JUDGMENT - G.N. VAIDYA, J.:---In the above civil application, the applicant, who is the appellant in the above appeal has prayed for a direction to her husband, respondent No. 1, to deliver the custody of the third child of the marriage between them forthwith to the petitioner. She has also prayed for other reliefs, which are not pressed at the stage. The appeal is filed against an order on her notice of motion dated March 7, 1974 taken out in her M.J. Petition No. 1950 of 1974 for nullity of the marriage between the petitioner and the respondent No. 1, under section 24(1)(a) of the Special Marriage Act as the respondent No. 1 had suppressed the fact that respondent No. 2, his former wife was bring at the time of the second Marriage. The Notice of Motion was taken out for custody of ornaments and other moveable properties and also for other reliefs including delivery of the custody of the three children of the marriage Manoj, Mukesh and Mrinalini to the petitioner. 2. The Motion was opposed by the husband, respondent No. 1. The wife has made several allegations of a serious nature against the husband . The husband in his affidavit in reply has stated that since December 8, 1973. When the wife left the matrimonial home, she has never cared to see the children and the children are happy in his custody and the welfare of the children requires that they should continue in his custody because at the time of an inventory taken in the matrimonial home, certain letters written by one Thube addressed to the wife as Priya Arus C/o Arunprabha Gopal Thube, revealed the illicit intimacy between the wife and the said Thube. According to the husband, the welfare of the child Mrinalini requires that she should not be in the custody of the wife, who is leading an adulterous life with Thube. 3. On October 15, 1974 the learned Judge in the City Civil Court, who heard this Motion directed that the petition itself should be immediately heard and disposed of along with the Notice of Motion and accordingly fixed the petition to be heard on November 26, 1974, subject to overnight part-heard. 3. On October 15, 1974 the learned Judge in the City Civil Court, who heard this Motion directed that the petition itself should be immediately heard and disposed of along with the Notice of Motion and accordingly fixed the petition to be heard on November 26, 1974, subject to overnight part-heard. The learned Judge found that having regard to the serious nature of the allegation, it wad not desirable that the matter should be decided on the Notice of Motion merely on the basis of affidavits. Feeling aggrieved by the said order. The wife has filed the above appeal from Order No. 505 of 1974, in which she has filed the above civil application for custody of only the youngest child Mrinalini, who was born on July 10, 1972. 4. The only question, which is to be decided on this application is whether during the pendency of the above appeal, the notice in which is made returnable on January 6, 1975 the custody of the third child should be ordered be delivered to the wife. Mr. Morje, the learned Counsel for the wife did not press the prayer for custody of the other two children, who are at present studying in the 7th standard and 6th standard respectively in a Municipal School at Naiguam. He only prayed for the delivery of custody immediately of Mrinalini, who is of tender age. The question as usual in such matters is very delicate and difficult to decide. But it must be decided in accordance with the well settled principles in such matters irrespective of the allegations made by the parties, which in a matrimonial case, are very often founded on imaginary suspicions and misunderstandings. 5. Mr. Mandrekar, the learned Counsel appearing for the husband contended that the application is liable to be dismissed because the appeal itself is not competent as no final order has been passed on the notice of motion. The objection is without any substance because the very fact that the learned Judge refused to pass an order forthwith for the custody of the child was an order on the notice of motion and against that order, prima facie in appeal from an order. 6. The objection is without any substance because the very fact that the learned Judge refused to pass an order forthwith for the custody of the child was an order on the notice of motion and against that order, prima facie in appeal from an order. 6. Turning to the merits, the mere fact that the husband made some allegations of adultery against the wife cannot be considered as sufficient to disentitle the wife to the immediate custody of a child of tender age like Mrinalini. It seems that the attention of the learned Judge in the City Civil Court was not brought to a Division Bench judgment of this Court (Saraswatibai Shripad Ved v. Shripao Vasanji Ved)1, Bom.L.R. 79 decided by Sir John Beaumont, C.J and Wedia, J., in which similar allegations of tuberculosis were made against the wife by the husband; and Beaumont C.J., with great respect very rightly observed on page 81-82 as follows :--- It is impossible, in the case of a young child, to find any adequate substitute for the love and care of the natural mother. If the natural mother is a suitable person, the courts in England will as a general rule hand over the custody of a child of tender years to the mother. The mothers position is regarded as of much more importance in modern times than it was in former days, when a wife was regarded as little more than the chattel of her husband. The view of society in India as to the position of women may not have advanced so far or so fast as in England, but at the same time the right of the mother to the custody of her young children is undoubtedly recognized in this country, see for example Bai Tara v. Mohanlal. However the paramount consideration is the interest of the child, rather than the rights of the parents. Human nature is much the same all the world over, and in my opinion if the mother is a suitable person to take charge of the child, it is quite impossible to find an adequate substitute for her for the custody of a child of tender years. These principles ought to have guided the learned Judge in deciding the matter even on an interlocutory application. 7. These principles ought to have guided the learned Judge in deciding the matter even on an interlocutory application. 7. In Bai Taras case referred to by Beaumount, C.J., Mohanlal was the father of the minor boy aged 7 years living with his mother Bai Tara. The parents had a quarrel and were living separately. The father took a second wife. The mother went to live with her father. Mohanlal applied to be appointed guardian of the person of the minor and to have the custody of the minor. The lower Court made the order. Bai Tara appealed to the High Court. It was held that it was in the interest and welfare of the boy, that the boy should remain with the mother, though the father was the natural guardian of the minor. 8. Section 13(1) of the Hindu Minority and Guardianship Act, 1956, lays down that in the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. 9. Bearing-in-mind these principles, I think that it was prima facie most unnatural for the husband to deprive the wife of the custody of the child of 2 years in the way in which he has done. The so-called love letters of thube must have been, even assuming that they were addressed by him to her, were addressed to her prior to her departure from the matrimonial home on December 8, 1973. Mr. Mandrekar has produced before me those love letters and stated that these letters addressed by Mr. Thube were seen by the learned Judge. But there is nothing in the order passed by the learned Judge that these letters were shown to him. I do not wish to express any opinion relating to these letters at this stage, but it is enough to show that atleast one of them is dated February 3, 1973 i.e. 10 months prior to the departure of the wife from the matrimonial home. Id the child could be with the mother when these letters were addressed. I do not understand why only because these letters were found in the cupboard which is also rather strange, inner absence, she should be deprived of the custody of the daughter, who is just about 2 years old. 10. Id the child could be with the mother when these letters were addressed. I do not understand why only because these letters were found in the cupboard which is also rather strange, inner absence, she should be deprived of the custody of the daughter, who is just about 2 years old. 10. In my judgement, the welfare of the child requires that the child should be with the mother and not the father having regard to the serious allegations which the wife has made against the father. If the allegations made by the wife are prima facie taken into consideration, the husband cannot be left with the custody of the child in the interest and welfare of the child for even a minute. Although the petition is posted for hearing, the petition is not taken up for the hearing, I am therefore, of the view that the welfare of the child requires that she should be immediately delivered to the custody of the wife. She has been trying to get, the custody from March 1974 and because the notice of motion could not be disposed of till October 1974. She has been deprived of the custody till now. 11. As stated by Beaumont, C.J., there is no substitute for a mother in respect of a child of tender age. Taking all the allegations made by the husband against her into consideration, the learned Judge ought to have passed an order in favour of the wife consistent with the principles laid down by, our Court in the above cases. Interim custody is always temporary custody. If at all the husband was anxious about the child, some fair arrangements could have been made for his seeing the child. Prima facie it appears to me to be in human that the mother should be deprived of a child of the tender age of Mrinalini in this case in the manner in which the husband has done. 12. The husband has filed an affidavit in reply to the Civil Application without even stating who will look after the child when he is going to work. Mr. Mandrekar, the husbands Counsel states that the husbands mother looks after the child. But as stated above. There are very serious allegations against the husband of living in adultery with a maid servant and having a first wife who comes and lives with him. Mr. Mandrekar, the husbands Counsel states that the husbands mother looks after the child. But as stated above. There are very serious allegations against the husband of living in adultery with a maid servant and having a first wife who comes and lives with him. It is not possible to decide these allegations at this stage. But it is impossible to ignore the welfare of the child and allow the child to continue with the husband when the child is of such tender years. The Rule is therefore, made absolute. The respondent No. 1 is ordered to deliver forthwith the custody of Mrinalini to the applicant. The child is brought before the Court as directed previously. I direct that the child should be handed over immediately to the wife. 13. The respondent No. 1 accordingly delivered custody of the child to the mother and the mother shall take care of the child and whenever the respondent No. 1, husband wants to see the child and a request is made through his Advocate, she should, subject to the welfare of the child, make arrangements through her Advocate for enabling the husband to see the child. 14. This should be the arrangement until orders by the Court on the appeal from order or until final orders on the M.J. Petition No. 1950 of 1974, whichever is earlier. Whatever remarks I have made in this order shall not affect any of the rights and contentions of either of the parties at the hearing of the appeal or at the hearing of the matrimonial petition. The trial Court shall have liberty to ask the wife to produce the child before the Court whenever the Court requires or thinks it proper notwithstanding whatever is ordered above. 15. Costs of the application will be costs in the appeal. -----