ORDER R.C. Lahoti, J. 1. This is an appeal under Section 47 of the Guardians & Wards Act, 1890 directed against an order of the trial Court made under Section 25 of the Act in the matter of custody of the ward. 2. It is painful to notice the pathetic story of the litigation which is common in every matrimonial cause arising out of a broken marriage specially when the parties have offspring too, a child of tender age, as is in the case in hand. 3. A detailed and exhaustive order passed by the trial Court, taking into consideration every piece of oral and documentary evidence available on record of the case, and touching every relevant aspect and circumstance garmane to the case, consistently with the statutory provisions and principles laid down in decided cases, has rendered the task of this Court easier. 4. First the bare facts. The husband and wife are arrayed as appellant and opponent in the cause title. Jayant Babar, the appellant, and Deepa, the respondent were married at Gwalior on 14-12-1984. The union must have been very happy to commence with. Eaxctly nine months of the date of the marriage, the couple was blessed with a son, named Ritu Raj. The name and the naming ceremony must have been a cruel salire on the fate of the young one. He shall have the shadow of one only of the parents available to him for the rest of his life, as this litigation reveals, though he is happily named as Rituraj. 5. For about two years, the couple pulled on with each other and then occurred the wreckage. Small bickerings assumed dimensions resulting into separation of the couple, the child accompanying the mother as he does till this day. Proceedings for dissolution of marriage by a decree of divorce were initiated. As stated at the Bar, the marriage has stood dissolved by a decree of divorce. The mother, that is the respondent, is residing with her parents. On 6-4-1990 these proceedings were initiated by the father seeking custody of the child. On the day of initiation of the proceedings the child was less than 5 years of age. Now he is around 71/2 years. 6. The mother, that is the respondent, is residing with her parents. On 6-4-1990 these proceedings were initiated by the father seeking custody of the child. On the day of initiation of the proceedings the child was less than 5 years of age. Now he is around 71/2 years. 6. The pleadings of the parties too are the usual ones as are in such cases; each setting out its own merits justifying the claim for custody of the child attempting at persuading the Court to hold that welfare of the child would lie in entrusting the custody to it. The unusual feature of the case is that oral evidence is scanty and the documentary evidence is voluminous. Several letters written by the couple which ordinarily would have been personal and private, may be of prime possession to them, now form part of the Court record. Thanks to the availability of letters and the tellu-tale exposures made by them, the Court has been benefitted to a large extent in forming an opinion about the status in life, the nature, behaviour and conduct of the parties, their future prospects, their habits and idiosyncrasies, also to peep into their past to some extent, all so vital in enabling formation of an opinion as to the welfare of the child, the paramount consideration determining the better entitlement to custody of minor one. Let it be stated, while challenging the findings recorded by the trial Court, none of the parties has alleged any misreading or nonreading of the evidence, documentary or oral, on the part of the trial Court. The obligation of this Court as an appellate Court is further lightened and reduced to examining if conclusions drawn by the trial Court can be said to be mistaken in any manner. 7. Time is now ripe for reading and then summing up by summerising the conclusions recorded by the trial Court. This Court proposes to do the same, by assigning headings to the findings, the lower Court has arrived at (A) Status in life of the parties: The appellant, though 35 years of age, has not yet achieved a place of settlement in his career. He claims to be earning by drawing commission on the goods brought by him from Delhi and sold in the market. He does not have any business place of sitting such as a shop or office. His own earlier letters Ex. He claims to be earning by drawing commission on the goods brought by him from Delhi and sold in the market. He does not have any business place of sitting such as a shop or office. His own earlier letters Ex. D/6 and D/7 disclose that he was unemployed awaiting for a job or business and facing financial problems. He claims to have parental agricultural land at village Dhamtari near Raipur, but he could not substantiate that statement by producing certified copies of revenue records which was not difficult at all. In proceedings under Section 125 Cr.P.C. his own statement was that he was unemployed, also indebted. On the contrary the respondent is serving as a teacher in Saint Paul School, Morar, an educational institutional of repute for children and earning Rs. 1100/- by way of salary as substantiated by the certificate Ex. D/11 issued by the School authorities. Her father Anandrao Ingle is a retired employee of the Defence Accounts Department getting pension of Rs. 1300/- per month, also having F. D. Rs. yielding Rs. 600/- per month by way of interest. The respondent's mother two was employed as a teacher in Sanatandharam Middle School Morar earning Rs. 3079/- per month. Apart from the salary the respondent was earning Rs. 800/- per month by way of tution fee imparting instructions to the students privately. Documents Ex. D/22, D/24 to D/26 corroborated the statement of the respondent that she depending on her parents for herself was in a position to seve substantialy and was appropriating the saving to investments so as to make a provision for future of the child. (B) Availability of educational facility for the child: The appellant was not having a permanent place of residence. His ancesstral house was situated at Dhamtari and he was residing in Madhoganj locality of Gwalior in rented premises. He was required to go frequently to Bombay or Delhi in connection with the business which he claims to be engaged in. The respondent was living with her parents permanently at a place owned by them. The respondent has secured admission of the child in the same school where she is serving. She is available to the child in the recass. She also escorts the child between home and the school. She teaches the child in her spare time. In her absence her parents are available to take care of the child. The respondent has secured admission of the child in the same school where she is serving. She is available to the child in the recass. She also escorts the child between home and the school. She teaches the child in her spare time. In her absence her parents are available to take care of the child. The appellant did claim capability of making similar provision for the child stating that if entrusted with custody of the child he would be shifting to Dhamtari. However, Dhamtari does not have education facilities even equivalent to those available at Gwalior. Family disputes are going on between the plaintiff on one side and his brothers and other family members on the other generated by a claim for partition of the joint property. The settlement even in near future can be only wishful thinking. The mother of the appellant has already expired. His father is a heart patient. (C) The nature, conduct and behaviour of the parties: Allegations and counter allegations were slung against each other. However, the trial Court has strived to clear through the exaggerations and tried to find out the bare truths. The appellant was at one time a mental patient. He had to be admitted to Mental Hospital and kept under observations for about a fortnight. While being discharged he was given a follow-up treatment. Dr. (Mrs.) S. K. Malhotra admitted the possibility of the appellant having been a drug addict or one used to intoxications. Indeed the previous history of the patient disclosed to Dr. Malhotra was that he was one of drug addict. The ailment had assumed so much dimensions that the appellant had to be treated with electric shocks. Such mental state of affairs having undergone by the appellant was admitted by him too though the root cause assigned by him was the strained relations between the parties and his having been deprived of the company of the child. At this stage on the material available it would be difficult to from an opinion whether the cause assigned was really a cause for ailment or the appellant was conveniently associating his psychological disorders with these disputes so as to gain the sympathy of the Judge with the hope of securing success in the litigation. His own letters, Ex. D/1, D/2, D/4, D/5 and D/17 speak volumes against him. His own letters, Ex. D/1, D/2, D/4, D/5 and D/17 speak volumes against him. He could not find time and courage to attend and participate at the socio-religious functions relating to his son, clearly apologising for his previous sins and assuring the respondent of his having discontinued the drinks and begging to be excused at least once again acknowledging his having been forgiven on several occasions earlier. 8. On behalf of the appellant reliance was placed on certain letters written by the mother of the respondent to her wherein the mother was to be found counselling the respondent not to chastise the child often and on but to be affectionate to him. The learned counsel for the appellant submitted that the contents of these letters provided circumstantial evidence of the respondent's ill-treating the child. It is difficult to agree with such a contention. Having read the contents of the letters, this Court has formed an opinion that the letters simply indicated an over cautious grand-mother, giving advices to the mother of the little child without mentioning any ill-treatment being meted out to the child. 9. The learned counsel for the appellant also invited attention of this Court to the contents of those letters wherein a reference is found to have been made to some Mangalsingh, a constable, advising the respondent not to meet him or travel with him whilst alone. The learned counsel for the appellant submitted that the respondent was in illicit intimacy with that Mangalsingh and she was being advised by her mother not to do so. Such an argument is not only to be rebuffed but has also to be regretted. Having carefully read the contents of the letters, this Court finds itself not entered agreeing with the respondent's explanation offered. The precarious condition in which the respondent was placed having been illtreated and deserted by the appellant, also having been burdened with responsibility of the young child with practically no relations or friends around to help her, she was taking assistance from an elderly Police constable. However elderly and familiar the Police constable might have been, the respondent's mother was advising the respondent not to travel or move about with that constable all alone. It is preposterous to see the documents being read to suggest the respondent's immoral association with this Constable. However elderly and familiar the Police constable might have been, the respondent's mother was advising the respondent not to travel or move about with that constable all alone. It is preposterous to see the documents being read to suggest the respondent's immoral association with this Constable. (D) Conduct during the proceedings: The trial Court has chosen not to record any specific finding on such conduct of the parties as would amount to the appellant persisting in cruelty qua the respondent, yet considered the applications moved by the respondent and available on record giving an indication of what had happened. The appellant had attempted at meeting the child during school hours presumably with an idea of alluring him and taking away and that is why the respondent had to request the school authorities not to permit any stranger meeting the child during school hours. If the appellant was not eager to meet his son he might very well have sought leave of the respondent or her parents to meet the child at their residence. The appellant insisted on the child being produced in the Court while the respondent sought for Police protection disclosing her apprehension of the appellant using force in taking away the child. The respondent had admittedly lodged a complaint with the Court stating that the appellant with his associates had made such attempts, once in the Court precincts and once while the respondent was on way to Court travelling in a tempo taxi. Timely complaints made by respondent bear prima facie proof of her averments. 10. At the Bar during the course of hearing, a plethora of precedents was cited, most of them laying down propositions too well settled to need any citation. Let a few of them be noticed now. Rosy Jacob v. Jacob A. Chakramakkal AIR 1973 SC 2090 , is a leading authority laying down the law on relevancy of considerations to which the Guardians & Wards Courts should be alive while dealing with the question of custody of children. The dispute was between husband and wife, having separated by a decree of divorce. Their Lordships observed whether the prayer for custody of the minor child be considered under the Guardians & Wards Act or under the matrimonial law: The controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents. Their Lordships observed whether the prayer for custody of the minor child be considered under the Guardians & Wards Act or under the matrimonial law: The controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents. It was not disputed that under the Indian Divorce Act this is the controlling consideration. The Court's power under S. 25 of the Guardians and Wards Act is also, in our opinion, to be governed primerily by the consideration of the welfare of the minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedents the facts of two cases in this respect being seldom-if ever-identical. The contention that if the husband is not unfit to be the guardian of his minor children, then, the question of their welfare does not at all arise is to state the proposition a bit too broadly and may at times be somewhat misleading. It does not take full notice of the real core of the statutory purpose. In our opinion, the dominant consideration in making orders under S. 25 is the welfare of the minor children and in considering this question due regard has a course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor's welfare. There is no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare. 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 relevent circumstances. If the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right to their Custody under S. 25 merely because there is no defect in his personal character and to has attachment for his children. The father's fitness from the point of view just mentioned cannot override considerations of the welfare of the minor children. The father's fitness from the point of view just mentioned cannot override considerations of the welfare of the minor children. No doubt, the father has been presumed by the statute generally to be better fitted to look after the children-being normally the earning member and head of the family-but the Court has in each case to see primarily to the welfare of the children in determining the question of their custody, in the background of all the relevant facts having a bearing on their health, maintenance and education. The family is normally the heart of our society and for a balanced and healthy growth of children it is highly desirable that they get their due shares of affection and care from both the parents in their normal parental home. Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevent circumstances. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who, in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them. The children are not mere chattels : nor are they mere play-things for their parents. Absolute right of parents over the destines and the lives of their children has, in the modern changed social conditions, yielded to the consideration of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian Court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. 11. 11. A Division Bench of this Court in Budhulal Shankarlal v. An infantchild (not named) and others AIR 1971 MP 235 , following its own earlier decision in Bhagwati Bai v. Yadhav Krishna AIR 1969 MP 23 , and noticing the law laid down in the Supreme Court in Gohar Begum v. Sugni AIR 1960 SC 93 , held: The paramount consideration in every such case is the welfare of the minor. The best interest of the child is the primary consideration; the right of the guardian is secondary, so that the latter will not be enforced by issuance of a writ when it is in conflict with the former consideration. The guardian's claim to the custody of the child is not a right in the nature of property, but it is a right in the nature of trust for the benefit of the minor. 12. The concept of the welfare of the minor was dealt with in Raj Kumari Mahant v. Smt. Indra Kumari 1972 MPLJ 775 , viz.: The welfare of the minor is the paramount consideration which the Court has to bear in mind in appointing or declaring a guardian. Welfare must be understood in its widest sense so as to embrace the material and physical well being, the education and upbringing, the happiness and moral welfare. The Court must consider every circumstance bearing upon these considerations. 13. Two more authorities may be noticed. Therein in the facts and circumstances of the respective cases, the statutory right of the father as a natural guardian of the child was not allowed to prevail over the wife's custody of the ward on paramount consideration of the child's welfare. In Gangabai v. Bherulal AIR 1976 Raj. 153 , it was held: Under the law the father is a natural guardian and he should not ordinarily be denied his natural right to keep his child with him, but if circumstances in a particular case compel the Court to take a different view then simply because the father is the natural guardian the custody of the minor cannot be entrusted to him (father)- The father's fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor child in the context of all the relevant circumstances that have been brought on the record. If the custody of the father cannot promote the welfare of the minor equally or better than the custody of the mother, then he cannot claim indefeasible right to the minor's custody under Section 25 merely because there is no defect in his capacity to look after the minor. In Sunil Kumar Chowdhary and another v. Smt. Satirani Chowdhary and another AIR 1969 Cal. 573 , one of the learned Judges said so: Though under Section 19 of the Guardians and Wards Act, if the father is not fit to be the guardian of the person of a minor aged more than 5, the father should be the guardian, (Vide (1961) 65 Cal. WN 1138) still under Section 13 of the Hindu Minority and Guardianship Act, the prime and sole consideration will be the welfare of the minor. Section 19 of the Guardians and Wards Act will have, therefore, to be read subject to Section 13 of the Hindu Minority and Guardianship Act, so far as Hindus are concerned. 14. To sum up the welfare of the ward is a paramount consideration, all other considerations have secondary relevance. That is the mandate of law and morale of the precedents. The tender feelings of the child should not be shattered or hampered in developing, lest he should shape as an unwelcome citizen in the society. The questions to be asked are : Who would have the better care and better consideration for the welfare of the infant ? Where is he likely to be more happy ? By whom the physical and mental development and comfort of the child can be better looked after ? Who has not only the desire but a determination, not only the concept but also the capacity to provide for a better education and round the clock nursing of the child ? Who would be available by the side of the child when the child would need love and affection, the care and counselling, the protection and petting up ? Applying all the tests to the case of hand, certainly the respondent has a weightier case than the appellant. This Court unhesitatingly finds itself in entire agreement with the view taken by the trial Court that the welfare of the child requires custody being continued with and retained by the mother. 15. Applying all the tests to the case of hand, certainly the respondent has a weightier case than the appellant. This Court unhesitatingly finds itself in entire agreement with the view taken by the trial Court that the welfare of the child requires custody being continued with and retained by the mother. 15. Before parting let it also be placed on record that it was proposed on behalf of the appellant that if allowed the custody of the child he would be taking the child to Dhamtari (near Raipur), a place far away from the jurisdiction of the Court below. The Guardians & Wards Court is allergic to the idea of the ware being taken away from its jurisdiction unless such taking away itself be a must for welfare of the minor. 16. At the fag end of hearing, the learned counsel for the appellant chose to draw support for an alternative prayer from an unreported decision in Smt. Manju Tiwari v. Dr. Rajendra Tiwari (Writ Petition (Criminal) No. 264/89 decided on 18-1-90 by the Apex Court and the Kerala High Court decision in Baby Sarojam v. S. Vijayakrishnan Nair1, that in the event of this Court upholding the order of the trial Court, the appellant should be allowed to take the child with him at intervals on holidays, also for sufficient number of days at a stretch during annual holidays. On the circumstances deducible from the record and found proved by the Court below and upheld by this Court, it is difficult to concede with such a prayer, at least for the present. The child is of tender age thriving on the affection of the mother and maternal grand-parents. Sudden deprivation of that affection and switching over to entirely a different atmosphere, for howsoever short a time it may be, may cause psychological shock to the child. 17. The law of Guardians and Wards as administered in Indian Courts is sufficiently clastic and vests discretionary jurisdiction in the Courts enabling passing of subsequent orders to suit the changed circumstances. The appellant too should rivet his hopes on that jurisdiction. The happy union brought about by marriage sacrament could not last long and has soon resulted in an unhappy separation followed by divorce decree. Let the appellant not loose hopes but make resort to better sense and improvement in life by developing more inclination to that which is virtuous. The appellant too should rivet his hopes on that jurisdiction. The happy union brought about by marriage sacrament could not last long and has soon resulted in an unhappy separation followed by divorce decree. Let the appellant not loose hopes but make resort to better sense and improvement in life by developing more inclination to that which is virtuous. Let the appellant learn a lesson from his past and mould his present and future in such a manner as to earn the favour of the respondent herself and if not that then the Court's judicious favour on a day to come. This day let him only accept and submit to the dismissal of his appeal with boldness and serenity. Instead of indulging into litigative process he should let himself to contrite and exert more towards earning a station in life where the child on reaching the age of understanding may himself feel inclined to join him and the respondent-mother may probably herself feel inclined to entrust the child to him on being assured that the welfare of the child would be better secured with the appellant rather than herself. Subject to the hope so earnestly expressed which is the most which this Court can do for the appellant, on the records as they stand the appeal is dismissed upholding the order of the trial Court on all counts. Costs as incurred.