(1.) The appellant was married to one Yasmin in 1980 but the marriage did not bear fruit as no child was born to them until 1984. On 13th Jan. 1984 the appellant married a second time whereafter he and his wife Zeenat Parveen lived together for some time. On 10-11-1984 a son was born. According to Zeenat Parveen she was the mother and had given birth to the son while the appellant claimed that Yasmin, his first wife, was the mother of the child. On an application being moved under Sec. 25 of the Guardians and Wards Act the court below has answered this question of motherhood in favour of Zeenat Parveen to whom the custody of the minor has also been entrusted. Aggrieved by the order, the husband filed the present appeal.

(2.) Two main questions arise for consideration. The first question is whether the child was born out of the womb of first or the second wife of appellant. The second question is as to where the welfare of the minor lies in the facts and circumstances of the present case.

(3.) It is undisputed that from 1980 to 1984 the first wife had remained barren. According to the allegations made in the application under S.25, the desire to have a child was one of the major reasons for the second marriage with her. Be it as it may, the fact remains that a son was born on 10-11-1984.

(4.) The controversy only is whether he was born by Zeenat Parveen Zeenat Parveen was admittedly a teacher in a school in Rampur Manihar and according to her she had applied for maternity leave on 10-11-1984, from 10-10-1984 to 22-11-1984. In the supporting medical certificate the doctor gave the expected date of delivery at 30-10-1984. In continuation of this another leave application was given on 22-11-1984 for the period 23-11-1984 to 7-1-1985 and this too was accompanied by a medical certificate by the same doctor. Fitness certificate was given on 7th and on 8th January, 1985 she gave her joining report along with the fitness certificate. All these documents were summoned from the department through one shamsad Ali, a clerk in the office of Deputy Inspector of Schools. This leave was sanctioned.

(5.) Apart from above evidence a copy of the birth register of Local Board has been filed, according, to which a male child is reported to have been born on 10-11-1984 at about 1.30 P.M. This information was conveyed to the Board by Irfan Ahmed, who is none other than the appellants father. The name of the child has been mentioned as Mohd. Khavar. The entry is dated 12-11-1984.

(6.) It is on this evidence that the court held Zeenat Parveen to be the mother of the minor in question and it is very seriously assailed by the appellant. Learned counsel has tried to point out certain incongruities in the oral evidence besides referring to some prescriptions filed by the appellant to justify his case. It is urged that according to Zeenat Parveen the child did not cry after birth. This is not correct. She has denied this suggestion. Of course she said that he never remained under medical treatment. It was also pointed out that her statement was contrary to the evidence of Smt. R.D. Tyagi, the nurse who had performed the delivery. According to the nurse the child was in a critical, condition at birth and was immediately taken to a Doctor. Evidence of the nurse needs to be read with caution as her role is not free from suspicion. A sum of Rs. 15/- was deposited with K.P. Maternity Centre, Saharanpur on 9-11-1984 and a receipt for the same was issued by this witness on 9-11-1984. In the receipt the name of patient was entered as Zeenat Parveen wife of Mohd. Khalid, Mohalla Sharranaja. The name of the midwife was given as R.D. Tyagi. At the bottom of this receipt there is an endorsement :- "Out door delivery. Sd./- R.D. Tyagi". When the nurse entered in the witness box she proved the receipt and she also stated that she had performed the delivery of a son born to Zeenat Parveen. During cross-examination, however, she mentioned the date of delivery as 9-11-1984 which appears to be obviously wrong as the son was admittedly born in 10-11-1984. The witness on further cross-examination stated that the condition of the child was bad and had to be sent to the doctor. She also referred to a counter-foil of the receipt which she had brought with her where the patients name was mentioned as Yasmin alias Zeenat Parveen. a similar entry was made by her in the register which also she had brought. She refused to file any of these documents in the court. On the bass of this part of her statement the appellant has urged that the receipt refers to Yasmin and not to Zeenat Parveen. It is difficult to accept this submission, firstly the original receipt has come from the custody of the applicant wherein there is no mention of Yasmins name. Her name appears only in the counter foil which had remained with the department and it was not difficult to make some interpolation there with the connivance of the custodian of those papers. If really the name of the patient had been initially mentioned as Yasmin alias Zeenat Parveen there could be no reason why in Ext. 1 the name Zeenat Parveen only appears. The applicant has denied that she has any alias like Yasmin. Even Yasmin and the appellant, when in the witness box, did not suggest that Yasmin was also known as Zeenat Parveen. In these circumstances there could be no plausible reason why the name Yasmin alias Zeenat Parveen should have been mentioned. The appellant have not even suggested that he himself had gone to make the deposit. Who else had done it

(7.) This remains an unanswered question. That person alone would have been the most natural witness to say why there was a difference in the name in the original receipt and its counter-foil. It is also relevant to mention here that soon after the statement of R.D. Tyagi had concluded an application 51-C was moved by the applicant for permission to put questions to her but on being opposed by the appellant it was rejected by the court.

(8.) In this very connection another factor has also some importance. Yasmin admitted that she first conceived a child in the month of March, 1984. If this statement be true she could not possibly give birth to a normal child in November. On the contrary Zeenat Parveen had been married in January, 1984 and it would be quite natural that the husband and wife should have been together after the marriage. If the child was conceived soon after the marriage a normal delivery of the second wife could take place in the month of Nov., 1984. Probability, therefore, is that the child born was conceived by Zeenat Parveen and not by Yasmin. Yasmin had also admitted that she never gave breast feeding to the child although the two children born to her later had been brought up on her own milk. No reason for this had been assigned accept that the doctor had advised not to give mothers milk and that the first child should be fed only on cows milk. Doctors were in the witness box but none of them have mentioned having given such an advice.

(9.) The medical evidence produced by the appellant includes prescriptions by Dr. Pawan Kumar and Dr. Ghanshyam Gupta. The first prescription dated 10-11-1984 is by Dr. Pawan Kumar. In the prescription the name of the child is mentioned as Naveed and it also mentioned that he was about three hours old. The next prescription is of 20th Dec., 1984 and thereafter of March, 1985. The most relevant prescription, therefore, is one dated 10th Nov., 1984 which is of the same day on which the child was born. The prescription does not show that this child was brought by the appellant. The name of the child is also different. As mentioned earlier, the entry in the Municipal register made at the instance of the appellants own father shows the name of the child as Mohd. Khavan. It is therefore, not understandable why on the very day that the child was born and that too in a very critical condition, he should have been named at all. This is quite unusual. An infant is given a name only subsequently. In any case why the name on the prescription was Naveed when in the birth register this was given out as Khavar This aspect has not been explained but an effort has been made to show that the child was known as Naveed, Khawar or Shanu. Thus it is not denied that the child was named Khavar at some stage. From where has the name Naveed appeared There is again no explanation. This casts grave doubt about the fact that these prescriptions were in relation to the minor in question. As would be clear from another birth entry in respect of the second child born to appellant which is dated 21st Sept., 1985. Column No. 5 meant, for mentioning the name of the child is left blank. Of course in Column No. 13 there is an entry showing that this was the second pregnancy but as the entry was made during the period of pendency of these proceedings too much reliance on it cannot be placed. None of the doctors was able to say whether they had treated the minor in question or some other child. No mark of identification has been mentioned nor is there any other indication in the prescriptions from which it may be possible to infer that these prescriptions related to the minor herein. On one occasion the child was present in the court but even then no effort was made to get it identified as the one treated by the doctors. Thus there is absolutely nothing on the record to connect the minor in question with the child treated by Dr. Pavan Kumar or Dr. Ghanshyam Gupta. (10.) In the circumstances, I find really no reason to differ from the conclusion drawn by the court below which also had the added advantage of seeing the demeanor of the witnesses and was thus in a better position to appreciate the oral evidence. Therefore, I hold that the minor in question was born to Smt. Zeenat Parveen and not to appellants first wife, Yasmin.

(11.) This brings us to the second question regarding the welfare of the child and whether its custody should be entrusted to the father or to the mother in the facts and circumstances of the present case. It is well established that in a proceeding under the for the custody of an infant, it is the welfare in the widest sense of the term that is to be considered. Though the father as natural guardian may have a prima facie right to minors custody, this may be negatived if infants welfare lies in keeping him in his mothers custody. The children cannot be treated as chattel or property. Their welfare has to be considered more on humanitarian ground and looking into the overall welfare of the child. The custody of a child is merely in the nature of a trust for his welfare and benefit. Therefore, merely because the father is a natural guardian under the Personal Law applicable to him the minor cannot he entrusted to his custody having in mind the overall consideration of his physical and material well being, education, upbringing, happiness i.e. his overall welfare. In particular, in matters of custody of an infant or a minor of tender years it is his interest rather than the rival claims of his parents which alone must remain as a dominant consideration before the court. Human nature is universally similar and if mother be the suitable person to get custody of a child keeping in view his age and sex etc. there can be no adequate substitute for her in this regard, fathers rights as a natural guardian notwithstanding. In the case of an infant particularly the mother has an undoubted right to provide company, care and control over her own child and this is in accordance with law of nature too.

(12.) The admitted position is that on the date of the application the minor was an infant of nine months and today also he is not more than three and half years old. The appellant has a second wife with, admittedly two children of her own to be cared for. Having held that the minor in question was not born to Yasmin the natural corollary is that she is step mother of the minor in question. Will it be proper in these circumstances to give the minor in the custody of the appellant To me the answer appears to be No. The applicant Zeenat Parveen who is the natural mother of the minor is a teacher and admittedly she is drawing about Rs. 1,000/- as salary. She has no one else to support while on the other hand the appellant at least has a family of himself, his wife and two children, if not his parents and brothers. It has come in evidence that his relations with the applicant became sour only because she purchased some gold ornaments without his consent and he was still indebted in that regard. This speaks volumes about the financial position of the appellant.

(13.) The learned counsel or the appellant has relied upon the decision of the Supreme Court in Rosy Jacob v. Jacob, AIR 1973 SC 2090 [LQ/SC/1973/122] and in particular to the reference made therein that in a proceedings under S.25 of the Guardians and Wards Act the fathers fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor child in the context of all the relevant circumstances. It was further observed there that :-

"If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right to their custody under S.25 merely because there is no defect in his personal character and he has attachment for his children which every normal parent has."

However, in the same decision the Supreme Court also observed that :- "The fathers fitness from the point of view just mentioned cannot override consideration of the welfare of the minor children. No doubt, the father has been presumed by the statute generally to be better fitted to look after the children, being normally the earning member and head of the family but the Court has in each case to see primarily to the welfare of the children in determining the question of their custody, in the background of all the relevant facts having a bearing on their health, maintenance and education (14.) Here we must bear in mind the difference that existed between the custody and guardianship and there is a appreciable difference between the two. Guardianship is more comprehensive and more plausible right than mere right to custody. If the father is deprived of the guardianship of the children, he ceases to have any right to move the Court regarding them, whereas if he continues to be the guardian, and only the custody is given to the mother he can always move the court for returning the custody to him whenever he proves circumstances justifying the same. In some of the recent cases reported in Dr. (Mrs.) Veena Kapoor v. Sri Varinder Kumar, (1981) 3 SCC 92 [LQ/SC/1981/207] it was observed as under :

"It is well settled that in matters concerning the custody of minor children the paramount consideration is the welfare of the minor and not the legal right of this or that particular party."

(15.) Thus looking to the legal position, as discussed above, what the court has to consider is primarily the welfare of the minor in any given circumstance. As mentioned earlier the mother of the minor is educated and is learning member. Although according to the law and old social concepts the husband used to be the king in the family for he was a bread earner and women as a matter of custom did not move out and did not do much towards earning. The social situation has changed appreciably and we find that many women are now earning members and are capable of maintaining themselves without any financial assistance from their husbands. The applicant in this case is one such woman who earns a fairly good amount as a teacher. She is in a position to maintain the child, educate him and to give him the type of training which is necessary for building up the future and valuable citizen of the country. If the minor remains with the appellant he will always suffer from an inferiority complex of being the step-son particularly after all this controversy that has been generated from his very infanthood which has ingulfed his parents in a severe litigation. Care and comfort of the mother is much more necessary for an infant and a minor of tender age and therefore it appears that his welfare would be better served if he is given in the custody of his mother, Zeenat Parveen.

(16.) Learned counsel for the appellant has referred to Art.354 of Mullas Mohammadan Law and urged that if the mother goes and resides during the subsistence of the marriage at a distance from the fathers place of residence she loses her right to the custody of her child. However, the mother has a right of hizenat i.e. the right of custody of her children which lasts up to the age of seven years in the case of a male child and until the age of puberty in the case of female child. It is urged that this right of hizenat, that is of custody, is lost if she lives separately. It is difficult to concede to this submission. The question of custody of the minor would generally arise in a case when she is either living separately or has been divorced. In any case when the paramount consideration is the welfare of the child the personal law governing the parties cannot come in the way so as to deviate from this basic requirement. On this question a Division Bench of this Court in Mt. Sakina Begum v. Malka Ara Begum, AIR 1948 All 198 [LQ/AllHC/1947/88] had thus to say :

"According to the Hanafi law, as between a mother and a father, the mother has a preferential claim to the custody of their children. It cannot be laid down as an absolute proposition that she loses the right of custody if she goes and resides at a distance from the fathers place. It all depends upon circumstances. If the stay is only temporary or forced or is due to circumstances beyond her control, it is difficult to hold that she should even then be deprived of the custody of her own children. She loses the right of custody of her children only if she has any defect of character such as would render her unfit to have the custody of her own child".

(17.) Thus on a consideration of all the facts and circumstances of the case and the legal position, as discussed above, I am of the opinion, that the trial court was right in entrusting the minor to the custody of his mother, the respondent.

(18.) In the result the appeal is dismissed with costs. Appeal dismissed.