(1.) THIS first appeal from order under Section 47 of the Guardians and Wards Act (hereinafter referred to as the Act) has been preferred against the judgment and order dated 14th May, 1986 passed by IV Additional District Judge, Lucknow in Misc. Case No. 84 of 1983. Facts giving rise to this appeal are that Srimati Veena Manglik, plaintiff respondent, moved an application under Section 25 of the Act against her husband, Ashok Kumar alias B.M. Manglik and her father -in -Law, J.P. Gupta, for the custody of her two children, Ashwani Mangalik alias Rinku, now aged about 13 years and Abhishek Manglik, now aged about 10 years. Some allegations were made by the plaintiff respondent against the appellants herein with which we are not concerned for decision of the present appeal. The fact, however remains that it was till 8th June, 1982 that the plaintiff respondent stayed with the appellant No. 1 along with two children at Lucknow and thereafter the respondent shifted to Delhi to stay with her parents. The appellant No. 1 had moved both the children to Muzaffar Nagar to reside with his father and they were not even allowed to meet the respondent. The applicant alleged on the basis of averments made in the application that since the father was not well disposed to children and led an immoral life it was not proper to keep the children with him and that the applicant respondent being an educated lady with post graduate qualifications could very well look after her minor children and bestow motherly affection on them. Objections were filed by the appellants and it has been asserted by them that the opposite party No. 1 (appellant No. 1 herein) was the natural guardian of the minors and had true love and affection with them and that he had sufficient means being self employed engineer to maintain them. A plea has further been taken that the application was not maintainable under Section 25 of the Act inasmuch as the intention in seeking the custody of the children was not the welfare of the children which was the paramount consideration but with intention of taking money from the husband at the behest of her father who was in the habit of utilising the applicant and his other two daughters for getting pecuniary gains. It is alleged that Ashwani was kidnapped from Roorkee on 13th December, 1984 and taken to Delhi. It is, however, not in dispute that ever since Ashwani is studying at Delhi. The trial court examined Ashwani who put in appearance and his desire was ascertained as to whether he wanted to stay with his mother at Delhi or to come back and stay with his father at Lucknow. The child expressed his willingness in staying with his mother and stated that he was being looked after properly. The court below recorded a finding that the child was being given better and proper education at Delhi and therefore there was no necessity of changing the custody of Ashwani. The other younger child, Abhishek, stated that he was happy in living with his father and therefore the court directed that the custody of Abhishek need not be transferred to his mother. The appeal has been contested. I have heard learned counsel for the parties and perused the record. It has been contended by the learned counsel for the appellant that in view of the fact that the boy had been kidnapped by the respondent during the pendency of the application under Section 25 of the Act and also in view of the fact that the respondent was not possessed of means to maintain the child since she was herself staying with her parents and was living at their cost it was not in the interest of the child that he should be kept with her. It has been strenuously contended that the welfare of the child was in his custody being transferred to the father. The contentions of the learned counsel for the appellants have been rebutted by the learned counsel for the respondent that the story about kidnapping of the child is incorrect since if it was a kidnapping an F.I.R. must have been lodged and since no F.I.R. has been lodged it was nothing but a made up story. On the question of the welfare of the child and his desire and willingness to stay with the father the learned counsel for the respondent submitted that the child was first of all summoned before the lower judge who, as indicated herein above, had indicated his happiness in being with his mother. The child was thereafter again called in another Misc. Case No. 25 of 1985 filed by the appellant No. 2 herein against the same respondent in the court of the District Judge Dehra Dun, who examined the Child Ashwani on oath on 19th July, 1985 and the Child therein stated that he was happily living with his mother whereupon the court refused to grant interim custody of the child to the appellants. Here in this Court Ashwani was also examined before me on 7th November, 1985. He stated, "I am living with my own free will and without any coercion and duress." He further stated that he proceeded on his own free will to Hardwar and then to Delhi of his own and was studying in Delhi in Government Boys Higher Secondary School, Janakpuri in Class IX -A and that he was being provided proper facilities and amenities at Delhi. I am of the view that in view of the provisions of Section 5 of the Act the welfare of the child will have to be examined and considered under Section 25 of the Act in consonance with the spirit of Section 5 of the Hindu Minority and Guardianship Act, 1956. Sub -section (1) of Section 25 of the Act provides:
(2.) ASSUMING that the child has been kidnapped or has been removed from the custody of the appellant No. 1, I am in complete agreement with the view expressed by the trial court that the welfare of the child requires that he should be allowed to remain in the custody of his mother. No order for his return to the custody of the appellant need be passed. In this connection my attention has been drawn by the learned counsel for the appellant to the case of Mt. Taj Begum and another v. Ghulam Rasul and another : A.I.R. 1925 Lah. 250, in which the court held that the first right to the guardianship of a minor boy is in the father. But the welfare of the child ought to be considered on which their Lordships expressed no opinion. The learned counsel further made a reference to a case of Samuel Stephen Richard v. Stella Richard A.I.R. 1955 Mad. 451, in which the court was considering the application for custody of a minor female and held that in case the minor was old enough to make intelligent preference the wishes of the minor should be considered by the court. In the third case of K. v. Smt. K. : A.I.R. 1952 Nag. 395, a Full Bench of Nagpur High Court was of the view that when the mother has been divorced on the ground of adultery the father even though in preventive detention should be given custody of the minor child, no consideration of the welfare of the minor. The ratio of the cases cited hereinabove lays down one dictum i.e. to confer the right to hold the minor child in custody considering the wishes and welfare of the minor himself provided the minor was intelligent enough to indicate it. In the case in hand the minor is about 15 -1/2 years of age and he has expressed his desire to remain in the custody of his mother on three occasions and I have no reason to feel otherwise that the welfare of the minor is, in any way imperiled .