A.M Bhattacharjee, C.J:— The petition filed by the respondent-father for the custody of his child, which has given rise to this appeal before us, has been labelled as one under section 6 of the Hindu Minority and Guardianship Act. Section 6, however, only provides that in the case of a legitimate child, the father, and after him the mother, is the natural guardian, but that the custody of the minor child who has not completed the age of five years, shall ordinarily be with the mother. This section therefore, by itself, does not contemplate of any application by the father for the custody of a child against the mother or any other relation of the child. Such a petition by the father for the custody of the child in the Karnataka decision in A.V Venkatakrishnaiah v. S.A Sathyakumar, AIR 1978 Kar 22, was labelled as one under section 10 of the Guardians and Wards Act, 1890, and was disposed of accordingly. We, however, do not see how section 10 of that act also can have any application to a petition filed by a father for the custody of his minor child.

2. Section 10 only provides for the form of application under section 7 of the Guardians and Wards Act for the appointment of or declaration in respect of a person to be the guardian of the person or property of the minor. Neither the case at hand before us is, nor the case before the Karnataka High Court was, in any way arising out of such an application for appointment or for declaration of a guardian. This aspect does not appear to have been adverted to by the Judge, Family Court, in the judgment under appeal.

3. The petition, however, though labelled as one under section 6 of the Hindu Minority and Guardianship Act, may be treated as one under section 25 of the Guardians and Wards Act. For it is now well settled that even where a child in the factual custody of another, is detained by the latter against the will of the legal guardian, the child shall be deemed to have been removed by the other within the meaning of section 25(1) of the Guardians and Wards Act. In the case at hand, the maternal grandmother is in fact having the child in custody, though having no legal right to such custody and, therefore, her retaining or detaining the child against the will of its legal guardian, the respondent-father, would amount to removal within the meaning of section 25(1). The celebrated decision of the Privy Council in Annie Besant v. Narayaniah, AIR 1914 PC 41, clearly lends assurance to this view. Section 25(1) reads thus:—

“25. (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court if it is of opinion that it will be for the welfare of the ward to return to the custody of the 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.”

4. Even though the expression ‘may’ has been used, we find no reason as to why the Court shall not order return “if it is of opinion that it will be for the welfare of the ward to return to the custody of the guardian” and, in our view, therefore, the expression ‘may’ in the context of the words in itaalics hereinabove does not confer discretion but conveys only a mandate. But whether the jurisdiction of the Court under section 25(1) is mandatory or discretionary, the Court can order return if, and only if, it is of opinion that such a return is for the welfare of the ward in the context of the facts and circumstances of the case.

5. The tendency of the modern Courts is to look to the substance which alone counts and takes precedence over any form or technicality; the contents count and not the container. We would, therefore, proceed to treat the petition giving rise to this appeal, though labelled as one under section 6 of the Hindu Minority and Guardianship Act, as one under section 25 of the Guardians and Wards Act, as the allegation of the respondent-father is that his minor child has been detained by his mother-in-law against his will and he being the natural guardian under section 6 of the Hindu Minority and Guardianship Act, such detention by the mother-in-law would amount to removal within the meaning of section 25(1) of the Guardians and Wards Act. But, as already indicated, our reading of the provisions of section 25(1) is that even if a child is in the custody of one having no legal right thereto and its welfare is being reasonably looked after in the manner it should, the legal guardian cannot claim an order of return merely on the strength of his legal right and parading his financial or other capacity, unless the Court forms a definite opinion that even though its welfare is reasonably looked after, such order of return would be for its better and further welfare. If the welfare of the wards is in fact duly taken care of by the person who has the factual, though not the legal, custody, the expression “welfare” in the phrase “it will be for the welfare of the ward to return” in section 25(1) should reasonably mean more or better or further welfare. We would, therefore, order the return and the consequential change of the existing custody only if we are satisfied that the welfare of the child, which is the primary and paramount consideration in all such matters, warrants such a course. That is the view which one of us took while speaking for a Division Bench of the Calcutta High Court in Raj Kumar v. Babara, AIR 1989 Cal 163 at 174, and we find no reason to deviate therefrom.

6. The Judge, Family Court, has nowhere come to any finding, even remotely, that the welfare of the child, who is now aged about four years, has not been properly looked after by the maternal grandmother and her relations. What has mainly, if not solely, weighed with the Family Court Judge is that the father is nevertheless the legal guardian and the maternal grandmother has no legal right. The Judge has relied on a Single Judge decision of the Madras High Court in S. Abboy Naidu v. R. Sundara Rajan, AIR 1989 Mad 129, and has extracted a portion from the Head Note of the judgment and the Judge thought that the aforesaid decision is a clear authority for the view that in such a case the legal guardian should always get the custody. It is indeed a deplorable way of reading or referring to a decision while confining to the head-notes only. A careful reading of the decision itself would have convinced the Judge that in that Madras decision, the father was allowed custody, not only because he had the legal right thereto, but because it was found that the maternal grand-parents, who were detaining the child in custody, were not in a satisfactory position, due to old age and also financial and other reasons, to look after the welfare of the child.

7. We have no doubt that the law on the point is now fairly well settled having undergone appreciable changes as a result of the approach of the modern Courts being more humane, pragmatic and realistic than being merely legalistic and it does not admit of much doubt or dispute, though difficulties may arise in application of those well settled principles to a given case. As pointed out by the Supreme Court in Rosy Jacob, (1973) 1 SCC 840 : AIR 1973 SC 2090 at 2100, merely because the father loves the child and is legally entitled to its custody and also is not shown to be otherwise undesirable or unfit, cannot necessarily lead to the conclusion that the welfare of the child would be better promoted or looked after by granting the custody of the father. As has again been pointed out by the Supreme Court in a later decision in Thrity Hoshie Dolikuka. (1982) 2 SCC 544 : AIR 1982 SC 1276, “it is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor's ‘interest’ and “in considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor”.

8. The Judge, Family Court, has also apparently relied on an unreported decision of the Orissa High Court in Nilkantha Pati v. Ananta Misra, AIR 1990 NOC 81. The report only contains a sketchy head-note which only states that pendency of a criminal case against father and the mere possibility of his re-marriage are not, by themselves, grounds to refuse him custody. How we wish that Courts get rid of this habit of relying on these sketchy, skeletal and cryptic notes of cases as, far from leading us to correct decision, they are very often likely to mislead. At any rate, there is nothing in that skeletal report which goes to show that the father must and almost as a matter of course get back the custody of a minor child merely on the strength of his legal right, even though it is not shown that in the existing custody where the child is, it has not been looked after in a manner it ought to have been.

9. It is not disputed that the child, born in January, 1990, is all along staying with its maternal grandmother, appellant before us, since the death of its mother almost immediately after its birth. As already pointed out, it is not the finding of the Family Court, nor do we find any material on record to hold, that the child, now about four years' old, has not been properly looked after and its welfare has not been duly attended to or taken care of by the appellant-maternal grandmother and members of her family. The Judge, Family Court, has referred to the fact that the maternal grandmother is rather old. It appears from the record that the appellant is only aged about 55 years and that cannot justify the Judge branding her as “too old”. The Judge has also taken note of the fact that the maternal grandmother is in service and her duty hours are from 7.00 a.m to 2.00 p.m That alone, by itself, cannot be regarded to be a disqualification and rather may go to show that she is quite physically fit and mentally alert. We would again state, at the cost of repetition, that the Judge has nowhere found, even remotely, that the maternal grandmother has not been looking after and attending to the welfare of the child duly and properly. It is also in evidence that the maternal grandmother has her sons and daughters-in-law and has also a daughter residing with her and, that being so, there is no reason to think the child is not properly attended to even during the hours when the maternal grandmother would be away for her service.

10. We have also taken note of the fact that the respondent-father has again married in 1992 and, as will appear from the impugned judgment, he has also got one child from his second wife. While the mere fact that the father has re-married and has another child from such marriage, may not automatically disqualify the father to have the custody of his tender child of the first marriage, we have no doubt that the step-mother with a new-born baby is not expected to be a good substitute for the child's own maternal grandmother, who is looking after it since its birth. We are, therefore, of the view that since the maternal grandmother is in fact having the child in her custody, who is now aged about four years, since the birth of the child and it has not been shown that her custody is in any way not conducive to the welfare of the child, the same should not be changed or altered except for compelling reasons and we have not, on the materials on record, found any reason, far less a compelling one, to persuade us to direct such change or alteration. We have reminded ourselves of the observations of Lord Mac Dermot in the House of Lords in J. v. C., 1969-1 All ER 788 at 824, to the effect that “even though some of the authorities convey the impression that the upset caused to a child by change of custody is transient and matter of small importance”, “a growing experience has shown that it is not always so and that serious harm even to young children may, on occasion, be caused by such a change”. There should be no manner of doubt that a child of such tender age ought not to be subjected to tugging by zealous or jealous relations, whoever they may be, fighting with the bellicosity of relentless combatants. If we may repeat, it is settled beyond doubt that in matters relating to custody of child, it is not the legal right of the claimant which is decisive, but it is the welfare of the child which is the primary and paramount test and no one should be allowed to bug off a child from its existing custody by merely brandishing his or her legal right or parading his or her financial affluence. We must note here that in the Division Bench decision of the Karnataka High Court in A.V Venkatakrishnaiah (supra), to which we referred at the outset for some other purpose, the facts were very much similar to the facts of our case at hand, being a contest between the father and the maternal grant-parents of the child and the Division Bench also adopted the same course which we are adopting here.

11. It is true that under section 17(3) of the Guardians and Wards Act, the Court may interview the child and “if the minor is old enough to form an intelligent preference, the Court may consider that preference”. Not that the Court must, but that the Court may and, therefore, may not also, where, as here, such interview, in view of the very tender age of the child in question and its long association with its maternal grandmother since its birth, would obviously be an exercise in futility. Reference, if need be, may be made to the observations of the Supreme Court in Thrity Hoshie Dolikuka (supra at 1291) for the purpose.

12. We accordingly allow the appeal and overturn the order of the Judge, Family Court, directing return of the child to the respondent. But we must, however, make it clear that this order of ours would not, as it cannot, prevent the respondent from initiating proceedings afresh for the custody of the child at any later stage and from obtaining such order on making out a case therefor to the satisfaction of the Court. And we would also make it clear that even though we are setting aside the order of the Judge, Family Court, directing return of the child to the respondent, the appellant must allow all reasonable facilities and opportunities to the respondent-father to have access to his child so that the father and the son do not stand alienated from each other and are able to foster a proper and a healthy filial relationship and that the respondent would be entitled to move the Family Court again if he is denied reasonable opportunities to meet the child.

13. The appeal is accordingly allowed as stated above, but without any order as to costs.

Appeal allowed.