Judgment:
M.S.A. Siddiqui, J.
(1) This appeal is directed against the judgment dated 20.5.96, passed by the Guardian Judge, Delhi whereby the respondent's petition under Section 25 of the Guardian & Wards Act for custody of his minor son namely, Amit Kumar was allowed by the learned Judge.
(2) The appellant is the husband of the respondent. The two it appears are not living together. After their estrangement, their 10 years old son Amit Kumar was in the custody of the appellant. The respondent filed petition under Section 25 of the Guardian & Wards Act in the Guardian Court asking for the custody of the son alleging that welfare of the child is in living with her and the appellant had neglected the child and did not take proper care of his educational needs. The petition having been allowed by the Guardian Judge the appellant has filed this appeal.
(3) The learned Guardian Judge, after trial came to the conclusion that, (i) since 2nd February, 1993, when the respondent left her matrimonial home leaving the child in the custody of the appellant, the appellant had neglected the child and did not take proper care of his educational needs; (ii) that the appellant has no independent source of income to maintain himself and the child; (iii) that the appellant is a drunkard; (iv) that the appellant has no interest in the education of the child; (v) that the respondent being employed in the All India Institute of Medical Sciences, New Delhi, can maintain the child; and (vi) that the atmosphere in the house of the respondent is conducive to the growth and well being of the child.
(4) It is contended by the learned Counsel for the appellant that the paramount consideration of the welfare of the child has not been considered by the learned Guardian Judge. Inasmuch as the appellant, being the natural guardian of master Amit Kumar, is entitled for the custody of his son and the welfare of the son is in living with the father who is better suited to take care for the proper development of his son and for his educational and other requirements of life.
(5) 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 parents. The custody of the child has to be decided on the sole and predominant criterion of what would best serve the interest and welfare of the minor. No doubt, the father has been presumed by the Statute to be better fitted to look after the children but 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.
(6) It is beyond the pale of controversy that the respondent is employed in All India Institute of Medical Sciences, New Delhi at a monthly salary of Rs. 3,170.00 . Respondent (Public Witness 2) deposed that the appellant is a habitual drunkard and he has no permanent source of income to maintain the child. She further deposed that the appellant has no interest in the education of the child and he is not taking proper care of the educational needs of the child. Her testimony on the said points has been left unchallenged by the appellant. Strangely enough, the appellant has not even examined himself in support of his case. Thus, the unchallenged and unrebutted testimony of the respondent (Public Witness 2) clearly proves that the appellant is a habitual drunkard and has no financial resources to guarantee better health, education and maintenance of his son. Amit Kumar is of tender age and in the formative stage of his life and needs a sense of emotional security and company of a grown up person genuinely interested in his welfare. On the facts and in the circumstances of the case, the learned Guardian Judge has rightly held that the atmosphere in the respondent's house shall be conducive for a balanced and healthy growth of the child and his custody with his mother would be far more beneficial than his custody with the father.
(7) In the result, the appeal is dismissed. No order as to costs.