JUDGMENT N.N. Mithal, J. - In this First Appeal From Order, the mother of a minor girl has assailed the order of the District Judge whereby she has been directed to give the custody of the minor girl to her divorced husband. 2. The main plank on which the order of the court below is assailed is two-fold. Firstly that S. 25 of the Guardians and Wards Act (for the sake of brevity expression, hereafter called 'G & W Act') was not applicable in the present case as the ward had neither been removed nor had left the custody of the lawful guardian and secondly that the proceedings under S. 25 of the G & W Act must be treated to be barred in view of the new provisions which have been brought in by S. 26 of the Hindu Marriage Act, hereafter called 'H.M. Act', read with S. 4 sub-cl. (b) thereof. Arguments have also been addressed on merits and also on the ground that wishes of the minor had not been ascertained before the impugned order was passed. 3. On the first question, it appears to me that the learned counsel is not on firm ground. It is not disputed that the girl in question is a minor as she has not completed the age of 18 years. The respondent is undisputedly the natural guardian of the girl and the mother was entitled to her custody only up to the age of five years in normal circumstances. The other undisputed facts are that the marriage of the parents had taken place on 9th Oct. 1969 and the girl in question was born of the wedlock on 14th August, 1971. Subsequently there was estrangement between the two which resulted in a decree for divorce on 8th Sept. 1977 on the basis of a compromise. It is also not disputed that in 1978 the husband has remarried while the mother remains unmarried so far. The father is a teacher. However, the mother also claims to be a teacher, the, fact which is disputed by the father on the ground that she is under suspension at the moment. Admittedly, the girl in question is nearing her 14th birthday. 4. The father is a teacher. However, the mother also claims to be a teacher, the, fact which is disputed by the father on the ground that she is under suspension at the moment. Admittedly, the girl in question is nearing her 14th birthday. 4. S. 25 of the Act provides that where a ward leaves or is removed from the custody of his guardian, the court may make an order for his return if it was satisfied that doing so would be for the welfare of the ward. Sri Vishnu Sahai has tried to emphasise that in this case the girl has been all through in the custody of the mother and thus there was no question of her either leaving the custody of the father or being removed from his custody. The argument, however, stands rejected by a long series of decisions of this court as well as of various other High Courts of this country. In such matters, the judicial interpretation has always taken a merciful view of the matter so as to prevent the court from being rendered powerless. The courts have always treated the custody mentioned in S. 25 as constructive custody. According to law, the father being the natural guardian, if the ward is not in his custody that is enough to hold that he has been removed or has left the lawful guardianship and in such cases the lawful guardian has always been held to be entitled to the restoration of the custody. It is true that S. 25 of the G & W Act speaks of custody and leaving or removal, but having regard to the object underlying the provision, it must be construed to mean that custody in this section imputes not only actual but also juridical or legal custody and that removal is not merely confined to the physical taking away but must necessarily include refusal by a person not authorised to get custody to deliver back the minor when asked to do so by the natural guardian. To hold otherwise must necessarily lead to disastrous results frustrating the true purpose and object of the provision. Such a meaning, the courts have always avoided. In Mst. Ulfar Bibi v. Bafati, AIR 1927 All 581 the same view was expressed by a Division Bench of this court. To hold otherwise must necessarily lead to disastrous results frustrating the true purpose and object of the provision. Such a meaning, the courts have always avoided. In Mst. Ulfar Bibi v. Bafati, AIR 1927 All 581 the same view was expressed by a Division Bench of this court. The submission in this respect, therefore, appears to be devoid of substance and must be rejected. 5. The second leg of the argument of the appellant was that whatever may be the position prior to the passing of the Hindu ,Marriage Act, the position has basically changed thereafter in view of S. 26 of the H.M. Act which has a parallel provision and has overriding effect on all existing lays. According to the counsel, S. 26 of the Hindu Marriage Act provides for proceedings being taken either during the pendency of a proceeding under the G & W Act or at the time of passing the decree in such proceedings or even subsequent thereto in the matter regarding custody of minor children. For the sake of convenience, S. 26 may be extracted here as under : "In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made." 6. A comparison of S. 25 of the G & W Act with this section would show that a proceeding under S. 25 of the G & W Act would only be initiated at the instance of a lawful guardian i.e. one who had been appointed by the court or any one who was the natural guardian of the person or was a guardian otherwise. S. 26, however, does not necessarily require so. S. 26, however, does not necessarily require so. Even the mother, who is not the natural guardian of the minor child, is entitled to move an application for the custody of the minor. Apart from this, under S. 25, the mere fact that a person is a guardian would be sufficient to entitle him to obtain an order from the court for restoration of minor's custody. In proceedings under S. 26 of the H.M. Act, however, the parties have to satisfy whether it would be just and proper to give custody to one or other keeping in view the maintenance and education of the minor and that too consistently with his or her wishes. It may, however, be said here that while considering an application under S. 25 of the G & W Act, the court has been given the power to take into account the welfare of the ward which may also include the maintenance and education of the minor. However, Sri Vishnu Sahai has tried to impress that S. 4(b) gives paramountcy to proceedings under the H.M. Act over any other Act for the time being in force. The relevant portion of the section is as under : "4. Save as otherwise expressly provided in this Act. (a) .......................... (b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act." 7. The argument of the learned counsel is that S. 25 of the G.& W Act and the provisions of S. 26 of the H.M. Act are totally inconsistent and, therefore, S. 26 of the H.M. Act would prevail to the exclusion of proceedings under S. 25 of the G & W Act. In order to support his submission, he has placed reliance on a decision of the Supreme Court in Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090 . That was a proceeding under the Indian Divorce Act and the parties had three children, two sons and a daughter. It may be mentioned here that under the Indian Divorce Act, the sons of native fathers cease to be minors at the age of 16 years and their daughters cease to be minors on attaining the age of 13 years. That was a proceeding under the Indian Divorce Act and the parties had three children, two sons and a daughter. It may be mentioned here that under the Indian Divorce Act, the sons of native fathers cease to be minors at the age of 16 years and their daughters cease to be minors on attaining the age of 13 years. Under the G & W Act, however, the corresponding age for the cessation of minority of both boys and girls is 18 years. In that case also an argument was raised that a proper petition ought to have been moved for the custody of children under the Indian Divorce Act, instead of one under S. 25 of the G & W Act. In paragraph 14 of the report, the Supreme Court had this to say : "If the court under the Divorce Act cannot make any order with respect to the custody of Ajit alias Andrew and Maya alias Mary and it is not open to the Court under the Guardians and Wards Act to appoint or declare guardian of the person of his children under S. 19 during his lifetime, if the court does not consider him unfit, then, the only provision to which the father can have resort for his children's custody is S. 25. Without, therefore, laying down exhaustively the circumstances in which S. 25 can be invoked, in our opinion, on the facts and circumstances of this case, the husband's 'application under S. 25 was competent with respect to the two elder children. The two elder children had attained the age of more than 16 and 18 years at the relevant time and were no longer minors within the meaning of Indian Divorce Act . (Note by me). The court further observed as under : "With respect to Mahesh alias Thomas, however, the Court under the Divorce Act is at present empowered to make suitable orders relating to his custody, maintenance and education. ,It is, therefore, somewhat difficult to impute to the Legislature an intention to set up another parallel court to deal with the question of the custody of minor which is within the power of a competent Court under the Divorce Act. We are unable to accede to the respondent's suggestion that this application should be considered to have been preferred for appointing or declaring him as a guardian. We are unable to accede to the respondent's suggestion that this application should be considered to have been preferred for appointing or declaring him as a guardian. But whether the respondent's prayer for custody of the minor children be considered under the Guardians and Wards Act or under the Indian Divorce Act, as observed by Maharajan J., with which observation we entirely agree, "the controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents". (Emphasis provided) 8. It is no doubt true that parts of the observations made by the Supreme Court do favour the view canvassed before me but ultimately the court did not reject the application on the ground that a proper application under S. 25 of the G & W Act should have been made but preferred to concentrate on the question of welfare of the children as in its opinion the basic considerations between the two Acts turned out to be almost similar. In spite of the apparent inconsistencies pointed out between the provisions contained in S. 26 of the H.M. Act and S. 25 of the G & W Act, I do not find anything basically inconsistent in the two provisions. The provisions of S. 26 of H.M. Act have a limited application only after a proceeding under that Act has once been launched by any one of the spouses. Where no such proceeding was ever taken, the provisions of S. 26 will not get attracted. On the other hand, the provisions of S. 25, G & W Act, would be applicable in all circumstances. In this view of the matter, even though it may have been more proper to move the court where divorce proceeding under the Hindu Marriage Act has been taken for the purpose of custody of the minor, yet this application, even though moved under S. 25 of the G & W Act, can conveniently be treated to be one under s. 26 of the H.M. Act, since no further evidence would be necessary for the sai, purpose and none of the parties is likely to be prejudiced. 9. Turning our attention now to the merits of the present case, we must bear in mind that while considering the question of custody of minor, the only and only consideration must be the welfare of the child. 9. Turning our attention now to the merits of the present case, we must bear in mind that while considering the question of custody of minor, the only and only consideration must be the welfare of the child. This is the principle that was laid down in the case of Rosy Jacob (supra) where the principle enunciated was that the courts while deciding this question are to be governed primarily by consideration of the welfare of the minor concerned. Discretion vested in the court is, as is the case, that all judicial discretion has to be exercised judiciously in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedent, the facts of two cases in this respect being seldom if ever, identical. In Dr. Mrs. Veena Kapoor. v. Varinder Kumar Kapoor, AIR 1982 SC 792 , also it was laid down by the Supreme Court (while hearing a special leave petition in a Habeas Corpus petition that in all matters ,concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal rights of this or that particular party. 10. In Thrity Hoshi Dolikuka v. Hoshiam Shavaksha Dolikuka, AIR 1982 SC 1276 , in a dispute between Parsi parents of minor children, the Supreme Court reiterated the principles laid down in the case of Rosy Jacob ( AIR 1973 SC 2090 ) (supra). The law in point was summarised by the Supreme Court as under : "The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the court has special responsibility and it is the duty of the court to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody of a minor, the court has to be guided by the only consideration of the welfare of the minor." 11. In dealing with a matter concerning a minor, the court has special responsibility and it is the duty of the court to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody of a minor, the court has to be guided by the only consideration of the welfare of the minor." 11. The very same considerations impelled the Supreme Court in Smt. Surinder Kaur v. Harbux Singh Sandhu, AIR 1984 SC 1224 in saying that S. 6 of the Hindu Minority and Guardianship Act, 1956 could not supersede the paramount consideration as to what was conducive to the welfare of the minor. 12. All the cases to which a reference has been made above, in unequivocal terms made out that the primary, secondary and tertiary importance in cases of custody of minor children is always the welfare of the child and not the legal title between the parents. The legal battle between the parents must not be a factor affecting the considerations of minor's welfare. The court must from their conduct, determine where the interest of the minor would lie and barring that nothing else should affect the decision of the court on the question. 13. As we have seen earlier, after the marriage of the parties according to Hindu rites on 19-10-1970 admittedly, the child was born in the maternal grand-father's home. By that time, relation between the spouses had already soured and by 1972 the legal battle between them had already travelled to the court in the shape of an application for maintenance by the wife which was dismissed in 1973. In 1975, the father of the wife died and thereafter the battle between the two was at its worse. Finally a proceeding under S. 500 I.P.C. had been moved and decided against the mother in which she was found guilty and was left with a warning. We cannot say who was the erring party. May be the wife, who is educated could not tolerate the oppression and did not like to be treated as a backward class by the husband. May be she was making a crusade against the depression and while doing so crossed all barriers of decency in her zeal to out manoeuvre the other. It is also possible that she was doing it with a filthy mind just to malign her husband. May be she was making a crusade against the depression and while doing so crossed all barriers of decency in her zeal to out manoeuvre the other. It is also possible that she was doing it with a filthy mind just to malign her husband. But as I have said earlier, we are not concerned with what they did and what was the background and reason behind their action. We have to examine dispassionately as to where the welfare of the minor girl would lie. The court below has taken a severe view of the two decisions in certain proceedings initiated between the father and the mother where the mother was found to be the guilty person. This observation of the court below, however, does not appear to be really correct. The proceedings for maintenance could have been filed but had failed. It alone does not make the mother dis-entitled to the custody of the girl. If in her over-zealousness the mother started a crusade and took up cudgels against her husband and started making insinuating remarks about the character of her husband with all exaggeration at her command, who invited the wrath of her husband in a proceeding under S. 500 I.P.C. which resulted in her conviction. Thereafter there are documents to show certain proceedings which were launched by the wife at Saharanpur or at Muzaffarnagar against various persons. They are not really material and they do not help to decide the matter wither way. If a F.I.R. is lodged and after preliminary investigation it is found that no case is made out, it does not mean that the allegations made therein were untrue or that any presumption should be raised against the wife for that reason. The only important document which could be used against the lady was paper No. 55A on the record but that is only a typed copy of the F.I.R. said to have been lodged by her in which insinuation of a most sordid nature had been inflicted on the lady herself. It is not a certified copy. No one has proved it, it is not really established that it was she who had lodged any such report. The nature of the allegations is so filthy that it is not possible that a woman, much less one who is M.A. B.Ed. would dare make and implicate her own character in such a dirty way. No one has proved it, it is not really established that it was she who had lodged any such report. The nature of the allegations is so filthy that it is not possible that a woman, much less one who is M.A. B.Ed. would dare make and implicate her own character in such a dirty way. I can only say that the document was neither admissible in evidence nor should have been marked exhibit by the court below. There could not be any justification for even making a reference to this document. 14. Thus the evidence that we are left with is that there was a legal battle of sorts going on between the parents which was more or less of usual nature as we see these days between embittered spouses. Life is changing fast and with the increasing education of women they are also not prepared to be treated like chattels and would like to ventilate their grievances in public. We must also note here that the mother was only an Intermediate before the marriage having secured First Division with 67% marks and distinction in English. She passed her Intermediate in 1967 in Second Division with 59% marks and distinction in Sanskrit. Then there is a gap and it is not difficult to assume that this was on account of her marriage which took place in 1970. After the birth of child she resumed her studies and passed her B.A. in 1972 securing First Division with 68.5% marks. M.A. Degree followed in 1975 with 66% marks and next year in 1976 she obtained her B.Ed. also in Second Division. The time which she was spending in her education for M.A. and B.Ed. appears to be the worst period during which she was embroiled in all kinds of litigations. But suddenly everything came to an end when a decree for divorce on a compromise is obtained on 8-9-1977. The wife did not contest the petition but prayed that the decree for divorce may be granted. It appears to me that thereafter there has not been much acrimony, at least not the type which showed its face in the law courts except of course the petition for the custody of the child which had been pending even at the time when the divorce petition was pending in the Court below. 15. It appears to me that thereafter there has not been much acrimony, at least not the type which showed its face in the law courts except of course the petition for the custody of the child which had been pending even at the time when the divorce petition was pending in the Court below. 15. My object in narrating all these facts is to show that the mother is an educated lady and although there had been a period in her life when she may have behaved in an abnormal manner and would have behaved like that when pressed by circumstances with a vision of happy married life shattered to pieces and the father on whom she may have had some dependence also departing from this world in 1975. In this background one can really imagine the traumatic experience she must be undergoing during that period of life. A few aberration in her behaviour at that time therefore, cannot deviate or distract in forming a balanced judgment about the welfare of the child. 16. The father is an educated man being M.A. B.Sc. B.T. and is a Lecturer in S. D. Inter College, Muzaffarnagar. Admittedly he has married a second time in 1978. There is nothing on the record against him to show that he will not be able to maintain and educate the minor. On the other hand the mother is also an educated lady and was employed in Jain Kanya Inter College, Shamli where the minor was also studying some time back in VIII Class. She was getting a salary of Rs. 775. She also purchased a house there in 1982 after disposing of some property owned by her at Muzaffarnagar. Admittedly, the minor girl has throughout been with her mother. She was born at Saharanpur while the mother was living with her parents and ever since she has been with her mother and never for a day with her father. One can readily imagine the emotional attachment that she must have or must have acquired over the years for the mother and the father would be like an uttar stranger to her. If there could be any chance of an attachment between her and her father, the chances were ruined by the unfortunate litigation between the parents from 1972 till 1979. If there could be any chance of an attachment between her and her father, the chances were ruined by the unfortunate litigation between the parents from 1972 till 1979. In these circumstances, for the proper framing of the girl in an atmosphere in which she ought to be feeling really at home and at comfort must not be taken away. 17. The whole petition of the father is based on the legal right as a guardian but as we have seen that legal right to be the guardian is not of a paramount consideration and the basic question always is where the ultimate good of the minor lies. To deprive her from the comforts of her mother's house and to place her in an utterly alien atmosphere in the house of the father with whose temperament she has no contact so far and a step mother in the house with whom also she will have to acquire a rapport soon could be too severe an emotional strain on her at this tender age now that she is nearing her 14th birth day. This is the time when she would need mother's counselling in many matters in which the father can be of no help. The emotional changes, the feelings and expectations which a young lady would have in very near future can best be controlled and counselled by the mother with whom she has already a rapport but not in an alien atmosphere of the father's house. Broadly speaking, the situation in which the minor is placed today, I can only visualise that her mother's house is the only place where she can be at ease, comfortable and at home, where she can get allt he advice that she needs and she had also been supported so long, by her mother who appears to have sufficient means for the purpose. 18. It has been vehemently urged that the mother is a woman of easy virtues. She had been a 'Katha Vachak' and used to leave the minor alone and the reputation that she has earned in the past, she is not the best person to keep her custody. All that evidence is of a time when she had lost the support of her father and her brother was also not maintaining her. She had to fend for herself and make her two ends meet. All that evidence is of a time when she had lost the support of her father and her brother was also not maintaining her. She had to fend for herself and make her two ends meet. Once she has got employment sometime in 1978, things for her have changed and there is no indication in the evidence that she has ever behaved in a manner unbecoming of a lady. I cannot, therefore, place too much reliance on the incidents of yester years and today at least I find her the most suitable and/or competent person of the two to have the custody of the minor. S. 26 of the H.M. Act is wide enough in its amplitude to permit the father to seek an alteration of this order if she can show that the situation so demands. The orders for custody of a minor are not for all times to come. They are only interim orders which can be changed as and when the situation and welfare of the child may so require. The Courts have to be alive to this situation and have always responded whenever called upon to decide such matters with eagerness and right earnest. How do I wish that in this High Court we could not do the same thing with the promptness that the situation demands but for the unbearable burden of arrears. I cannot find an escape route for the anguish which I have in deciding this small matter 8 years after it was lodged in this court. The situation being what it is, the public and the Courts have to bear with it unless some method can be devised to expedite disposal of the matters which are so intimately connected with the welfare of the children, their health and psychological development. I am aware that they are citizens of the future and we must see to it that they develop as healthy and balanced citizens of the country. 19. Having given my careful thought to the entire matter and the evidence on the record, I feel convinced that the custody of the minor girl now 14 years old must remain with the mother and the directions given to the contrary by the Court below must be set aside. 20. 19. Having given my careful thought to the entire matter and the evidence on the record, I feel convinced that the custody of the minor girl now 14 years old must remain with the mother and the directions given to the contrary by the Court below must be set aside. 20. In the result, the appeal is allowed, the order of the Court below directing that the custody of the minor be given to the respondent is set aside. However, in the circumstances of the case and looking to the nature of the proceedings, I would direct that parties shall bear their own costs throughout.