D.N. Baruah, J.
1. The petitioner has filed this revision under Section 115 of the Code of Civil Procedure challenging the order dated 9-4-92 passed in Misc. Case (G) No. 47 of 1991 by the Additional District Judge, Dibrugarh.
2. The case of the petitioner is that he was married to the respondent in the year 1975 and they were staying together till 1981 in Delhi. Out of the wedlock three children were born, one daughter (Nidhi) and two sons (Avinash and Anupam). According to the petitioner at the time of presentation of this petition, the daughter was aged 14 years 4 months and sons were aged about 12 years and 9 years 2 months respectively. The petitioner has alleged that the respondent left the matrimonial home all of a sudden on 6-9-87 without any reason against his consent and without considering the welfare of the children and stayed with one Satya Narayan Gupta, an Advocate at South Delhi. After staying about six days with him the respondent left for Dibrugarh to stay with her parents.
3. Thereafter, the respondent filed a petition before the Additional Pistrict Judge, Dibrugarh, for divorce and obtained an ex parte decree for divorce and also for the custody of children on 4-1-89. In pursuance of the order passed by the Additional District Judge a warrant was issued for taking custody of the children and seizure of movable property (ornaments) from the petitioner. According to him, the Additional District Judge, Dibrugarh, had no jurisdiction to issue the said warrant. However, the petitioner's children were taken away in pursuance of the said order passed by the Additional District Judge, Dibrugarh. Petitioner preferred an appeal before this Court against the ex parte order. During the pendency of the appeal, this court directed the Registrar (Judicial) to submit a report as to how the children had been looked after by their mother -- the respondent. The Registrar gave two reports dated 26-8-89 and 1-9-89. In the report dated 26-8-89, the Registrar (Judicial) stated that he gathered the impression that the children loved their maternal Aunts and they had not been ill-treated by them at any time; and the allegation of torture etc, were not true. The Registrar further stated that the petitioner was allowed to meet the children in his Chamber. The petitioner was in his Chamber from 11.55 a.m. to 1.30 p.m. along with the children. In the second report dated 1-9-89 the Registrar informed this court that he did not notice anything unusual or extraordinary when the petitioner met the children in his chamber, The Registrar further stated in his report as follows :
'At the end of the meeting the appellant requested me to hear something from Anupam. When I obliged, the appellant asked Anupam as to what 'those people' told to which Anupam replied that 'those people' promised to give him an 'RB set' if he spoke the right thing before the Court.'
4. This Court after hearing the parties by judgment dated 18-9-89 dismissed the appeal and affirmed the decree for divorce. The decree relating to custody of minors and their properties were set aside and remanded the case to the District Judge, Dibrugarh, for disposal afresh. Against this judgment the petitioner preferred an appeal before the Supreme Court by Special Leave Petition and this petition was dismissed for default on 2-3-90. According to the petitioner the reason for dismissal was that the Advocate on record was not present when the case was taken up. He, therefore, filed a petition for review of the order dated 2-3-90 before the Supreme Court, which is still pending for disposal.
5. In the meantime, the petitioner filed an application under Section 25 of the Guardians and Wards Act before the Guardian Judge, Delhi, seeking restoration of the custody of the children. The respondent filed a transfer petition before the Supreme Court and the Supreme Court transferred the case to Dibrugarh by order dated 9-4-91.
6. After transfer of the case to the Dibrugarh Court (Addl. District Judge), the hearing of the petition was adjourned from time to time on various reasons and on 3-9-91 it was dismissed for default.
7. Against this order the petitioner preferred an appeal before this Court. During pendency of the appeal, the petitioner filed yet another application seeking custody of the children or in the alternative he might be allowed to meet the children at appropriate place. This Court by order dated 13-1-92 directed the District Judge, Dibrugarh, for arranging a meeting of the petitioner with his children at an appropriate place and also allow his daughter to stay with him, if she would be so willing. The Additional District Judge adjourned the matter for 13-3-92 for production of the children.
8. Meanwhile, this Court allowed his appeal and restored the petition for custody of the children. Thereafter, the petitioner filed two petitions on 10-3-92 before the Additional District Judge, Dibrugarh, one for taking up the case day-to-day basis for expeditious disposal and another for seeking company of the children during his stay at Dibrugarh. According to the petitioner, the trial Court, however, did not pass any order on the application and adjourned the case on the plea of non-receipt of records from this Court, On 27-3-92 the trial Court passed an order directing the respondent to produce the children on 31-3-92. On 31-3-92 the respondent sought for some time to produce the children and she was allowed to do so on 9-4-92.
9. On 9-4-92 the children were produced and interviewed by the trial Judge and the prayer of the petitioner to remain present during the interview at the Chamber was turned down. According to the petitioner the children were tutored and therefore they were reluctant to meet the petitioner.
10. The trial Court rejected the prayer for company of the children. The petitioner further states that the members of the family of the respondent are leading businessmen and tea planters having great influence in Dibrugarh. They are trying to harass and humiliate the petitioner. The petitioner was aggrieved by the order passed by the Additional District Judge refusing to entertain his prayer. Hence the present petition.
11. I have heard both sides. The petitioner appears in person. His main submission is that the Court below failed to appreciate the facts of the case in proper perspective and thereby the petitioner is unreasonably deprived of the custody of the children. The petitioner further submits that the Court 'ought to have examined and interrogated the children to ascertain the truth as well as the fairness of their wishes before rejecting the prayer.....' His further submission is that the Court had no jurisdiction to deny a father the custody of the children who is able to look after the welfare of the children. The welfare of the children will be better looked after if the custody is given to the father. The petitioner submits that the learned Court below mechanically passed the order without considering the facts and circumstances of the case. He also submits that the respondent, i.e. the mother, has been leading an immoral life and it would not be in the interest of the children to live with her. Besides, the respondent is totally disinterested in the welfare and education of the children, therefore, the petitioner apprehends that the career of the children might be totally spoiled if the children be allowed to stay with the respondent. The plea of leading immoral life by respondent was, however, not specifically taken in the petition.
12. The respondent has filed counter-affidavit denying the averments made by the petitioner. The respondent has slated that she has been earning reasonable amount to maintain herself and the children and she has been able to take proper care of health and education of the children. The respondent has also staled that she is making all efforts to look-after the children and also has made financial provisions for the children by making fixed deposits in their names. She has also made provisions for the marriage of her daughter. According to the respondent, the custody of the children was given to her on 29-3-89 and since then the children have been staying with her and she is taking all steps for the proper growth, health and education of the children. She has further submitted that several petitions were filed before this Court as well as before the Supreme Court and on all occasions, the prayers for interim custody were rejected in view of the behaviour and conduct of the petitioner. The petitioner has filed a petition before the trial Court praying for an order allowing him the company of the children and the trial Court directed the respondent to produce the children. Accordingly the respondent produced the children before the trial Court and the trial Court interviewed the children and recorded the statement of her daughter-Nidhi. Nidhi in her statement stated that she did not want to go to her father even for an hour not to speak for a week.
13. Mr. A. K. Bhatlacharyya, learned counsel appearing on behalf of the respondent submits that from the evidence on record it is abundantly clear that the children are living comfortably with the respondent and she being the mother definitely would take care of her children. Besides, the evidence on record would also show that the respondent has financial capability to maintain the children properly. From the records it will appear that she is taking keen interest in the welfare of the children.
14. The petition for interim custody has been filed under Section 25 of the Guardians and Wards Act and pending disposal of the said petition, the petitioner has filed the petition for interim order seeking company of the children during his stay at Dibrugarh. This interim prayer is rejected by the impugned order. The language of Section 25 indicates that if a ward leaves or is removed from the custody of a guardian, the Court is empowered to make order to return the ward to the custody of the guardian, if it is of opinion that it will be for the welfare of the ward. The object and purpose of this provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardian to properly look after the ward's health, maintenance and education, this section demands reasonably liberal interpretation so as to effectuate that object. Hyper-technicalities should not be allowed to deprive the guardian, the necessary assistance from the Court in effectively discharging his duties and obligations towards his ward so as to promote the latter's welfare.
15. In considering the question of the welfare of the minors due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor's welfare. The presumption is that a minor's parents would do their very best to promote their children's welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children.
16. Where there is no dichotomy between the fitness of the father to be entrusted, with the custody of his minor children and considerations of their welfare, the father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances. 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 Section 25 merely because there is no defect in his personal character and he has attachment for his children, which every normal parent has.
17. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who, in addition because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them. Thus therefore, the Court in case of a dispute between the father and mother is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. In short, while giving custody of the children, the welfare of the children should be regarded as a paramount consideration.
18. The impugned order relates to the prayer for company of the petitioner's children during his stay at Dibrugarh pending disposal of the petition under Section 25 of the Guardians and Wards Act. The Registrar of this Court on two occasions submitted his report to this Court in the earlier proceedings indicating that the children were not inclined to live with their father, the petitioner. The Additional District Judge also gave similar view after interviewing the children. During the course of argument before this Court also, the petitioner-requested that the children be brought before this Court for further interview. Accordingly, this Court directed the respondent to produce the children and the respondent on 9-11-92 produced the children before this Court. On that day, the children were kept alone away from the father and mother and their relatives. This Court also interviewed the children, viz. Nidhi, Avinash and Anupam. They without any hesitation flatly refused to go and stay with the petitioner. The children stated that they are happy with their mother -- the respondent. Besides the daughter Nidhi made some allegations against her father -- the petitioner.
Be that as it may, it is now clear that the children are not at all willing to go and stay with the petitioner. They feel comfortable and happy with the respondent. They also stated that they have been properly looked after by their mother and other relatives.
19. In view of the above, in my opinion, it may not be expedient to grant the interim prayer of the petitioner. I do not find any jurisdictional error in the impugned order passed by the Additional District Judge and accordingly I dismiss the petition. No costs.
The trial Court is directed to dispose of the petitioner's application for custody of the children as expeditiously as possible and at any rate, within a period of two months. The trial Court while disposing the application under Section 25 of the Guardians and Wards Act shall not be bound by any of the observations made above.