Kapur, J.:— This is a petitioner's appeal against an order passed by the Guardianship Judge, Jullundur, dated the 7th of July, 1950, dismissing the petitioner's application under section 25 of the Guardian and Wards Act for the custody of his daughter as against the petitioner's wife Indira and his father in-law Bakhshish Singh.

2. Manjit Singh is a son of Kanwar Jasjit Singh and is connected with the ruling family of what used to be Kapurthala State. On the 9th of February, 1943, he married Indira, who is the daughter of Sardar Bakhshish Singh, the proprietor of Sant Flour Mills, Jullundur. She was at that time a Graduate in Science. On the 19th of November, 1943, a daughter named Manjo was born. It appears that soon after the marriage differences arose between the husband and the wife and the husband started ill-treating his wife and even assaulted her by giving her severe beating. According to the wife, apart from the fact that the husband was a not tempered and violent person, he was making demands of money from the wife's parents and he ill-treated her in order to force the parents of the wife to give him large sums of money. The wife alleged that she was turned out by her husband in April, 1944, but what actually happened was that she was beaten by her husband and had to be taken away to her parents' house along with the daughter, Manjo. On the 8th of August, 1945, Manjit Singh sent a telegram from Amritsar to his wife saying:—

“Getting married good-bye for ever

Manjit”

3. In January 1946, the petitioner married again, a daughter of one Ram Narain. The wife Indira and the daughter stayed on with the father Bakhshish Singh.

4. On the 10th of August, 1946, the wife gave a notice to the husband demanding maintenance for herself and her child. In reply the husband on the 17th of August, 1946, denied that he deserted the wife or the little baby and said:—

“He is even now ready to receive her and the little baby and accord to them usual family treatment;”

and he refused to give her any maintenance. As a justification for his second marriage he mentioned that the wife had refused to perform connubial duties.

5. On the 13th of December, 1948, the petitioner made an application under section 25 of the Guardian and Wards Act praying for the custody of the child, Manju, to be given to him. He alleged that (1) the mother had become immoral, but he did not state when and how, (2) the child was not with the mother but with the maternal grandfather and (3) being the father and the natural guardian of the infant he had the preferential right to her custody. The respondents to this application were the wife, Indira, and her father Bakhshish Singh. In reply it was pleaded that the petition was not bona fide, that the petitioner was not fit to have the custody of the child as he was a person of violent temper, had ill-treated the wife and tortured her and that he had married again and it was not for the welfare of the infant that she be put in the custody of its father. It was also pleaded that the object was “to black-mail the respondent so as to extort money from the father-in-law, Bakhshish Singh.”

6. In a well considered judgment the trial Court held that the wife was ill-treated and therefore she had to leave the husband's house, that the petitioner wanted money from the father-in-law as his own father had left him debts to the extent of rupees sixty to seventy thousand and the application had been brought in order to extort money, that the petitioner was a person of violent temper and drank very heavily and had been guilty of misbehaviour that the wife was not a girl of immoral character and the imputations made against her were false, that the petitioner therefore was unfit to look after the daughter and also because his financial position was not upto very much and that it was not for the welfare of the minor that she be removed from the custody of her mother and maternal grandfather and be handed over to the petitioner. The petitioner has come up in appeal to this Court.

7. The appellant has first attacked the findings given by the learned Judge. He submits that the ill-treatment and cruelty to the wife has not been proved. I am unable to agree. Evidence produced by the respondents shows that on one occasion the wife was very severely beaten by the husband. This was because, while she was staying at Kapurthala House, the mother of the husband put pressure on the wife to get money from her father so that the debts of the petitioner's father, the late Kanwar, may be paid off. This the wife refused to comply with. She was very harshly beaten and she fell down and fainted. In support of this beating there is the evidence of Fit. Lt. Bhimbet who was examined on commission. He is an uncle of Indira and has deposed to the beating in the month of April 1944 when he was at Jullundur. He says that at about ten o' clock at night he got news that Manjit Singh had mercilessly beaten his wife in his house and as Bakhshish Singh was away at the time he got a couple of persons with him and went to Manjit Singh's house and found Indira lying in an unconscious state and with the help of other people he removed her from there and brought her to the house of Bakhshish Singh and sent for Dr. Narain Singh R.W 3 and Dr. Vidya Wati and also rang up Dr. Maharaj Das R.W 7. He was cross-examined and in cross-examination he has stated as follows:—

“Shree Manjit Singh has always been very bad tempered and cruel towards his wife Indira and has never shown any love of interest towards the child and the child being a female of tender age needs the care and companionship of her mother so in the interest of the child I do not consider the institution of the present proceedings by Shree Manjit Singh are proper especially in view of the fact that his financial condition is bad and the man himself is of unsound mind and shall fail to be a proper guardian of the female child.”

8. Dr. Narain Singh R.W 3 was the first person who arrived at the house of Bakhshish Singh to treat the wife. R.W 7, Dr. Maharaj Das, retired Civil Surgeon, came from Kapurthala to treat Indira. Nothing is shown against the testimony of Dr. Narain Singh or of Dr. Maharaj Das. They are both respectable doctors and there is no reason why they should give false evidence. It may be that they are friendly towards Bakhshish Sinph, but that does not seem to be any reason why they should perjure themselves. There is another witness Sarbjit Singh who is a cousin of Manjit Singh and he is R.W 18. He has deposed to his going to the house of Manjit Singh after the wife was beaten. Counsel submits that he is inimical towards the petitioner. It may be that he is, and it was admitted by this witness that his relations with the petitioner are not very cordial. Besides this oral evidence, there is a letter, Exhibit R/1, which was written on the 3rd of November, 1944, by Manjit Singh to his father-in-law and mother-in-law. It is countersigned by Mr. Ahsan-ul-Haq, retired District and Sessions Judge. In this letter it is admitted by Manjit Singh that he had been ill-treating and torturing his wife and he promised that in future he would not do so. Counsel for the appellant submits that this letter was obtained from him under false pretences. He was anxious to get his wife back and it was at the instance of the mother of Indira that this letter was written. It may be that he may have written the letter in order to induce the wife to come back to him, but I am unable to believe that anything stated therein was written at the instance of the mother in-law, Mrs. Bakhshish Singh. This letter clearly proves that the conduct of the petitioner towards his wife had been cruel. If this letter had been written at the instance of the mother-in-law and the wife had not gone back, as indeed she did not, the first thing that Manjit Singh would have done was to rebut the contents of the letter. It is admitted that Mr. Ahsan-ul-Haq was a great friend of the father of the petitioner, but the petitioner denied that the letter was written at the house of Mr. Ahsan-ul-Haq. On this evidence I hold that the finding of the learned Judge is justified that the petitioner ill-treated his wife and severely assaulted her and as a result of that she had to leave her husband's house.

9. It was next submitted that Indira was a girl of immoral character and had a liaison with one L.P Jaiswal. The evidence in support of this allegation is of two persons, A.W 1 Basant Kaur and A.W 2 Mehnga Ram. After going through the evidence I am of the opinion that the whole thing is a tissue of lies and is false from the beginning to the end. Indira has denied these allegations on oath, and it is a significant fact that before the present application under section 25 of the Guardian and Wards Act was made, this allegation is not proved to have been made at any time. The petitioner in the witness-box has no doubt stated that in his notice which he sent through his pleader he had mentioned this fact, but this is not in the notice. It is regrettable that a man belonging to a family like the petitioner should have made these unfounded and wholly false allegations against a respectable girl like Indira.

10. Evidence has been given by R.W 2 that the petitioner is a cheat and by R.W 4 Captain Hara Singh that the petitioner drinks very heavily. Capt. Hara Singh as a witness stated that at Ludhiana on the occasion of the victory in Tunesia Celebrations the petitioner had got absolutely drunk and had to be carried home. Nothing has been brought out against the evidence of Captain Hara Singh to discredit his evidence. R.W 5 Parma Nand has deposed that when he left his coat in one of the rooms of the petitioner when he had been sent there to prepare an inventory his wrist watch which was in the pocket of the coat got lost and a report of this was made to the Subordinate Judge, Jullundur.

11. The respondent Indira as a witness has deposed that the petitioner was a person of violent temper. His bad temper is deposed to by R.W 14 Pandit Chandi Parshad who was his tutor when he was a student in the D.A.V College. There is also the evidence of Dr. Mathur, Health Officer of Lahore. He is R.W 16. From this witness the petitioner had taken a portion of his house in Lahore on lease. He has stated that the temper of the petitioner was ‘volatile’ and “gets uncontrolled”. When the witness demanded rent the petitioner became violent and pointed his revolver towards him and he made a report to the police and when the petitioner was taken to the Police he apologised to this witness. Nothing has been brought out in cross-examination to discredit the evidence of this witness. Hem Raj R.W 17 is a process-server and he went to serve the respondents in this case. The petitioner wanted him to put in a false report of refusal of service by the respondent and when he refused the petitioner threatened to shoot him. A lady intervened and then he left the place. Then there is the evidence of Mr. Sundar Das Midha who was at that time the Deputy Commissioner of Jullundur. He has deposed about the conduct of the petitioner in regard to the complaint made by Dr. Suraj Kant. He sent his S.P to make an enquiry and it was reported to him by the Superintendent of Police that the petitioner “had been misbehaving not only towards the son of Suraj Kant but also towards his daughter”. The Superintendent of Police also reported to him that the petitioner was an undesirable person.

12. It was submitted that the evidence of Mr. Midha is not admissible in evidence. The question is not as was said in McSweenry v. Maragarete Arbuthnot . 35 C.W.N 158 at p. 159., whether the appellant is guilty of the charges which were made against him. The fact that these were the charges against him are enough to show his character. After going through this evidence I am of the opinion that the finding of the learned Judge as to the character of the petitioner was fully justified in that he drank heavily, he was a man of bad and violent temper and he did not hesitatete threaten people with shooting if it came to that. There is evidence to show that he is a kleptomaniac but the evidence on this point is not conclusive.

13. The learned Advocate for the appellant next contended that the finding that the petition is not bona fide is not justified. It is not denied that the petitioner's father had left a large amount of debt when he died. The wife has stated on oath that the reason that her husband as ill-treating her was to extort money from her father. There is a document, Exhibit R. 6, dated the 11th of March, 1946, which is a telegram sent from Jullundur to Indira when she was studying for her M.A in Lahore and was staying in Sohan Lal Hostel. It says:—

“I deserted you for your parents love for money stop Now I have married stop I disown you as my wife…………..Reserate (?) you to remarry to your like.

Manjit Singh”

14. There is also a document on the record R. 2 which reads as follows:—

“If they do not put this decision into effect on Monday next then in that case I shall not afterwards accept even ten times more and I shall consider the thing closed for ever.”

15. The respondents' case is that he had asked for money and had written this in connection with that money. The petitioner has not given a very satisfactory explanation of this. The petitioner has admitted as a witness that his father-in-law offered him Rs. 20,000 if he would divorce his wife but he was not prepared to divorce the wife although he was prepared to accept the Rs. 20,000.

16. There is then the evidence of Brij Lal R.W 11, in this connection, who says that the petitioner demaded Rs. 20,000 to Rs. 30,000 as hush money for not making a claim to the custody of the child. I hold therefore that the application made by the petitioner is not bona fide. I may here refer to that portion of the evidence of Indira where she has stated that while she was a student of the M.A class in Lahore Manjit Singh harrassed her and made her life impossible and she had to make a complaint to the Superintendent and the matter was then taken to the police. Superintendent of Police Janak Raj has made a report to this effect and the complaint which was made by the father, Bakhshish Singh, is also on the record.

17. I may in passing refer to the letters Exhibits R. 4 and R. 5 sent by Rajkumari Amrit Kaur to Indira in which she has asked Indira to get into touch with certain persons in order to do social work which the latter wanted to do.

18. In my opinion, it is not to the welfare of the infant that she be handed over to the father. In the first place he is a man of violent and uncontrollable temper. The evidence in regard to him does not speak very well of him. There is sufficient evidence in regard to his misbehaviour. He has treated the mother of the infant with cruelty. From the date of her birth right upto the date of the application the petitioner took no interest in her. He never sent any money for her maintenance. He has never tried to see her or take any interest in her education or upbringing. When the notice was first given in August, 1946, for maintenance by Indira, he expressed the desire to get back the child, but he did not do anything for another two years in regard to getting her back. On the other hand, there is evidence to show that he was demanding hush-money in order not to demand the custody of the child. He has got another wife and two children. According to his own showing his income is about Rs. 500. How he proposes to spend “Rs. 300 to Rs. 450” out of this on the education of this child has not been explained to me. At the present moment the child is very well looked after and she is being properly educated. In my opinion, it is not a fit case in which the father could or should be given the custody of the child.

19. It is submitted by counsel for the appellant that the father has an inalienable right to the custody of the infant as he is the natural guardian. As an abstract proposition of law it may be correct, but every case has to be considered in the light of its own facts. The real test in all cases is the welfare of the minor. In Gangarapu Chinna Sambayya v. Polepalli Rudrappa . A.I.R 1935 Mad. 568. it was held that the right of the father can be defeated if the Court is of the opinion that it is in the interest of the minor that he should remain in the custody of a person other than the father. The question in every case is the infant's welfare and also the bona fide nature of the application of the father and if it is found that it is not bona fide, it will be a good reason for not disturbing the custody of the minor. In this case the ill-treatment of the minor's mother was taken into consideration and it was held that the father was not a proper person to have the custody of the child.

20. In Muthuswami Chettiar v. K.M Chinna Muthuswami Moopanar . A.I.R 1935 Mad. 195., it was held that each case must depend on its own circumstances, but the right of the father is liable to be defeated where it is shown that it is in the interest of the minor and for his welfare that it should remain where it is; and if it is proved that the father has shown lack of interest in the minor, it is a circumstance of great importance and will bear upon the bona fides of the petition of the father.

21. In another case by the same learned Judges, G. Ponniah Asari v. Suppiah Asari . A.I.R 1935 Mad. 363., it was held that the welfare of the minor is to be considered in an application by the father for the custody of the child and past indifference and neglect or tacit consent in the infant being brought up by other relatives is a relevant consideration.

22. In Mst. Prem Kaur v. Banarsi Das . I.L.R 15 Lah. 630., it was held by Bhide, J., that the sole criterion for decision in an application under section 25 is the walfare of the minor.

23. A similar rule was laid down in Seeyali Veetil Abubacker v. Ovinakath Vayyilapurayil Mariyumma . A.I.R 1946 Mad. 110..

24. In Saraswatibai Shrioad Ved v. Shripad Vasanji Ved . A.I.R 1941 Bom. 103., it was held that “the paramount consideration in the matter of a custody of minor of tender years is the interest of the child rather than the rights of the parents 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 cases.

25. Appellant relied on the inalienable nature of a father's right and in support of his contention he referred me to Basant Kaur v. Gian Singh . A.I.R 1939 Lah. 334., which is a judgment of Bhide J., but in that case the wife had remarried with the permission of the husband and one of the conditions of allowing the wife to remarry was that she would hand back the child to the father who had also remarried and the case was decided on its own peculiar facts. Even there it was held that the father can be deprived of the custody of the child for strong reasons.

26. Reliance was next placed by the appellant's counsel on Sukhdeo Rai v. Ram Chandar Rai . I.L.R 46 All. 706.. This again was decided on its own facts. The dispute was between the father and the mother's relations, the mother being dead, and it was said to be in the interest of the minor that it should be given to the father.

27. In Mussammat Siddiqunnisa Bibi v. Nizamuddin Khan . A.I.R 1932 All. 251., the mother was dead and remarriage of the father was held not to be a disqualification. It might have been in that case, but in the present case I am unable to agree that the remarriage of the father is not a ground to be taken into consideration,

28. Similarly in Kaluram v. Nagulal . A.I.R 1929 Mad. 81., the dispute was between the maternal grandfather of the child and its father. This case again was decided on its own peculiar facts.

29. A perusal of these authorities does not show that the father's right is absolute. It is circumscribed by the considerations of welfare of the minor. If the minor's welfare requires that custody should not be given to the father, he cannot get it merely because he happens to be the father. I have already given the various circumstances of this case and in my opinion it has not been shown that the father is not a fit person to have the custody of the child.

30. Reference was next made to Kaliappa Goundan v. Valliammal . A.I.R 1949 Mad. 608., where the custody was given to the mother, but the father was allowed to have the child three days in every quarter. On the basis of this authority it was submitted by the appellant that the father should not be deprived of the custody of the child altogether and that he should be allowed to keep the child for some periods during the year. In my opinion the present is not one of those cases. As was submitted by counsel for the respondent the petitioner has never really tried to have any interest in the child. He has never tried to see the child or to do anything which would show that he has any kind of affection for and interest in her. The petition is not bona fide and is motivated by pecuniary considerations. The contention of the respondent is in my opinion right and no case has been made out for allowing this arrangement nor was this raised even in the grounds of appeal. I am unable to make any order in favour of the father in the circumstances which have been proved in this case. In the result, this appeal fails and is dismissed with costs in both the Courts.

31. Appeal dismissed.