(1.) THIS is an appeal under section 47 of the Guardian and Wards Act (hereinafter referred to as the Act).

(2.) THE parties are Mahomedans and areas such governed by Mahomedan law. The appellant Kalimunnisa, aged about 22 years was married to the respondent Shah Salim Khan aged about 30 years. On 10-10-1964 a son named Shahjahan was born to them. Some time in the year 1969 or so the appellant was divorced by her husband. Since then Shahjahan has been living with his mother. It appears that the appellant had instituted proceedings against the respondent for maintenance of the minor Shahjahan and a sum of Rs. 10 per month was fixed by the Court for the maintenance of the minor. After shahjahan completed the age of 7 years, the respondent filed an application under section 10 of the Act praying that he be appointed as guardian of the minor and the minor be placed in his custody. This application was, opposed by the appellant. The application was, however, allowed by the trial Court and the appellant was directed to transfer the custody of the minor to the respondent within a period of 15 days. Being aggrieved by the said order the appellant has preferred this appeal.

(3.) SHRI K. . VI. Agrawal, learned counsel for the appellant raised a preliminary objection that since the respondent being the father of the minor is his natural guardian under the personal law, it was not necessary for him to file an application under section 7 for appointing and declaring him as his guardian and, therefore, the entire proceedings are misconceived. There is no doubt some force in this contention. It was not necessary for the respondent to file an application for declaring or appointing him as guardian. The proper course for him was to file an application under section 25 of the Act for obtaining custody of the minor. From the language of this section it no doubt appears that it is attracted only where a ward leaves or is removed from the custody of a guardian but the repudiation by a person in charge of a minor of the right of the guardian to resume the custody of the minor amounts to removal within the meaning of this section. In Brijendra Narayan Ganguly v. Chinta Haran sarker, 1961 MPLJ 208. [LQ/MPHC/1960/322] it was held that the act of the non-applicants in repudiating the right of the applicants to resume custody of the child amounted to removal within the meaning of section 25 of the Act. Thus, the application filed by the respondent in the lower Court may be treated as an application under section 25 of the Act and dealt with accordingly.

(4.) UNDER the Mahomedan Law father is the primary and natural guardian of his children. The mother is entitled to the custody of her male child until he has completed the age of 7 years and of her female child until she has attained puberty; but even this right of custody of the mother is subject to the supervision of the father which he is entitled to exercise by virtue of his being the guardian of the minor under the law. In fact under section 19 of the Act, the court has no jurisdiction to appoint or declare a guardian of the person of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor. It has not been expressly pleaded by the appellant that the respondent is unfit to be the guardian of the minor. No evidence on the point can, therefore, be looked into and in fact the learned counsel for the appellant did not urge before me that the respondent is unfit to be the guardian of the minor. The application filed by the respondent must, therefore, be considered treating him as the lawful guardian of the minor.

(5.) UNDER section 25 of the Act the Court is competent to make an order for the return of the ward to the custody of his guardian only if it is of the opinion that it will be for the welfare of the ward to do so. Thus, the welfare of the ward is the deminent consideration in such matters.

(6.) ORDINARILY the guardian has the right to the custody of the minor. Since under the Mahomedan Law the mother is entitled to the custody of a male child only until he has attained the age of 7 years, it would appear that the respondent as father is entitled to claim the custody of son Shanjahan as he has now completed the age of 7 years. But the guardians claim to the custody of a child is not in the nature of the property. It is a right in the nature of trust for the benefit of the minor. Vide Budhulal v. An Infant Child, 1971 MPLJ 33. Thus, the paramount consideration is the welfare of the minor.

(7.) SHRI T. C. Naik, learned counsel for the respondent relied on certain observations in Tyabjis Muslim Law, Fourth Edition at page 235 in support of his contention that the law governing the minor is the paramount consideration and that the custody of the lawful guardian should always be considered to be for the welfare of the minor. The aforesaid view is apparently based upon the language of sub-section (1) of section 17 of the Act which provides that in appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of the section, be guided by what consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. In the first place the expression "subject to the provisions of this section occurring in sub-section (1) of section 17 clearly indicates that the personal law must be applied subject to the provisions of the said section and, therefore, dictates of personal law must be subordinated to the considerations of welfare of the minor vide Sultan Ahmed v. Smt. Sabira Bibi, 1969 A L J 799. . Secondly, as pointed out above, this is not a case falling under section 17 of the Act at all. The case actually falls within the purview of section 25 of the Act which makes no reference to personal law whatsoever. Under the said section the welfare of the minor is the sole and guiding consideration.

(8.) I now proceed to consider whether it would be for the welfare of the minor to be placed in custody of his father. Welfare must be understood in its widest sense so as to embrace the material and physical well-being, the education and upbringing as well as the happiness and moral welfare. It is necessary to consider every circumstance bearing upon these considerations. Vide Raj-kumar v. Indra Kumari, 1972 MPLJ 775. [LQ/MPHC/1970/212]

(9.) WE have to bear in mind that the minor has been living with his mother throughout since his birth. It appears that after the appellant was divorced in 1969 the minor has been living with her exclusively and as such his father must have become more or less stranger to him by now. Shri Agrawal in fact offered to produce the child in Court to show that the child wants to live with his mother and not with his father who is now more or less a stranger to him. Shri Naik, however urged that it was not necessary to produce the child because he has not yet attained the age of discretion and cannot, therefore, be expected to make an intelligent preference at such a tender age.

(10.) THE evidence further shows that father (respondent) has remarried and children from his second wife. Thus if the child is transferred to the custody of his father he will have to live at the mercy of his step-mother.

(11.) ANOTHER consideration On which considerable stress was laid by shri K. M. Agrawal, learned counsel for the appellant was that real motive for the respondent to obtain the custody of the minor is to avoid payment of the amount of maintenance. The respondent admitted in paragraph 5 of his deposition that after the divorce he did not send any money or clothing for his minor son as would appear from the following statement made by him: This goes to show that the respondent has not much love for his minor child because he did not voluntarily provide any maintenance for him after divorce. The respondent is a Primary School teacher, he has a new wife and a couple of children to maintain. Moreover, as admitted by him he is required to pay rs. 40 per month to the appellant under a decree for dower obtained by her against him. In these circumstances it is extremely doubtful if the respondent will be in a position to bring up the minor son of his first wife properly in home which must now be under the management of his second wife particularly looking to his meagre resources.

(12.) AS for the appellant, she has not remarried and is apparently lavishing all her love and affection on her minor son. He is being educated in a school and there is nothing to suggest that he is not being brought up properly.

(13.) THUS, taking all the facts and circumstances of the case in account, i am of the opinion that it will not be for the welfare of the minor to be put in the custody of his father. Respondents application for obtaining the custody of the minor must, therefore, be dismissed.

(14.) THE appeal is, therefore, allowed and the order of the trial Court directing the appellant to hand over the custody of the minor to the respondent is hereby set aside. I would, however, like to observe that the respondent being the father and lawful guardian of minor will have a right to keep an eye on the son and if at any time he finds that it is not for the welfare of the minor to continue in the custody of his mother, he can move the Court for obtaining his custody. I make no order as to costs in the circumstances of this case. Appeal allowed.