Bishan Narain, J.:— This is an appeal from the order of the Guardian Judge, Jullundur, ordering Maya Devi, mother of the two minors, and Ram Lal to restore the minors custody to their father Amolak Ram. The present proceedings under section 25 of the Guardians and Wards Act were started in March 1954 by Amolak Ram on the ground that his wife Maya Devi had become unchaste and was living with Ram Lal and therefore it was not desirable that his minor daughter and his minor son should be allowed to live with them. Admittedly in March Ram Lal and Maya Devi were living in Ludhiana along with the miners while the present application was made in the Court of the Gaurdian Judge, Jullundur. The respondents raised a preliminary objection that as the minors were ordinarily residing in Ludhiana the Jullundur Court had no jurisdiction to hear this petition. This objection was over ruled and then the evidence was led by the parties on merits. Some time after the respondents raised a new plea to the effect that the minors were not the children of Amolak Ram but that they were the children of Ram Lal and that for this reason also Amolak Ram was not a fit person for their custody. The Guardian Court came to the conclusion that Amolak Ram is the minors father and that as their natural guardian he is entitled to their custody, particularly when their mother is openly leading an immoral life by living with Ram Lal who is not her husband. Maya Devi and Ram Lal are dissatisfied with this decision and have filed the present appeal in this Court.

2. The learned counsel for the appellants first urged that the Jullundur Court had no jurisdiction to hear the petition. The Guardian Judge held in favour of his jurisdiction on the ground that as the applicant was living in Jullundur the minors must be deemed to be in his constructive custody. Now, section 25 of the Guardians and Wards Act lays down that the Court may order the custody of the wards to their guardian and may cause the minors to be arrested for this purpose. Section 4(5) of the Act defines the “Court” as one having jurisdiction to entertain an application under the Act for an order appointing or declaring a guardian. Therefore an application under section 25 of the Act should be made to a Court which has jurisdiction to appoint and declare a person as guardian.

3. Under section 9 such a jurisdiction vests in the Court of a place where the minor ordinarily resides. Thus an application under section 25 lies only to a Court of a place where the minor ordinarily resides. It appears to me that in this view of the matter it cannot be said that a minor ordinarily resides where his guardian lives when the minor is not in the custody of that guardian. Where a minor ordinarily resides is a question of fact to be decided on the circumstance of each case. In the present case the minors are now about 6 and 4 years old and at the time of the application they were about 4 and 2 years old. The case of Amolak Ram is that they were born in the house of their maternal grandfather which is within the jurisdiction of Jullundur. It is not his case that the minors ever resided with him. Maya Devi, Ram Lal and Hans Raj brother of Maya Devi have stated that the minors were born in Ludhiana in the house of Ram Lal and have been living there with their mother ever since. Hans Raj denies that his father or his mother ever lived in village Malloopota where Amolak Ram alleges the minors were born. May Devi has produced entries from municipal birth registers showing that a girl and a boy of about the same age as the present minor were born to Ram Lal in Ludhiana. Amolak Ram has not produced any such entries, nor any independent or reliable evidence to show that they were born in village Malloopota or within the jurisdiction of Jullundur Court. Amolak Ram has admitted that he had filed a complaint against Maya Devi etc., sometime in 1950 under section 498, Indian Penal Code, and that another complaint was filed under the same section sometime in 1951. He had also filed a suit for restitution of conjugal rights in October 1952 and had obtained an ex parte decree on the 26th of March 1953. It is not his case that Maya Devi ever complied with the decree for restitution of conjugal rights that he had obtained against her. It may be stated here that the minor girl was born in 1951 and the boy was born in 1952. It is clear from all this evidence and from the evidence of Maya Devi and her witnesses that she had been living in Ludhiana with Ram Lal since a considerable time without any intention to ever reside in Jullundur or with Amolak, Ram. The minors have been admittedly living with her all along. It must therefore be held that the minors ordinarily reside in Ludhiana and cannot be held to be so residing in Jullundur. In view of this finding I hold that Jullundur Court had no jurisdiction to entertain this petition under section 25 of the Act.

4. Shri Som Datta Bahri has, however, urged that the appeal should not be accepted on the ground that Jullundur Court had no jurisdiction to entertain the application and has invited my attention to section 21 of the Code of Civil Procedure. He has urged that the appellants were not prejudiced by the trial in Jullundur and that there is no suggestion even that they were so prejudiced. It is true that by virtue of section 141, Civil Procedure Code, the Guardian Court should follow the procedure laid down in the Code as far as possible. Taking into consideration, however, the nature of the proceedings in the guardianship Court and the jurisdiction given to the Guardian Court over the minors and necessity of its watching over minors' welfare it appears to me doubtful if the provisions of section 21 should be strictly applied to proceedings under the Guardians and Wards Act. It is, however, not necessary to decide this matter finally as the appeal succeeds on another ground.

5. It was argued before me that the minors were, in fact, the children of Ram Lal as Maya Devi had left Amolak Ram within three days of her marriage on finding that Amolak Ram was impotent. I do not consider it necessary to decide this question in these summary proceedings.

6. This brings me to the question of welfare of the minors. Under section 25 of the Act an order for custody is to be made to protect the minor's welfare. Now the children are of tender age, now being 6 years and) 4 years old. Amolak Ram has nowhere stated the these children ever lived with him. It is clear from the evidence on the record that, they have never lived anywhere but with their mother and Ram Lal. There is no suggestion that they are not happy with them or that they are not being looked after properly. Nor is there any suggestion that the arrangement of minor's education, lodging or clothing by Maya Devi is not adequate or is not in accordance with the minor's status or position in the society to which Amolak Ram belongs. Amolak Ram never took any interest in these children for four years but suddenly now has become anxious to get their custody. Taking into consideration the complaints that he has been filing against Maya Devi and others, it appears to tee that the application now made by him is not a bona fide application and has been made with the ulterior object of getting Maya Devi to return to him and it has not been made in the interest of the children. Moreover, there is no evidence that Amolak Ram is in a position to look after them. In rebuttal he has stated that his mother is living with him, but there is no evidence that she is willing or able to look after these children whom she had never seen before. Amolak Ram has based his petition on the sole ground that as a natural guardian he is entitled to their custody but, in my opinion he has no such indefeasible right in law if the exercise of such a right is not in the minors' welfare. In the present case it is clear to me that it is not in the interest of the minors that their custody should be given to Amolak Ram.

7. It was, however, strenuously argued by Shri Som Dalta Bahri, the learned counsel for Amolak Ram, that Maya Devi is openly living in adultery with Ram Lal and therefore she is not a fit and proper person to have their custody. In this case it is admitted that Maya Devi has a son who was at the time of the application about two months old and he is not claimed by Amolak Ram as his son. Maya Devi herself has stated that all her three children are from Ram Lal. She has admitted that she is not married to Ram Lal and that she was married to Amolak Ram with whom she lived only for three days. Therefore, it must be held that Maya Devi is living with Ram Lal, though not married to him. It has often been held that when the mother of the minors is living an immoral life then she should not be given the custody of children vide Mt. Lalita Twaif v. Paramatama Prasad . A.I.R 1940 All. 329.. I am however, unable to subscribe to the view that this is a matter of law and that it must be observed rigidly. This matter should be decided on practical and humanitarian and not sanctimonious grounds. In Mrs. Winifred McQullan v. Mrs. Winfred Chapman . 57 I.C 13., custody of a young girl was given to a person who was living with Mr. Chapman though not married to him. If the mother of a minor is living an immoral life then to that extent it may be considered to her diseredit but there may be circumstances like the present one in which in spite of this infirmity it may be for the welfare of the minor to give custody to the real mother. Maya Devi has been living with Ram Lal since some considerable time and according to her since the death of Ram Lal's wife on the 3rd of February 1950. This relationship is admittedly irregular but they are living happily in the same house as man and wife. It is not the case of Amolak Ram, nor is there any evidence that Maya Devi has been leading an irregular life in the sense that she is leading a promiscuously unchaste life. The atmosphere in Ram Lal's house is not alleged to be such as to have bad in once on these minor children. Just now the children are too young to be aware of the fact, that their mother is not legally wedded to Ram Lal. They must be taking Ram Lal to be their father. Their living with them cannot possibly have any adverse effect of their character at this age of their life. Maya Devi and Ram Lal have affection for these children and it does not appear to me right to deprive these children of their affection. The minors are still very young and their removal to strange, and unfamiliar surroundings cannot possibly be considered to be conducive to their welfare. They have been brought up under particular surroundings and their removal from these surroundings if not likely to make them happier than they are now. It appears to me improper to compel them at this tender age to live with Amolak Ram and his mother whom they must necessarily regard as strangers. At least for some years these children should be allowed to live with their mother and Ram Lal and should not be made over to Amolak Ram and his mother who have never shown any interest in their well-being and welfare.

8. For all these reasons I am of the opinion that for the time being the custody of the minors should remain with Maya Devi. Such an order is justified if it is for the welfare of the minors and in my opinion it is so. One such instance is reported in Jwala Prasad Saha v. Bachu Lal Gupta . A.I.R 1942 Cal. 215.. Amolak Ram may, if so advised, apply again for custody of these children after some years and then the matter can again be decided in accordance with law and according to circumstances then existing.

9. I therefore accept this appeal and dismiss Amolak Ram's application under section 25 of the Guardians and Wards Act. There will be no order as to costs.

10. Appeal allowed.