This is an appeal filed by the mother, against an order passed by Shri Subhash Vason, Guardian Judge, Delhi, D/-5-8-1983 in Guardianship Case No. 26 of 1981

2. The facts giving use to this appeal are, that a petition was filed by Arun Khanna under S. 25 of the Guardians and Wards Act, by which he sought the custody of Master Manoj Khanna his son.

3. In the petition under Section 25 of the Guardians and Wards Act, it was stated that Manoj Khanna was 3 years of age, that “he was born out of the wedlock” The expression “out of the wedlock”, occurs persistently in the pleadings which are filed in District Court at Delhi. It is not at all realised that the “wedlock” English language means “state of matrimony”, thus “out of the wedlock” necessarily means out of the state of matrimony. Making such assertions in the petition would automatically, make the child born to the parties during the subsistence of invalid marriage, an illegitimate one. It is about the time that the pleadings were drafted with care and caution.

4. It was stated in the petition that on the 1st Feb. 1981, the child Manoj Khanna was taken away from Sushma Khanna, the mother of Arun Khanna, and that a police report was made with regard thereto on 2-2-1981.

5. It was asserted that the mother of the minor Manoj was not a fit person to have the custody of the minor for the reason that she had been married to one Shanjhi Ram and that the minor was living with the mother Madhu Bala, and Sanjhi Ram.

6. It was further stated in the petition that Sanjhi Ram was a married man and that the mother of the minor had “eloped” with Sanjhi Ram to Pathankot.

7. The word “eloped” also seems to be an unwise choice as “elopement” is going away together of a man and woman with the intention of getting married. As it was asserted that Sanjhi Ram was a married man, obviously there could be no elopment of Madhu Bala with Sanjhi Ram.

8. It was stated in the petition that “elopement” of the mother came to the knowledge of the petitioner's father when he read a news about the arrest of Madhu Bala and Sanjhi Ram in a newspaper, which newspaper report was attached to the petition. It was also asserted in para 7 that the mother of the minor was “a lady of weak temperament and loose character as she felt tempted to elope with a stranger against whom criminal proceedings are pending on that account, the welfare of the minor is at stake if he remains in her custody”

9. It was also stated in the petition that the petitioner father was a Government servant and lived in old house No. 19/130, further address of the house was not given. In the title of the petition however, it was mentioned that this house was in Basti Sasai Rohilla, Delhi.

10. Reply to the petition was filed controverting the allegations made in the petition and it was submitted that the petitioner father was not entitled to be appointed as a guardian of the minor. It was inter alia asserted that the petition was mala fide.

11. Rejoinder was also filed.

12. Before the Guardian Judge, the main plank of the case of the petitioner father was that the mother of the minor is a person of weak temperament and that she is living-in-adultery, and in proof of that what was submitted, was an order of the Sub Divisional Magistrate, Pathankot. Also relied upon the report of the police party who had arrested Sanjhi Ram and Madhu Bala at Pathankot.

13. The reports at the police were marked as A-1 and A-3, and not exhibit marked (thus unproved), Substance of this unproved report of the police at Pathankot, marked A-3, which is in a script other than Hindi, most likely Gurmukhi, as conveyed to me by the counsel for the father Arun Khanna is : that Sanjhi Ram and Madhu Bala were sitting on the roadside at a point where it had a bend, along with the child. On seeing the police they tried to hide and on police getting suspicious caught them.

14. They were produced before the Magistrate of Pathankot who released them for their own surety for good behaviour, on surety bond of Rs. 1000/-.

15. The court below has mainly relied upon this the proved report to come to a conclusion that Madhu Bata was living in adultery with Sanjhi Ram.

16. Raydon : On Divorce, 14th edition, page 208 refers to the burden and standard of proof of adultery. It is said that there is a presumption of innocence in the first place, and adultery has to be established by a “preponderance of probability”, not beyond reasonable doubt as in criminal cases.

17. In this case Madhu Bala was examined as a witness. Questions regarding her being, found at Pathankot by the police party were put to her. Surprisingly no question was put to her which should have gone to establish that Sanju Ram and Madhu Bala were actually living together at Pathankot in one room for any length of time, or that they had spent even a single night in any room together. With this state of evidence it is not possible to come to a conclusion that Madhu Bala is living in adultery with Sanjhi Ram. The finding of the Guardian Judge, as it is not based on cogent, reliable evidence has to be set aside.

18. Madhu Bala admits in her statement that Sanjhi Ram is an employee in the same office as she is employed, i.e Central Water Commission at Faridabad. This cannot lead to a finding that she is living in adultery with him.

19. Mr. Dua before me also relied upon unproved report filed by Pahar Ganj Police. This report does not even bear any mark of identification, leave alone exhibit mark. The Police, on an inquiry, apparently made from the brother of Madhu Bala, stated in their own file that she had been married to Sanjhi Ram. This “report” cannot be taken to establish marriage or living together of Sanjhi Ram and Madhu Bala. This “report” cannot be the proof of Madhu Bala living in adultery.

20. I am of the view that it is not possible, in a case of guardianship cast, when assertions of immorality are made against one of the parties thereto that a finding can be given that one of the persons is guilty of committing adultery or living in adultery, on material which is as that has been put on record of that case. Even in guardianship case, if assertions of immorality, adultery or living in adultery are made, there should be the same standard of proof as has been applied in matrimonial cases. Where one party makes such assertions, he has to prove them in the same way as he would have to prove them in a matrimonial case.

21. Only the oral statements which have been made in this case are which can be referred to in this case. Madhu Bala has denied in her written statement that she is living with Sanjhi Ram or she is living in adultery with Sanjhi Ram. She has asserted that she is living with her parents. In the absence of duty properly proved documents, or other credible testimony it is not possible for me to come to a conclusion that Madhu Bala committed adultery with Sanjhi Ram, or that she is living in adultery with Sanjhi Ram.

22. I must also note that the concept ‘living in adultery’ was something which existed in the Hindu Marriage Act prior to the amendment of S. 13 by the Marriage Laws Amendment Act, 1976. This concept has now disappeared from the Hindu Marriage act, on and after the Marriage Laws Amendment Act, 1976, and it is, in my view, not right to bring this concept by a back door, as it were, in the Guardians and Wards Act or the Hindu Minority and Guardianship Act, when the legislature has specifically rejected such a concept. The finding of the Guardian Judge that Madhu Bala is living in adultery cannot in the circumstances be sustained and has to be set aside.

23. What we are mainly concerned; in this case as it relates to a petition under S. 25 of the Guardians and Wards Act is whether the custody of the minor Manoj is to be restored to the father.

24. I am of the view that the custody of the minor should not be restored to the father The reason of the assertion of his father Prem Kumar — is that on 1-5-1981, Manoj was taken away from the mother of Arun Kumar, while he was away to his office. Section 25 of that Guardians and Wards Act reads as under :—

“25. Title of guardian to custody of ward — (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 his 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.

(2) For the purpose of arresting the ward the Court may exercise the power conferred on a Magistrate of the first class by S. 97 of the Code of Criminal Procedure 1973.

(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.”

25. A reading of S. 25 shows that it requires that there must be a “ward” who leaves or is removed from the custody of the “guardian”. Ward is defined under S. 4 to mean :

“S. 4(3) “ward” means a minor for whose person or property or both there is a guardian.”

26. Guardian is defined in S. 4 to mean —

“S. 4(2) “guardian means a person having the care of the person of a minor or of his property or of both he person and property.”

27. There was no ‘Guardian’ appointed by the Court and therefore no ‘Ward’ on the date of filing of the petition. See 25 postulates pre-existing guardianship orders by the Court. There were none in this case.

28. In my view the provisions of S. 2 have to be read with the provisions of S. 6 of the Hindu Minority and Guardianship Act, which reads as under

“Section 6. Natural guardian of a Hindu minor —

The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property excluding his or her undivided interest amount family Property), are

(a) in the case of a boy or an unmarried, girl — the father and after him the mother.

Provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;

(b) In the case of an illegitimate boy or an illegitimate unmarried girl — the mother and after her the father

(c) in the case of a married girl — the husband;

Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this Section —

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit (vana prastha) or an ascetic (yati or sanyasl).

Explanation — In this Section, the expressions ‘father’ and ‘mother’ do not include a step-father and a step-mother.”

29. Section 2 of the Hindu Minority and Guardianship Act says that the provisions of this Act shall be in addition to, and not, save as hereinafter expressly provided, in derogation of the Guardians and Wards Act, 1890.

30. These provisions make it clear that the provisions of the Hindu Minority and Guardianship Act are in addition to the Guardians and Wards Act, and would be deemed to be incorporated in that Act in the manner and to the extent postulated by S. 2 of the Hindu Minority and Guardianship Act.

31. In my view S. 25 read with the aforesaid provisions of S. 4 of the Guardians and Wards Act, and Ss. 2 and h of the Hindu Minority and Guardianship Act mean that the “natural guardian” concept has to be applied in case where the parties involved in a guardianship case are both Hindus.

32. In this case it is not disputed that both the parties are Hindus. That being the case one has to give effect to provisions of S. 6 of the Hindu Minority and Guardianship Act. A natural guardian of a person of a minor who is under the age of 5 years is the mother

33. In the petition for appointment of a guardian it is stated that Master Manoj is aged 3 years. It is not disputed before me that he was born on 2-9-1978. The petition was filed on 2-7-1981. Manoj was thus under 3 years of age at the time of filing of the petition. At the time of filing of the petition, the natural guardian, in mew of the provisions of Section 6 of the Hindu Minority and Guardianship Act was the mother. In my view there have to be strong reasons for appointment of a person other than the “natural guardian as a guardian under the Guardianship Act. What was asserted in the petition was that the other, because of her “weak temperament” and because of the fact that she had allegedly “eloped” with Sanjhi Ram, she was not a fit person and that the petitioner should be appointed a guardian.

34. I have found above that it is not proved on the record that Madhu Bala had “eloped” with Sanjhi Ram. It is not proved on record that she had committed adultery or is living in adultery with Sanjhi Ram. As such this reason which as put forward in the petition for appointing the father as the guardian cannot be believed or acted upon. There as no cogent evidence that Madhu Bala is of “weak temperament”

35. Thus none of the reasons for which custody of Manoj was sought by the father stand established on the record. To my mind the father is not entitled to custody of the minor for the reasons that he alleged in the petition.

36. In any event it is well settled that the interest of the minor is paramount in determining the matters of his custody. This in Rosy Jacob was so held among other cases, in Rosy Jacob, AIR 1973 SC 2090 Veena Kapoor Dr (Mrs) v. Varinder Kumar Kapoor Shri, AIR 1982 SC 792; Mohd. Yunus v. Shamshad Bano, AIR 1985 All 217 and Raj Rani v. Subhash Chander, (1983) 23 DLT 240.

37. It is suggested by the father that Madhu Bala is a working person. She works at Faridabad and the child who is now 7 years of age, has to be left with the parents of Madhu Bala. To my mind, this is not adequate reason for giving the custody of minor to the petitioner father. The father also works. He is stated to be a Field Assistant in security organisation of Government of India. This obviously means that he has to remain outside his office, certainly outside his home. In his own favour the father says that he has got two unmarried sisters, mother and father who an look after the child.

38. In an answer to the above contentions on behalf of the father Mr. Arun Kumar has pointed out the Judgement of Chief Justice. I.D Dua and Justice S. Rangarajan, reported as Chander Prabha v. Prem Nath, AIR 1969 Delhi 283, wherein it was observed —

“Turning to the case on hand, the child under five years of age, in our opinion, needs most the tender affection, the caressing hand and the company of his natural mother and neither the father nor his female relations, however close, well-meaning and affectionate towards the minor, can appropriately serve as a proper substitute for the minor's natural mother. It may also be born in mind that physical needs and comforts alone are not enough for the proper healthy development of a human child. Parental affection is in-dispensable for this purpose and in the case of a conflict between father and mother, when the child is under five years of age, the mother has been rightly endowed with a preferential claim in regard to the child's custody. This is consistent with the rule of nature and in normal circumstances, deserves to be noticed and acted upon. The Court below obviously seems to have erred in not taking into account this important factor. To think, as the lower Court has done, that the Child not being a such in child, the father can keep him in his custody and on the reasoning to deprive the mother of the minor child's custody, who is only there years old, is, in our opinion, an incorrect approach which is not supportable on the legal position or on the existing material or on this record.”

39. No person other than a natural mother is, in my view, whether she works for a living or does not, or merely is a house wife, is in any case a better person for bringing up the child, in case of a male child at least up till such time as he attains puberty. Both the maternal love and maternal discipline are required for bringing up the child. I should not be misunderstood to say that paternal love and discipline are not required. That may be equally required but the mother is preferable to the relations of husband. It has been so held in AIR 1969 Delhi 283.

40. In my view in the facts and circumstances of the case, it would be better if the mother brings up the child Manoj at least till such time he attains the age of puberty.

41. This order which I make would not mean that the father will have no right to visit the child, At present however, I do not want to pass any order regarding the visiting rights of the father. For that he has liberty to move in the matter.

42. I have another reason for ordering that the mother should have the custody of Manoj and that is that he is now about 7 years of age. It has been shown to me that he is going to school, and a fair amount of time has to be spent in school and only a part of the time would be spent with his grandmother, if his custody is given to the father. When the working mother has the custody of a school going boy, he would have her company after she finishes her work. This has been the routine of Manoj ever since he has been with his mother. I would not like to alter this situation. As has been stated in S (BD) v. S (DJ), (1977) 1 All ER 656, the “continuity of cure” with the mother should not be disturbed. In that case dispute was about the custody of the boy aged 8 years and a girl of 7 years. And, as the custody of both was with the mother, the court ordered the custody of both the children to continue with the mother. I am in agreement with this view.

43. The case before me has got an unfortunate parallel with the English case. In the English case also there were accusations of immorality against the mother which stood established. In the instant case no immorality is established and the accusations made are disbelieved by me. I think that there should be “continuity of care” of Master Manoj with his mother.

44. In these circumstance. I set aside the judgement of the Guardian Judge D/-5-81963, and dismiss the petition filed by the petitioning father, and direct that the minor Manoj shall remain in custody of his mother Madhu Bala.

45. It is contended by Mr. Dua for Arun Khanna that no person other than the father should be appointed as a guardian without there being a finding that the father of the minor is not a fit person to be a guardian.

46. I am not appointing the mother as a guardian. What I have held is that she is entitled to retain custody of the minor. In any case in view of the law discussed herein above, which is to the effect that the welfare of the minor is paramount his welfare lies in continuity of care and custody with the mother. I do not agree with the contention that there has to be a finding that the father is, an unfit person before custody of a minor can be dealt with by the Court.

47. In view of the above discussion, the impugned order of the Guardian Judge, direction that Arun Khanna be given custody of minor Manoj, is set aside and this appeal is allowed with no order as to costs.

48. In view of this order, no separate order is required regarding other application.

Appeal allowed.