Avadh Behart, J.
(1) These are custody proceedings. This case is concerned with a conflict between, on the one hand, the natural and lawful parent and, on the other hand, more remote relatives of an infant.
(2) First the facts. The respondent Smt. Angoori, was married to one Hari Chand in or about 1961. This marriage is admitted on all hands. Hari Chand was the son of his father Puran and Mohrali his mother. Hari Chand died on May 14. 1965. Thereafter a male child was born to Angoori on September 28, 1965. His name is Kartare (I will call him 'K'). He is today ten years of age.
(3) K was born to Angoori at the place of one Shankar with whom she had started living. Shankar is a married man fairly advanced in years. On his own showing he is about 60 years of age. His previous wife is living. She is a woman of about 55. They have two chi'dren- a son and a daughter. The son is about 23 years of age. He :s married. He has three children. His eldest child is 7 years of age. Shankar's daughter is already married.
(4) It appears that Shankar has discarded his previous wife it is said that she is insane. She is living with her son. Shankar has now taken this woman Angoori. She is living with him. Both of them claim that they were married according to karewa form of marriage and are living as husband and wife. The minor K was also living with them from his very birth in 1965 till April, 1971.
(5) On April 28, 1970, Puran and Mohrali, the parents of deceased Hari Chand, made an application under sections 7, 10, 24 and 25 of the Guardian and Wards Act 1890 (the Act) to the Court of the District Judge, Delhi. Puran and Mohrali (I will call them grand parents) claimed the custody of the child K from Angoori (I will call her the mother). They alleged that Angoori was unfit to act as a guardian of the minorchild as she was living as a concubine of Shankar and by her conduct and character she had unfitted herself to retain the custody of the child.
(6) The petition remained undefended. On October 3, 1970, the District Judge granted the application ex parte. On January 13, 1971, the Judge issued warrants for custody and delivery of the child to the grand parents. On April 24, 1971, in execution of the warrants issued under section 100, Code of Criminal Procedure the police was able to deliver the child to the grand parents. This is an important date. Since then the child has continued to be in the custody of the grand parents all through the vicissitudes of this litigation.
(7) On May 1, 1971, the mother made an application under Order 9 Rule 13. Code of Civil Procedure for setting aside the ex parte order dated October 3, 1970, granting custody to the grand parents. On November 10, 1971, the District Judge allowed her application and permitted her to defend the proceedings.
(8) Now the mother opposed the application of the grand parents. Her principal defense was that K was born to her from the loins of Shankar. It was denied that K was the son of Hari Chand and the grand son of Puran. Angoori claimed that she was indisputably the mother and being the natural and lawful guardian of the minor she could not be deprived of the custody of K. She also defended her present position in life by saying that she went through karewa form of marriage with Shankar and that they were lawfully wedded according to the custom prevailing in their families. The trial judge raised three issues:
1.Is Kartare minor son of Hari Chand?
2.Is it in the interest and welfare of the minor Kartare to appoint petitioners as guardian of the minor?
3.Relief.
(9) Both parties led evidence. On March 1, 1975, the guardian judge to whom the case had been transferred in the meanwhile decided the case. He dismissed the petition and ordered that the cusody of the minor K be delivered to the mother.
(10) On issue No. 1 the Judge's finding was that it had not been proved that the minor K was born to Angoori from the loins of Hari Chand. On the second issue he held that since the minor K was not the grand son of Puran they were not entitled to be appointed as guardians. Their claim for custody was rejected. The trial judge took the view that it was in the interest and welfare of the minor that his custody should remain with the mother. The grand parents now appeal to this court against the decision of the guardian judge.
(11) The guardian judge had directed that the custody of K be handed over to the mother. At the time of the admission of the appeal in March 1975 the operation of the trial judge's order was stayed. The child was allowed to remain with the grand parents till the decision of the appeal. That appeared to me to be the best order to make in the circumstances of the case. But in April 1975 I directed that the appeal be heard in August 1975- This is how the appeal has now come up for hearing before me.
(12) There are two rival claimants to the custody of the child K. Two alternative proposals have been advanced before me. I have to examine the merits and demerits of the claim of each of the two claimants.
(13) It appears that some facts are undisputed. That Angoori was married to Hari Chand, that Hari Chand died on May, 14, 1965, that K was born from the womb of Angoori on September 28, 1965 at the house of Shankar and was residing with his mother till April 24, 1971, that Angoori is living now for some years with Shankar, that Shankar is married man and has grand children of his own- these facts stand clearly proved on the record and have not been controverter. The main matter in controversy between the parties is about the relationship of Angoori and Shankar and the point of time from which their alliance started. In other words the basic question is : Who is the father of K? Was he born of the loins of Hari Chand? Or is he the offspring of the union between Angoori and Shankar
(14) Maternity is a certainty. Paternity can be a matter of doubt ' and dispute. It can be a matter of presumption and inference. It may remain shrouded in mystery. It is admitted on both sides that K was born from the womb of Angoori. Was he begotten of Hari Chand or Shankar? Both in the trial court as well as before me counsel for the parties were quite deep in debate on this question. I will briefly refer to this aspect.
(15) The evidence of the grand parents is that Hari Chand was married to Angoori in 1961. He died on May 14, 1965. Death certificate shows this. He died at the young age of 24 or 25. Angoori at the time of her marriage was 16 years of age. Today she is a woman of 30. Hari Chand remained ill for two or three months before his death. The case of the grand parents is that Angoori conceived K from Hari Chand a few months before his death and that he is the posthumous child of Hari Chand as he was born within four months after his death. K's date of birth, that is, September 28, 1965, has been proved from the birth register by a chowkidar. The grand parents' witnesses said that Angoori has a pregancy of four or five months old when she left her husband's home on his death and went to Shankar to live a life of lust with him. Puran said in his evidence that Angoori went to live with Shankar on November 3, 1965. This no doubt is palpably false as Puran himself admits that K was born at the house of Shankar on September 28, 1965. The midwife has also deposed to delivery of the child at the place of Shankar. But Puran's other witnesses have said that Angoori was living in the house of Hari Chand when he died and she became pregnant from him.
(16) As opposed to this the case of the mother is that she started living with Shankar since December 2, 1964, while Hari Chand was alive. Angoori in her statement said that though she was married to Hari Chand she did not live with him except for a few days. Since Hari Chand, she said, was impotent and was suffering from consumption he could not beget the child- She, thereforee, performed kareva form of marriage with Shankar according to the custom and K is an offspring of that union.
(17) Witnesses on behalf of the mother have deposed that Angoori married Shankar. Some of them said that there was a phera ceremony at the time of the marriage. Others have said that there was a marriage party.
(18) Two witnesses on behalf of the mother are of some note. One is Shankar. He appeared as a witness on behalf of Angoori. He said that he was married ten or eleven years back. This he stated in 1974 We can put the marriage roughly in 1963. .It was a kareva marriage He said that about two years after marriage K was born. 'K was born to the respondent from my loins', he said. He admitted in evidence that his wife is alive and he has children from her. He has a son 22 years of age. He has three grand children. But he said that his wife and son were living in Jind and not at village Bans in District Mohindergarh in the State of Haryana where admittedly both parties to this litigation reside. The first wife is insane, he added. He admitted that he entered into a kareva marriage with Angoori without obtaining divorce from the first wife- When asked about the first marriage of Angoori with Hari Chand he said this:
Idid not know Hari Chand, the previous husband of the respondent. I did not know in which year he died.'
(19) The other witness was Angoori herself. Her statement is quite interesting. She has said different things at different times. It appears to me that she has little regard for truth.
(20) Angoori said that she remained with Hari Chand for it year. She stated that she was married to Shankar ten or eleven years back by 'exchanging garlands. But that time Hari Chand had died.' She added: 'About 1' or 1 years after my marriage with Shankar, son Kartare was born from the loins of Shankar. Hari Chand was impotent. No sexual relations had developed with Hari Chand on account of impotency.'
(21) This was her statement in examination-in-chief.
(22) In cross-examination she took a different and even a contrary stand. Her cross-examination is indeed revealing. She said:
Iwas married to Hari Chand ....I was 16 years of age at that time. I remained with him for 2 to 4 days only and never lived with him afterwards. I cannot say wthethe I was married with Hari Chand about 13-14 years ago. It is incorrect to suggest that I lived with Hari Chand for four years after marriage. It is incorrect to suggest that I lived with him till 1965 and then I left him. During the lifetime of Hari Chand, I entered in kareva with Shankar as he was not fit for me. I did not take any divorce decree against him. .I entered into kareva with Shankar after a month or so of my marriage with Hari Chand and since then I have been living with Shankar.. .I do not remember the month, date and year when I entered into kureva with Shankar. Only garlanding ceremony was held with Shankar. No phera ceremony took place. I do no;know when it took place. Kartare was born 9 years ago. Kartare was born about 1' years after the death of Hari Chand. I do not know how Hari Chand died.. . .I do not know my parents-in-law present in the court. I stayed at the house of parents-in-law for 2 or 4 days. I had no sexual intercourse with Hari Chand during my stay with him. I have not stated this fact to anyone. I have stated this fact for the first time in Court.'
(23) When we compare this statement of Angoori made in court with her written statement which she filed in 1971 we find a completely different stand. In her written statement she said:
THErespondent lived with Hari Chand for about two years; as said Shri Hari Chand was impotent and was suffering from T.B. and could not consummate the marriage and so the respondent served her relation with Shri Hari Chand and come to Shri Shankar son of Shri Shehzad and started living with him at village Ranila Bans Distt. Mohinder Garh from 2-12-64, as his wife, by performing 'kareva' marriage with him as is customary in the families of the parties.'
(24) ANGOORI'S statement has not impressed me. It does not inspire confidence.
(25) On evidence it appears to me that K was born of Hari Chand. He is the offspring of a lawful wedlock. There is a presumption of legitimacy. Under section 112 of the Evidence Act he was born during the continuance of a valid marriage between his mother and Hari Chand. It shall be the conclusive proof that K is the legitimate son of Hari Chand unless it can be shown that the parties to the marriage had no access to each other at any time when K could have been begotten. Except the word of mouth of Angoori that Hari Chand was impotent and was suffering from tuberculosis there is no clear and satisfactory evidence that access was impossible. In order to repudiate the presumption it must be proved that access was impossible on account of impotency, serious illness. It must be shown by very convincing evidence that though opportunity existed there was no sexual intercourse during the period when the child must have been begotten : See Venkateswarlu v. Venkatanarayana, : [1954]1SCR424.
(26) There is something much more important in the case than this. So long as Hari Chand was alive Angoori could not have entered into kareva form of marriage with Shankar. A 'kareva' marriage is with. the brother or some other male relative of the deceased husband (See Para 75 of Rattigan's Digest of Customary Law (14th ed.) page 475). Shankar himself a married man could not have contracted a second marriage except on pain of bigamy under s. 17 of the Hindu Marriage Act, 1956. Section 5 clause (1) of the Act of 1956 introduced monogamy. It enacts that neither party must have a spouse living at the time of the marriage. thereforee Shankar's marriage with Angoori is null and void- It is non-existent.
(27) That there is a custom of kareva marriage such as has been alleged by Angoori has not been proved. A custom must be proved by particular instances (See S. 13, Evidence Act). Therg is not the evidence of a single instance of kareva marriage among the Banjaras. The parties are admittedly Banjaras. I, thereforee, reach the conclusion that K was born of Hari Chand and that Puran and his wife arc his grand parents.
(28) So much for issue No. 1. But I will not rest my decision on this issue. The main matter in hand is about the custody of K. Who should have the custody' Assume I am wrong on Issue No. 1. Assume the trial judge is right in his finding that it has not been proved that K was born from the loins of Hari Chand. The question then is : Is the trial judge right in holding that the welfare of the child demands that he should be left in the custody of his mother
(29) I cannot endorse the conclusion reached by the guardian judge. In my opinion the child's well-being demands that the custody should remain with the grand parents. For arriving at this conclusion my reasons are mainly two.
(30) Firstly it is a case where the natural right of the mother to claim the custody of the child must in the circumstances be subordinated to the paramount consideration of the welfare of the minor child. The mother's right is not absolute. It is a qualified right subject to her fitness, her character, conduct and position in life. In my opinion Angoori has forfeited her right to the custody of the child. Her legal right must be superseded and suspended by the court in all the facts and circumstances of the case. She is living a life of easy virtue with a married man who has his own family, his wife, sons and grand children. I do not think it will be in the welfare of the child that he should live in such a vicious atmosphere at this impressionable age in life. Welfare means welfare in the widest sense. It includes material and moral well-being. Mother's wishes or her right cannot prevail over the welfare on an infant. The court will not put her claim over its own duty which is to do that what the welfare of the child demands. The court will not put the wishes of the mother above the welfare of the child.
(31) The second reason is a fortuitous event. Since April 1971 the child has been living in the care, control and custody of the grand parents. They are looking after his up-bringing, his health and well-being. They have won his love and confidence. They seem to be interested in him. The grand father is quite devoted to the Child. In his evidence he said that he was even prepared to lay down his life for him (the child). The child has formed associations and impressions. He has expectations. At this formative age custody is an important consideration. The anxiety caused to a child by a change of custody is not transient and a matter of small importance. A growing experience has shown that serious harm even to young children may, on occasion, be caused by such a change. A child's future, happiness and sense of security and emotional stability are all important factors and the effects of a change of custody are worthy of close and anxious attention in every case. Change of custody at this moment may altogether ruin the child's life, one does not know. I simply cannot bring myself to order his return to mother's custody. The prospect is altogether too dangerous and risky.
(32) At two stages of the hearing I talked to the child. On April 10, 1975, as well as on September 2, 1975, the child expressed his preference to remain with his grand parents. He appeared to me to be a normal rustic child of average intelligence.
(33) My conclusion that the welfare of the child is that he should remain in the custody of his grand parents is not based on my finding that he is the son of Hari Chand. I have reached this conclusion even on the assumption that Puran and his wife are strangers. The welfare test applies to disputes not only between parents, but also between parents and strangers and strangers and strangers; Scc J v. C, 1970 A.C. 668 (2).
(34) 7 v. C (supra) is the outstanding landmark in child law. The English Act of 1925 had declared that the first and paramount consideration in custody disputes was the welfare of the infant but it had been assumed that this principle only applied to disputes between natural parents. J v. C held the principle to be of general application If, thereforee, the child's interests warranted it foster parents could be given 'custody' in preference to natural parents.
(35) 'THE case concerned a Spanish boy of 10 fostered with a Surrey solicitor and his wife, who had not seen his natural parents since he was there. He was a Roman Catholic, the foster parents were Anglicans. He had spent 17 months with his parents in Madrid but he could not stand the heat and his parents asked his foster parents to take him back. The foster parents had a son of the same age as the child and the two of them were like 'twins'. The child had become English in his ways and his prospects were better in England than in Spain.
(36) UNGOED-THOMAS J.-foresaw problems of adjustment to life in Spain and felt his parents would be unable to cope. He thereforee thought it would be undesirable and wrong to return the child to his parents, even though for these purposes they were unimpeachable. He thus directed that the foster parents should have care and control. VngoedThomas J's decision was upheld by the Court of Appeal and the House of Lords.
(37) The ratio decidendi of the Lords' decision is open to two interpretations. Lord Upjohn and Donovan held that the child's interest was first and paramount, but not the sole consideration. But the majority of Lords Guest, MacDermott and Pearson appear to treat the child's welfare as the sole consideration, lord MacDermott said of section 1 of the 1925 Act that it must mean more:
THANthat the child's welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will he that which is most in the interests of the child's welfare.... That is the first consideration because it is of first importance and the paramount consideration because it rules on or determines the course to be followed.
(38) The interpretation of the majority is to be welcomed for the attention it gives to the child's welfare.
(39) The counsel for the mother argued that Shankar is in affluent circumstances. He owns land. He can well look after the child- I do not agree. Puran's witnesses have also said that he is financially well off and has two or three houses, in addition to land. The counsel said that Puran has not pledged his word to this. Assume he is right. But this is not the only consideration which weighs with a court. Shankar and Angoori cannot be said to be unimpeachable parents, assuming that K was born to Shankar. Angoori is not leading a blameless life. She is not a model of moral excellence. Her character has been impugned. Even as regard Shankar, Puran's witnesses have said that his reputation is not good in the village and that he sells women. It is true that there is no cogent evidence to support these allegations but the solid fact remains that Shankar is a married man and his son, wife and grand children are the inheritors of his property and claimants to his paternal affection. How much love and affection will Shankar have for K is a matter which one can be left to imagine. His interest in K may be as fleeting as is the youth of Angoori.
(40) Counsel argued that the grand parents are disentitled to custody as they made no application for five years after the birth of K. There are three answers to it. First uptil the age of five the child was in infancy and being of tender age the mother could look after her better. Secondly Puran said that Angoori came back to his house 11 years after the death of Hari Chand. At that time she made a statement in the court of the Additional District Magistrate that of her own free will she had come back from Shankar. The original record of criminal case has since been destroyed but Public Witness 6/1 shows that there were certain proceedings in 1966 as Angoori's name appears in the register. She has flatly denied having made any statement. Thirdly if the welfare demands custody can even now be changed. The orders regarding custody are variable and provisional by their very nature.
(41) Welfare is the ultimate criterion. In re Megarth (Infants) (1893) 1 Ch. 143 (3) Lindley L. J. Said:
THEdominant matter for the consideration of the court is the welfare of the child. But the welfare) of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the of affection be .disregarded.'
(42) In re Adoption Application 41/61 (1963) Ch. 315 (4) Danckwert L. J had this to say:.Iwould respectfully point out that there can only be first and paramount consideration, and other considerations must be subordinate. The mere desire of a parent to have his child must be subordinate to the consideration of the welfare of the child, and can be effective only if it coincides with the welfare of the child. Consequently, it cannot be correct to talk of the pre-eminent position of parents, or of their exclusive right to the custody of their children when the future welfare of those children is being considered by the court.'
(43) The dicta of these eminent judges shows that although the claim of natural parents to the custody and upbringing of their children is obviously a most weighty factor to be taken into consideration in deciding what is in the best interest of the child, yet the legislature recognises that this might not always be the determining factor. What the court has to deal' with is the lives of human beings and these cannot be regulated by formulae.
(44) The rights of the mother are not absolute but qualified in the sense that they become effectual if in accord with the best interests of the child's welfare. Court has jurisdiction, nay a duty to interfere with the natural rights of parents to have the care, custody and control of the child if the welfare of the child required.
(45) Such matters as the natural ties of blood and family relationships must also be considered as they properly bear on the child's welfare. The tie between the child and the natural mother (or any other relative) may properly be recognised in this connection not on the basis that the person concerned has a claim which he has a right to have satisfied, but if at all, and to the extent that, the conclusion can be drawn that the child will benefit from the recognition of this tie. (In re Adoption (1964) Ch. 48 (5) per Wilberforce J.). In this case my view is that the recognition of the natural tie in the case of K will not be beneficial. If anything it will be harmful.
(46) I, thereforee, come to the conclusion that separation of K from the grand parents would break up the associations of his life at this impressionable stage. If custody is changed at this stage a ranking sense of injustice and depression may result which will not only hinder the development of his personality and resettlement but could easily prejudice his whole future.
(47) SHANKAR'S own witness (RW 3) says that his wife resides in village has and not at Jind as is alleged by Shankar. In the competing claims the mother's right cannot be upheld as in the scale of moral , guilt her case is weak. To me she seems to be a woman who is selfish and who has put her desires first in the scale without paying any real regard to the interest of the child.
(48) In Indian law the same principle has been enunciated. Section 17 of the Guardian and Wards Act 1890 lays down the factors a court shall consider and have regard to in weighing all the circumstances that are of any relevance. Section 13 of the Hindu Minority and Guardianship Act 1956 enacts that the pre-eminent or the dominant consideration shall be the welfare of the minor. In Mulla's Hindu Law 14th Edition at page 964 it is said:
The proposition is now firmly established that even the preferential right of the father as a natural guardian should be subordinated to and even overriden by the sole consideration that the welfare of the minor is to be the determinative factor in all these matters of guardianship.
(49) A number of recent Indian decisions are cited in support of this proposition thereto which I think it is not necessary to refer.
(50) Since the age of five K is with Puran and his wife. Now he is ten years of age. I am not prepared to hand over the child to his mother after a lapse of four years from 1971 when the court committed him to the custody of Puran.
(51) For these reasons I would allow the appeal and appoint Puran as the guardian of the minor Kartare and hand over the custody to him. There shall be no order as to costs.