about the age of 16 years. Nine years' age is not the age in which the boy can exercise his discretion intelligently. He lives under the influence of the person with whom he is living and exercises the discretion as suggested by that person. The discretion, on which reliance has been placed by the learned Judge of the Family Court, was of immature intellects and imperfect understanding. The learned Judge of the Family Court was, therefore, not justified in relying upon the desire of a child of nine years who is not old enough to form an intelligence preference.
10. The last contention, raised by the learned counsel for the appellant is that the learned trial Court, while considering the case of the appellant, for the custody of his son Sumeet alias Kshitiz to him, has not considered the question of welfare of the child in the right perspective and wrongly ordered for the custody of the child to his mother. We have, therefore, to see: in whose custody the welfare of the child will be better served?
11. Minors represent a class of person, who, by their age, are regarded as having immature intellects and imperfect discretion. They, on account of their tender age, immature intellects and imperfect discretion, are unable to take care of themselves. Guardianship is a sacred trust and the father, being the natural guardian, is under an obligation to maintain his minor child during minority provided he has not made himself unfit to be the guardian. In dealing with the application for the custody of the minor under Section 25 of the Guardians and Wards Act, the first and paramount consideration is the welfare of the minor and all other considerations are subsidiary and subordinate and should have importance proportionate to their bearings on the welfare of the minor.
The Supreme Court has an occasion to consider the legal position regarding the father's right for the custody of the child vis-a-vis the welfare of the minor in : Rosy Jacob v. A. Chakramukkal, AIR 1973 SC 2090 and it has been held by the Supreme Court (at Pp. 2099 and 2100 of AIR):
"In our opinion, the dominant consideration for making orders under Section 25 is the welfare of the minor children and in considering this question, due regard, of course, has to be paid to the right of the father to be the guardian and, also, to all other relevant factors having a bearing on the minor's welfare..... The father's fitness has to be considered, determined and weighed pre-dominatly in terms of the welfare of his minor children in the context of all the relevant circumstances. If the custody of the father cannot promote their welfare equally or better than the custody of the mother then, he cannot claim indefeasible right to their custody under Section 25 merely because there is no defect in his personal character and he has attachment for the children -- which every normal parent has ......... The father's fitness from the point of view just mentioned cannot override consideration of the welfare of the minor children. No doubt, the father has been presumed by the statute generally to be better fitted to look after the children-- being normally the earning member and head of the family -- but the Court has, in each case, to see primarily to the welfare of the children in determining the question of their custody, in the background of all the relevant facts having a bearing on their health, maintenance and education."
The Supreme Court further observed in Rosy's case (AIR 1973 SC 2090 at p. 2100) :--
"The children are not mere chattels: nor are they mere play things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow-up in a normal balanced manner to be useful members of the society and the guardian Court in case of a dispute between the mother and father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them."
The controlling consideration, therefore, for governing the custody of the child, is the welfare of the child and not the rights or sentiments of the parties. In deciding any question as to the custody and up-bringings of the minor, the Court must regard the minor's welfare as the first and paramount consideration and must not take into consideration whether from any other point of view the father's claim in respect of such custody, upbringing, administration or application is superior to that of the mother or the mother's claim is superior to that of the father. In case of a dispute between the mother and the father for the custody of the child, it is necessary to strike-out a balance between the requirements of the welfare of the minor child and the rights of his respective parents over the child. The Court is mainly concerned with the welfare of the child and not with the rights of the parents. The decision for the custody of the child to a particular person, requires a judicial investigation in order to ascertain: (i) with whom the child will be happy; (ii) by whom the health and comforts of the child will be better looked-after and to contribute its well-being; (iii) who can bring up the child and give education in a manner in which he deserves to be brought-up; (iv) in whose company the child may grow-up in normal balanced manner to the useful member of the society; (v) the age and sex of the child; and (vi) the character and capacity of the father or the mother etc. These are some of the considerations which are required to be looked-into at the time of delivery of the custody of the minor.
The boy is living in the company of his mother, admittedly, since 15-9-85 and has not seen his father after that. He has been deprived of the love and affection of his father by the conduct of the mother. The boy has not been permitted by the mother and the material grand-parents to go and meet his father. Since the child has not lived with his father and is not old enough to form an intelligent preference, therefore, it cannot be said that he will not be happy in the custody of his father. Both : the mother and the father of the child are expected to promote their child's welfare and interest. There is nothing on record to show that the conduct of the father towards his son was, at any point of time, cruel or he ill-treated the boy at any time. The boy can remain happy if he is allowed to live in the company of his father, though, for the time being, he may feel happy in the company of his mother because he has not lived with his father since 15-9-85.
The next question, which requires adjudication is that : by whom the health and comforts of the child will be better looked-after and who can contribute more to his welfare. Admittedly, the father of the boy is employed as a Male Nurse and is in Government Service. He is, also, having private practice, as has been admitted by Chandrawati and other witnesses, while Chandrawati is not gainfully employed anywhere. She has no source of income. She is fully dependant upon her father, She has admitted in her cross-examination that she is working as an Honarary Teacher in Alok School and is not doing any tuition work. NAW 3 Vidhyawati Gandhi -- the mother of Chandrawati -- has, also, admitted that Chandrawati is not doing educational work for any money and is not having any earning from the tuition work. When Chandrawati is not employed anywhere and has no source of income then in that circumstance she cannot properly look-after and maintain the boy and cannot provide him proper up-bringing, maintenance, education, nourishing food etc. as she herself is dependant upon her father. The appellant Prakash Chandra, in the facts and circumstances of the case, therefore, can provide better facilities and opportunities to the child for his betterment in comparison to Smt. Chandrawati.
The next question, which requires consideration, is : who can bring-up and provide education in better way to the child. It is true that Chandrawati is M.A. B.Ed. and can coach her son Sumeet alias Kshitiz. She is more qualified than the appellant. But the result of III Class shows that the boy failed in Half Yearly Examination and passed the Annual Examination with poor marks and, therefore, he had to shift from Alok School to Jawahar School. Smt. Chandrawati is not an earning member, as has been admitted by her and, therefore, for providing necessary facilities for the education of the minor, also, she will have to remain dependant upon her father or brother(s). Prakash Chandra is earning sufficient amount due to his Government service and private practice and has to maintain himself alone and, therefore, if he himself cannot teach the child then he can arrange for a teacher to look-after the education of the child and the boy can be provided better facilities and education out of the earnings of the appellant.
The circumstances, under which the boy may grow up in a normal manner and be a useful member of a society can be better looked-after by the father in comparison to the mother. The father can provide better facilities to the child so that he may develop in a healthy manner and with dignity. The father can, also, take care that the tender age of the child is not abused. He can, also, protect the childhood and youth of the boy against exploitation while the mother will not be in the same position.
While considering the case of delivery of the custody of the child between the parents, the human complexity and trivilities of the society, also, cannot be ignored. The father can better look-after the physical and mental well-beings of the child, his education, upbringing, happiness, etc. Age and sex of the child, while giving the custody, also, play an important role. Up to the age of five years, the custody of the child should be kept with the mother. There is a stautory provision to this effect. After five years, Section 6 of the Hindu Minority and Guardianship Act, says, the custody of the child must be with the father unless he has disentitled himself. The minor's welfare overrides the rights of the father for the custody if the father, by his act or conduct, renders himself unfit for the custody of the child. The acts of the father, which disentitles him for the custody of the minor, are: (i) gross ill-treatment or cruelty towards the child; (ii) consistent habit of drunkness; (iii) acts otherwise injurious to the morale of the child; (iv) domestic association of the father are such which tends to corruption and contamination of the child; (v) immoral character of the father or other like things. No such allegations against the appellant have been made by Smt. Chandrawati or her witnesses that he, in any way, by his character, conduct or acts, disentitled himself for the custody of the child. The only allegation made by Chandrawati against the appellant is that he is living separately and being employed as a Compounder and also doing private practice, will not be able to properly look-after the up-bringing of the boy in the proper manner and she is more qualified and is entitled for the custody of the boy. The capacity of the appellant-father to maintain the child has, also, not been challenged. After considering the fitness of the father in terms of the welfare of the child in the context of all the relevant facts and circumstances of the case, we are of the opinion that the welfare of the child will be better served in the custody of his father (the appellant) in comparison to his custody with his mother (Chandrawati). We are further of the view that in order to effectively discharge the duties which are cast upon the father, being his natural guardian, the appellant should be given the custody of the minor Sumeet alias Kshitiz as he is more suited person to see the welfare of the minor in comparison to the mother.
12. In the result, the appeal, filed by appellant-applicant Prakash Chandra Jain, is allowed. The judgment dated 5-11-92, passed by the learned Judge of the Family Court, Udaipur, is quashed and set aside. The application under Section 25 of the Guardians and Wards Act, filed by the appellant-appellant, is allowed and the respondent-wife Ms. Chandrawati is directed to hand-over the custody of Sumeet alias Kshitiz to his father Prakash Chandra Jain.