JUDGMENT T.S. Krishnamoorthy Iyer, J. 1. This appeal raises the question of competition between the appellant and her husband who is the respondent for the custody of their minor son Ramesh aged 8 years. 2. The respondent filed a petition under S.25 of the Guardians and Wards Act, 1890 for the custody of the boy. It was dismissed by the District Judge of Palghat by the order dated 24-3-1971 which is challenged in this appeal. 3. The respondent married the appellant on 30-10-1961 and since then the husband and wife were residing in the husband's house at Govindarayapuram Palghat, till 23-3-1970 when the wife began residing separately with her father, R.W. 2. Ramesh was born on 17-8-1962. 4. The appellant is the daughter of R.W. 2 by his first wife. The first wife of R.W. 2 died long before the date of the appellant's marriage with/the respondent. R.W. 2 has got two daughters including the appellant and a son R.W. 3 by his first marriage. After the death of the mother of the appellant R.W. 2 has married again and through that wife he has children. R.W. 2 is residing with his second wife and children in Vaidynathapuram, Palghat, with whom the appellant is residing. The distance between the house of the respondent and that of R. W. 2 is very short. At the time of respondent's marriage with the appellant, respondent's mother was alive and she was also residing with him. Respondent's mother died on 17-6-1968. 5. It is the case of the respondent that in October 1966 R.W. 2 without the consent of the respondent took the appellant to his house and after one week she was brought back to his house by R.W. 3. The reason given by the appellant for leaving the house of the respondent in 1966 was because she was ill treated by her husband. Subsequent to her return things were practically alright until 22-3-1970 when she was taken to her father's place by her brother R.W. 3. Since then the appellant has not returned to the respondent and she is staying with her father. 6. It is the case of the respondent that Ramesh refused to go with the appellant on 22-3-1970 because of his unwillingness to leave the respondent and R.W.3 came to the respondent's house on 26-3-1970 and took away the child from him under some false pretences. 6. It is the case of the respondent that Ramesh refused to go with the appellant on 22-3-1970 because of his unwillingness to leave the respondent and R.W.3 came to the respondent's house on 26-3-1970 and took away the child from him under some false pretences. The petition in the court below was filed on 16- 6-1970. 7. It is contended by the appellant that since 1966 the respondent had developed intimacy with two girls by name Tylambal alias Rajam and her sister Visalam. In view of the respondent's behaviour towards Rajam the appellant entertained a P feeling that the respondent is loving Rajam more than her. According to the appellant this was the cause for some quarrels between her and the respondent: which led to the respondent ill treating and beating her and this led to her leaving the respondent house in 1966 October and also for her leaving him on 22-3-1970. Since this figured to a pretty large extent in the course of the argument before us and also in the lower court, we shall deal with the same. 8. The respondent was at the time of his marriage a compounder in a psychiatric clinic in Palghat. In his cross examination as PW. 1 he stated that his substantive pay in 1971 was Rs.80/- per month. R.W. 2 is the Sales Organiser for Kerala of Unichem Laboratories, Bombay and on the date of his evidence in 1970 he was getting Rs. 2310/- towards pay and a touring allowance of Rs. 25/- per day and 25ps. per mile. R.W.3 who is the elder brother of the appellant is a Ground Engineer in the Indian Airlines at Bombay. According to his evidence he was getting a pay of Rs. 1500/- and an out station allowance at the rate of Rs.60/- per day. There is thus some difference in the social status of the respondent on the one hand and that of R.Ws. 2 and 3. It is admitted that the appellant was subjected to epilepsy and p she underwent treatment for the same. Ext. A-1 shows that this fact was disclosed to the respondent who in spite of the same expressed his willingness to marry the appellant. Even in Ext. A-1 R.W. 2 had expressed his anxiety to the respondent that he should look after the appellant well. He also offered therein all help in whatever manner the respondent required. Ext. A-1 shows that this fact was disclosed to the respondent who in spite of the same expressed his willingness to marry the appellant. Even in Ext. A-1 R.W. 2 had expressed his anxiety to the respondent that he should look after the appellant well. He also offered therein all help in whatever manner the respondent required. Ext. A-1 concludes thus: "I am writing all these facts because I am more anxious as the Girl has been brought up like a "PET PARROT". I do hope, you will bear the responsibility. It is my desire that both of you should live happily under one-roof and on my part, you can always count any help in whatever manner you require. Let the Almighty bless us all! Again and again appreciating for the venture and gesture you have shown to our family, and with kindest personal regards, I remain." 9. It is admitted that the appellant and the respondent were getting on tolerably well in the house of the respondent till 1966. On 29th of October, 1966 R.W. 2 sent Ext. A-2 to the respondent complaining against this ill treatment of the appellant and also threatening that he would complain to the police. Ext. A-3 is the copy of the letter addressed to the District Superintendent of Police, Palghat by R.W.2 enclosed with Ext. A-2. Ext. A-4 is the letter dated 31-10-1966 written by the respondent to R.W. 2 informing the latter that the appellant and Ramesh were taken to the residence of R.W.2 at 9.30 A.M. on 31-10-1966 without the consent of the respondent and his mother. Ext. A-5 dated 1-11-1966 is the reply by R. W. 2 to Ext. A-4. R.W. 3 had come to Palghat from Bombay in November 1966. He effected a settlement between the parties and took back the appellant to the house of the respondent. This was according to R.W. 3 on the assurance given by the respondent that he would improve in his behaviour towards the appellant and on the understanding that R.W. 2 and his wife should not very often visit the appellant in the house of the respondent and interfere in his affairs. This according to R.W. 3 was on the 31st of December 1966 or on the 1st of January, 1967. 10. This according to R.W. 3 was on the 31st of December 1966 or on the 1st of January, 1967. 10. According to P.W.I the settlement was on the basis that R.W.2 and his wife should not visit the appellant in the house of the respondent. Whatever that be, from 1967 onwards R.W. 2 was very much dissatisfied with the behaviour of the respondent towards the appellant. Ex. B-7 is the letter dated 22nd of July, 1968 by R.W. 2 to R.W. 3. It is seen therefrom that when the appellant was laid up with typhoid, R.W. 2 was not allowed to see her. After she became normal the desire expressed by R.W. 2 to the respondent to take the appellant to his residence for two weeks to give her complete rest was rejected. In Ex. B-7, R.W. 2 requested R.W. 3 to interfere and to persuade the respondent to sent the appellant to the residence of R.W. 2. Prior to Ex. B-7, R.W. 2 had written Ex. B-5 dated 7-11-1967 to R.W. 3 complaining against the ill treatment of the appellant by her mother inlaw in the respondent's house. Ex. B-6 is the letter dated 10-11-1967 written by the wife of R.W. 2 to R.W. 3. This letter also complains against the intimacy of the respondent with two or three girls named in that letter in the locality. The appellant as R.W. 1 also swears to these matters. According to R.W.I the reason for her leaving the respondent is that on 21-3-1970'there was a quarrel between R.W. 2's wife and the respondent in the latter's house and as a result the respondent asked R.W.2's wife to take the appellant. R.W. 3 was then in Palghat and he was sent on 22-3-1970 to take the appellant. She went to the residence of R.W. 2 on 22-3-1970. It is unnecessary for the purpose of this case to enter a finding as to who is responsible for the separation of husband and wife. The fact remains that they are living separately from 22-3-1970. It is enough to say that the appellant is living separately from the respondent for adequate reasons. A finding as to the definite reasons for separation may not have much bearing to decide the question of custody of Ramesh. 11. The petition by the respondent in the lower court was under S.25(1) of the Guardians and Wards Act. It is enough to say that the appellant is living separately from the respondent for adequate reasons. A finding as to the definite reasons for separation may not have much bearing to decide the question of custody of Ramesh. 11. The petition by the respondent in the lower court was under S.25(1) of the Guardians and Wards Act. The said provision reads: "If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of the guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian." The paramount consideration under the above provision is the welfare of the child. If the ward is capable of forming an intelligible opinion and is able to express his or her views independently the Court will have to take that into consideration before reaching a conclusion. 12. In interpreting the words 'welfare of a child' Lindley, LJ. pointed out in In re McGrath (Infants), 1893 (1) Ch. 143 at page 148: "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 ties of affection be disregarded." Lord Esher, M. R. observed in The Queen v. Gyngall, 1893 (2) QB 232 at p. 243: "The Court has to consider, therefore, the whole of the circumstances of the case, the position of the parent, the position of the child, the age of the child, the religion of the child so far as it can be said to have any religion, and the happiness of the child. Prima facie it would not be for the welfare of a child to be taken away from its natural parent and given over to other people who have not that natural relation to it. Every wise man would say that, generally speaking, the best place for a child is with its parent. Prima facie it would not be for the welfare of a child to be taken away from its natural parent and given over to other people who have not that natural relation to it. Every wise man would say that, generally speaking, the best place for a child is with its parent. If a child is brought up, as one may say, from its mother's lap in one form of religion, it would not, I should say, be for its happiness and welfare that a stranger should take it away in order to alter its religious views. Again, it cannot be merely because the parent is poor and the person who seeks to have the possession of the child as against the parent is rich, that, without regard to any other consideration to the natural rights and feelings of the parent, or the feelings and views that have been introduced into the heart and mind of the child, the child ought to be taken away from its parent merely because its pecuniary position will be thereby bettered. No wise man would entertain such suggestions as these." As was pointed out by Lord Atkin in Bhagbati Dei v. Muralidhar Sahu ( AIR 1943 PC 106 ), the principal matter to be considered in these cases is the welfare of the infant. 13. The questions therefore to be considered are what order will be best for securing the welfare of the minor, with whom he will be happy, who is most likely to contribute to his well being and will lookafter his health and comfort. The interest, well being , health, education and happiness of the minor ought to be the main and paramount consideration for the Court in choosing the custody of the person with whom the minor can be kept. The preference of the minor also is a circumstance to be taken into account. 14. Counsel for the respondent contended that since under S.6 of the Hindu Minority and Guardianship Act the father is the natural guardian of a Hindu minor and the mother coming only next the father is entitled to the custody of the minor irrespective of the question of his welfare. 14. Counsel for the respondent contended that since under S.6 of the Hindu Minority and Guardianship Act the father is the natural guardian of a Hindu minor and the mother coming only next the father is entitled to the custody of the minor irrespective of the question of his welfare. It was also contended that in view of S.5(b) of the Hindu Minority and Guardianship Act, S.25 of the Guardians and Wards Act cannot be taken into account as the said provision is inconsistent with the provisions of the Hindu Minority and Guardianship Act. 15. We do not think that in determining the question of custody of a Hindu minor, his welfare is out of place because of the provisions of the Hindu Minority and Guardianship Act. It is, no doubt, true that S.5 of the Hindu Minority and Guardianship Act gives an overriding application to the provisions of the Act and lays down that in respect of matters governed by the Act the existing law cannot have any legal force. It is therefore necessary to examine whether in deciding the question of the custody of a Hindu minor a Court is not entitled to take into account the minor's I welfare. S.6 (a) of the Hindu Minority and Guardianship Act only affirms the rule of Hindu law that the father is the natural guardian of the person as well as the property of a minor son and a minor unmarried daughter and next to him the mother is the natural guardian of the person and the property of the minor. It well be pertinent to point out that S.13 of the Hindu Minority and Guardianship Act says that the welfare of the minor should be the paramount consideration in the appointment and declaration of any person as guardian of a Hindu minor. The principle underlying S.13 of the Hindu Minority and Guardianship Act is the same as in S.7 of the Guardians and Wards Act which also puts the emphasis on the welfare of a minor in the appointment of a guardian for his person or property or for both. S.17 of the Guardians and Wards Act only enunciates the matters to be taken into consideration in considering the welfare of a minor. S.17 of the Guardians and Wards Act only enunciates the matters to be taken into consideration in considering the welfare of a minor. We do not find anything in S.6 of the Hindu Minority and Guardianship Act or in any other provision therein to prevent the Court from entrusting the custody of a child to any other person other than the natural guardian if it is necessary for the minor's welfare. S.6(a) of the Hindu Minority and Guardianship Act itself provides that even though the father is the natural guardian in preference to the mother the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. This must be for the reason that the welfare of the minor demands such a custody. It is not possible to argue because of this provision that the natural father is alone entitled to the custody of a minor who has completed the age of 5 years in preference to the mother. After all a guardian's claim to the custody of a child is not a right in the nature of property but is one for the benefit of the child. It is, no doubt, true when the legislature under S.6 of the Hindu Minority and Guardianship Act declared the father as the natural guardian of a Hindu minor in preference to the mother, normally the custody of a minor who has completed 5 years has to be with the father for the reason that the legislature must have thought that it must be for the welfare of the minor. But in a particular case when a court finds otherwise there is nothing preventing the Court to decide on a minor's custody based on its welfare. We cannot accept the submission that the custody of a minor being an incident of the guardianship of the person the Court can entrust the custody of the minor to a person other than the natural guardian only when it is found that the natural guardian is unfit to be a guardian. When there is no declaration that the father is unfit to be the guardian he can always move the Court to get the custody of the children from the mother to whom they are entrusted if such custody proves to be not for the welfare of the minors. When there is no declaration that the father is unfit to be the guardian he can always move the Court to get the custody of the children from the mother to whom they are entrusted if such custody proves to be not for the welfare of the minors. When S.6 itself contemplates that custody and guardianship can vest in different individuals we cannot understand why the welfare of the children who have completed 5 years of age cannot be taken into account in the matter of deciding the question of custody. 16. It is, no doubt, true that the respondent was looking after the son when the appellant and the respondent were residing together. But that is not enough to entrust the custody of the child with the respondent. It is also true that the mother and the father are equally affectionate towards the boy. The learned Judge was carried away by the fact that there is no evidence to prove that the respondent was neglecting Ramesh when he was with the respondent. It is true that the prior conduct of the respondent may lead to an assurance about his anxiety to bring up Ramesh properly. But we cannot overlook one important fact which has escaped the notice of the learned Judge. After the appellant left the respondent he is alone. He is employed in a nursing home and it is admitted that he has to go for his work by about 9 O'clock in the morning and he can return at 1 or 2 p.m. He will have to go for his work again at about 3 p.m. and can return only by about 7 p.m. This will be his daily routine. We cannot overlook the fact that the nature of the duties of the respondent is such that on some days he will be constrained to leave early and return late. Most of the time when Ramesh is not in school he will have to be alone with nobody to look after him except a servant if the respondent chooses to appoint one. It is not enough even if economically the respondent is in a position to meet the needs of the boy. At this tender age it is necessary that Ramesh has to be in the control of somebody who will be able to look after him properly. It is not enough even if economically the respondent is in a position to meet the needs of the boy. At this tender age it is necessary that Ramesh has to be in the control of somebody who will be able to look after him properly. Though the respondent may have the capacity to do so we do not think that he will find the necessary time. In these circumstances, we are constrained to hold that the prayer of the respondent to get custody of the son cannot be allowed. 17. At our suggestion the appellant produced the boy in Court and we ascertained his inclinations. The boy expressed a desire to continue with the mother. 18. Counsel for the respondent contended that we should not interfere with the discretion of the Learned Judge in entrusting the custody of the minor to the father. It is true that the principle is that the discretion of the Court of first instance should not be likely interfered with. But we do not think that the principle can apply in cases were the appellate court is satisfied that the decision of the Trial Court is wrong. Every Court is bound to arrive at a proper decision. As was stated by Davies LJ. in In re O. (Infants) (C.A.), ( 1971 (2) W.L.R. 784 at p. 789: "In my considered opinion the law now is that if an appellate court is satisfied that the decision of the court below is wrong, it is its duty to say so and to act accordingly. This applies whether this appeal is an interlocutory or a final appeal, whether it is an appeal from justices to a Divisional Court of the Divorce Division. Every court has a duty to do its best to arrive at a proper and just decision. If an appellate court is satisfied that the decision of the court below is improper, unjust or wrong, then the decision must be set aside. I am quite unable to subscribe to the view that a decision must be treated as sacrosanct because it was made in the exercise of 'discretion': so to do might well perpetuate injustice." 19. The order of the learned Judge suffers from a fundamental error, in that be has not considered how well it will be possible for the respondent in the circumstances in which he is placed to bring up the boy. The order of the learned Judge suffers from a fundamental error, in that be has not considered how well it will be possible for the respondent in the circumstances in which he is placed to bring up the boy. R.W. 2 has deposed that he is I willing to render all financial assistance to the appellant to bring up the boy. There is absolutely nothing for us to suspect the statement in the evidence of R.W. 2. Nothing has been brought out in the evidence of the appellant to show that she is not capable enough to control and look after the son. The financial position of the respondent is such that he cannot be expected to admit the boy in a good boarding school which can look after him and his prospects. No doubt, for some time, when the appellant and the respondent were residing together, the boy was admitted in some boarding school in Olavakkode. The fact remains that the boy was subsequently withdrawn from there. Taking into consideration all the circumstances we are satisfied that it is necessary to allow the minor to continue in the custody of the appellant for his welfare. We therefore set aside the decision of the court below and allow the appeal. We make no order as to costs. We record the assurance given by the appellant's counsel that the appellant will always make the necessary arrangements for the respondent to visit the boy in her place of residence. This decision will not in any away affect the rights of the respondent to continue as the natural guardian of Ramesh.