JUDGMENT 1. Civil Miscellaneous Appeal filed against the order and decreetal order dated 29.04.2011 made in G.W.O.P. No. 44 of 2010 on the file of the Learned Principal District Judge, Namakkal. 2. The facts of the case relate to an unsuccessful married life of two Doctors by Profession and the present appeal relates to the custody of their only child Sudharsan, aged about 10 years now. This dispute started when the boy was 7 years old. 3. The Appellant and the Respondent were married on 20.01.2002. Their married life fell apart and the allegations and counter allegations of cruelty against each other surfaced. 4. The Appellant/husband filed H.M.O.P. No. 25 of 2010 for divorce before the Sub-Court, Rasipuram. The same was resisted by the Respondent/Wife. The Respondent wife an application dated 07.07.2010 under Section 25 of the Guardians and Wards Act, 1890 for the custody of the minor Sudharsan who was 7 years at that time and was in the custody of the Appellant father. 5. The Application was resisted by the Appellant/husband on all grounds, more particularly on the ground that the appellant has all the means to maintain the child and he was put in a good school and being educated, whereas, the Respondent/wife was staying in a hospital and pursuing her higher studies. 6. An Interlocutory Application was filed by the Appellant in I.A. No. 39 of 2010 in HMOP No.25 of 2010 for a protection order seeking protection that the Respondent/wife should not forcibly take away the child from the custody of the father. 7. Similarly, the respondent also filed I.A. No. 40 of 2010 under Section 26 of the Hindu Marriage Act, 1955 for the Interim Custody of the child. The prayer sought for in the petition was as follows: 8. 18.09.2010, the respondent made an endorsement that she will not without a Court Direction, forcibly take away the child from the Appellant. The endorsement reads as follows: 9. On the same day, an order was passed recording the endorsement made by the respondent and permitting the respondent to take the child Sudharsan on every 2nd and 4th Saturday and hand over the child back on the ensuing Sunday. The order reads as follows: 10. The endorsement reads as follows: 9. On the same day, an order was passed recording the endorsement made by the respondent and permitting the respondent to take the child Sudharsan on every 2nd and 4th Saturday and hand over the child back on the ensuing Sunday. The order reads as follows: 10. Meanwhile, G.W.O.P. No. 44 of 2010 was contested and enquired and the learned Principal District Judge, Namakkal passed an order on 29.04.2011, thereby allowing the Application and directed the Appellant to hand over the custody of the child. The said order is challenged before this Hon’ble Court on various grounds. 11. Though the main ground raised in the grounds of Appeal is that the Court below has come to an erroneous conclusion and the welfare of the child was not discussed, the maintainability of the petition was also questioned before this Court by the learned Senior Counsel Mr. N. Jothi. 12. A detailed Written Submission raising various legal issues was filed by the appellant. The main contentions of the Learned Senior Counsel are as follows: (i) the Appellant filed a divorce petition in HMOP No.25 of 2010 on 24.06.2010 under the Hindu Marriages Act, before the Sub-Court. (ii) after the receipt of the summons in the divorce petition, the respondent presented a petition dated 09.07.2010 under Section 25 of the Guardian and Wards Act (hereinafter referred as Guardianship Act) for the custody of the child before the District Court. (iii) thereafter, the respondent has preferred I.A. No. 40/2010 in the divorce petition praying interim custody of the child. (iv) While filing a petition under Guardianship Act, it is mandatory to make a declaration that no such relief is sought for in any other Court. (v) Meanwhile a consent order was passed in the I.A. No. 40/2010 on 18.09.2010 granting interim custody of the child to the Respondent, on the 2nd and 4th Saturday and Sunday of every month. (vi) the respondent who had obtained an order of interim custody under the provisions of the Hindu Marriages Act, had not disclosed the same before the District Court where the G.W.O.P. was pending. (vii) Under Section 14 of the Guardianship Act, if there are simultaneous Proceedings in different courts and each of the Court shall stay the proceedings. (vi) the respondent who had obtained an order of interim custody under the provisions of the Hindu Marriages Act, had not disclosed the same before the District Court where the G.W.O.P. was pending. (vii) Under Section 14 of the Guardianship Act, if there are simultaneous Proceedings in different courts and each of the Court shall stay the proceedings. (viii) the proceedings under the Guardianship Act has no overriding effect over the provisions of the Hindu Marriages Act as it is the special enactment under the personal law of the parties. (ix) the parties being Hindus, the provision of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred as HMG ACT) alone will prevail and the natural guardian for the Hindu Minor boy is the father. Petition filed under Section 25 of the Guardianship Act is not maintainable as it is not applicable to the mother. (x) welfare of the minor is of paramount consideration to decide the guardianship of the child and the Court below was erroneous in allowing the G.W.O.P. 13. The Learned Senior Counsel relied on the following case Laws: (i) Radhika Konel Parekh v. Konel Parekh LNIND 1992 MAD 299 : (1993) 1 MLJ 163 ; (ii) Gaurav Nagpal v. Sumedha Nagpal 2009 (6) CTC 497 : LNIND 2008 SC 2272 AIR 2009 SC 557 : (2009) 1 SCC 42 : (2009) 2 MLJ 1036; (iii) Sivashanmugharaja v. S. Narmathai 2007 (2) L.W.736 : LNIND 2006 MAD 2736 : (2007) 7 MLJ 273 ; (iv) Lekha v. P. Anil Kumar 2006 (4) L.W. 768 : LNIND 2006 SC 1001 : (2007) 2 MLJ 298; (v) Vishnu and Others v. Jaya AIR 2010 SC 2092 : LNIND 2010 SC 373 : (2010) 6 SCC 733 : (2010) 8 MLJ 1084 ; (vi) Mausami Moitra Ganguli v. Jayat Ganguli AIR 2008 SC 2262 : (2008) 7 SCC 673 : LNIND 2008 SC 1155; (vii) Nil Ratan Kundu and Another v. Abhijit Kundu 2008 (4) CTC 425 : AIR 2009 SC 732 : LNIND 2008 SC 1610; (viii) Ashokkumar v. Sangitbai AIR 1998 MP 59 (Indore Bench) (ix) Dr. Nithya Vidyaprakashv. B. Suresh Babu 2010 (3) CTC 618 : LNIND 2010 MAD 1587 : (2010) 5 MLJ 805 (from Page No.19 onwards) (Spiral Binding). 14. On the other hand, Mr. Nithya Vidyaprakashv. B. Suresh Babu 2010 (3) CTC 618 : LNIND 2010 MAD 1587 : (2010) 5 MLJ 805 (from Page No.19 onwards) (Spiral Binding). 14. On the other hand, Mr. S.V. Jayaraman, Learned Senior Counsel who appeared for the respondent/wife, submitted that the appellant has not raised any of the above pleas before the trial court. The Learned Senior Counsel pointed out that when the Divorce Petition was filed by the husband, the wife has filed an application for visitation right under the provisions of the Act, which she is entitled to. As an interim arrangement, with the consent of the parties, a visitation right was granted to the wife. Therefore, filing an interlocutory application will not amount to a simultaneous proceedings for guardianship. 15. The Learned Senior Counsel further pointed out that filing an Application for custody is again a statutory right of a mother under the Guardian and Wards Act 1890 and the provisions under the Hindu Minority and Guardianship Act 1956 are not applicable. The learned Senior Counsel submitted that when the G.W.O.P. Application was hotly contested, the appellant did not protest that there is a simultaneous proceedings, as he was well aware that the order passed in the child and the main issue of the custody has to be decided only under the Guardianship Act by the District Court. 16. The Learned Senior Counsel further submitted that the Welfare of the Minior Child is of paramount importance and the Court below has considered this aspect and only thereafter, it has granted the custody of the child to the mother. 17. This Court had heard both sides and perused the materials available on record. 18. Though it is a simple appeal arising out of an order passed by the District Court in an Application filed under Guardian and Wards Act, 1890 for the custody of a minor child, interesting legal questions are also raised by the Learned Senior Counsel who appeared for the Appellant. Therefore, this Court is bound to address the legal issues. 19. The facts of the case. The Appellant and respondent were married on 20.01.2002 and they were blessed with a male child named Sudharsan, born on 14.12.2002. Both are doctors, by profession. The appellant was employed in a Primary Health Centre and the Respondent was willing to pursue her higher studies at Coimbatore. 19. The facts of the case. The Appellant and respondent were married on 20.01.2002 and they were blessed with a male child named Sudharsan, born on 14.12.2002. Both are doctors, by profession. The appellant was employed in a Primary Health Centre and the Respondent was willing to pursue her higher studies at Coimbatore. The married life was not happy and they got separated. However, the child was admitted in a school, at Namakkal, where the appellant/husband was residing and remained in his custody. 20. According the respondent/wife, she was not allowed to see the child. When the matter stood thus, the appellant filed divorce petition HMOP No.25 of 2010 before Sub-Court, Rasipuram. As stated earlier, the appellant had also filed Interlocutory Application No.39 of 2010 for an order restraining the Respondent not to forcibly remove the child from his custody. 21. The Respondent filed GWOP 95 of 2010 before the Principal District Court and the petition is dated 09.07.2010. It was received on the same day as per the endorsement made by the District Court. 22. On 26.07.2010 the Respondent has also filed I.A. No. 40 of 2010 under Section 26 of the Hindu Marriage Act, 1955 seeking a direction which read as stated above. 23. Admittedly, a consent order was passed in both applications on 18.09.2010. This order was to the effect that on every second and fourth Saturday of every month the Respondent/mother can take the child to her place and hand over the child back on the following Sunday. Meanwhile, the Guardian OP Application was contested and allowed. 24. Before going in to the merits of the matter the legal issues are considered. Legal issues raised by the Appellant and the consideration are as follows: 25. Issue No. 1: While filing the GWOP under the Guardianship Act whether the respondent has truthfully complied the conditions under Section 10(g) of the Act. 26. Consideration: Section 10(g) of the Guardians and Wards Act, 1890 reads as follows: “Section 10: a. ……… ……… g. Whether an Application has at any time been made to the Court or to any other Court with respect to the Guardianship of the person or property, or both, of the minor, and, if so, when, to what Court and with what result;” 27. As required by this provision the Respondent has filed a proforma and clause (g) reads as follows: “Form of Application Furnished Under Section 10 Of The Guardian And Wards Act 1956. a) …….. g).Whether any application has at any Time been made to the court or to any Other court with respect to the Guardianship of the person or property NIL or both, of the minor and if so, when to which court and with what result.” 28. The Respondent has also given a declaration confirming the informations as given are correct. 29. The contention of the Learned Senior Counsel for the Appellant is that a false declaration has been made under Section 10(g) of the Guardianship Act. According to him, on receipt of summons for the divorce petition the respondent had rushed to the Court to file an Application under Section 26 of the Hindu Marriage Act for the custody of the child, but she has not disclosed the same under Section 10(g) when she filed custody petition under Guardianship Act. 30. While considering this aspect, this court called for the records of GWOP No.44/2010 and found the said OP was filed on 09.07.2010 and the same was received by the Court on the same day and numbered. Notice to the Respondent and also publication was ordered on 15.07.2010. 31. Therefore, when the Application under Guardianship Act was filed on 09.07.2010, the respondent has not filed the Interlocutory Application in the divorce petition and the same was filed only on 26.07.2010. Therefore, this court has to conclude that she has correctly given all the particulars under Section 10(g) of the Guardianship Act. 32. Issue No. 2: Whether the proceeding before the District Court for the custody of a minor under the Guardianship Act 1890 is simultaneous with the proceedings filed under Section 26 of the Hindu Marriages Act? 33. Issue No.3: Whether the Application filed by the Respondent under Section 25 of the Guardianship Act, is inapplicable as this provision is applicable only to the Guardian who lost custody of the Ward? 34. Issue No.4: The parties being Hindus, whether Hindu Marriage Act 1955 and Hindu Minority and Guardianship Act, 1956 have over riding effect on the Guardian and Wards Act, 1890? 35. Consideration of Issues 2 to 4: Guardian and Wards Act, 1890 consolidates and amends the law relating to Guardians and Wards in Indian. 34. Issue No.4: The parties being Hindus, whether Hindu Marriage Act 1955 and Hindu Minority and Guardianship Act, 1956 have over riding effect on the Guardian and Wards Act, 1890? 35. Consideration of Issues 2 to 4: Guardian and Wards Act, 1890 consolidates and amends the law relating to Guardians and Wards in Indian. Section 4 of the Act defines Minor as a person who has not attained the age of majority. Under this Act, Guardian means a person having the care of the person of a minor or his property or both. Sections 5 to 19 relates to appointment and declaration of Guardians, particularly, Section 7 deals with power of the Court to make order as to Guardianship which reads as follows: “7. Power of the Court to make order as to Guardianship – (i) where the Court is satisfied that it is for the welfare of a minor that an order should be made. (a) Appointing a Guardian of his person or property, or both, or (b) An order under this Section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court. (2) An order under this Section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court. (3) Where a Guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this Section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the Guardian appointed or declared as aforesaid have ceased under the provisions of this Act”. 36. Section 8 deals with person entitled to apply for order (as to Guardian) and it reads as follows: “8. Persons entitled to apply for order: An order shall not be made under the last foregoing section except on the application of (a) The person desirous of being, or claiming to be, the Guardian of the minor; or (b) Any relative or friend of the minor; or (c) The Collector of the District or other local area within which the minor ordinarily resides or in which he was property; or (d) The Collector having authority with respect to the class to which the minor belongs.” 37. Hindu Minority and Guardianship Act, 1956 deals with Minority and Guardianship among Hindus. Section 4 defines Minor who has not completed the age of 18 years. Under this Act, Guardian means a person having the care of the person of a Minor or of his property or both and includes natural guardian and other guardians. Section 2 of the Act declares that the provisions of the Act shall be in addition to and not in derogation of Guardian and Wards Act 1890. Section 6 defines as to who can be a natural guardian and it reads as follows: “6. Natural guardians of a Hindu Minor: The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are (a) In the case of a boy or an unmarried girl – the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. (b) In the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, her father; (c) In the case of a married girl – the husband Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this Section. (a) If he has ceased to be a Hindu, or (b) If he has completely and finally renounced the world becoming a hermit (vanaprastha) or an ascetic (yati or Sanyasi). Explanation: In this Section, the expressions “father” and “mother” do not include a step – father and a step-mother.” 38. Section 26 of the Hindu Marriage Act, 1955 provides for the custody of children and declares that in any proceedings under the said Act, the Court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible. 39. Out of the three enactments, the earliest Act viz., Guardians and Wards Act, 1890 originally applied to all, other then Hindus and Muslims, who were governed by their personal Laws. Post Independence saw the enactments of Hindu Marriage Act 1955, Hindu Succession Act, 1956 and HMG Act 1956. 40. 39. Out of the three enactments, the earliest Act viz., Guardians and Wards Act, 1890 originally applied to all, other then Hindus and Muslims, who were governed by their personal Laws. Post Independence saw the enactments of Hindu Marriage Act 1955, Hindu Succession Act, 1956 and HMG Act 1956. 40. Hindu Minority and Guardianship Act, 1956 is an Act relating to Minority and Guardianship among Hindus. Under Section 3 of the Act applies to any person who is a Hindu by Religion. However, Section 2 will declare that this Act is supplemental to Guardian and Wards Act, 1890 and reads as follows: “2. Act to be supplemental to Act VIII of 1890: The provisions of this Act shall be in addition to, and not, save as hereinafter expressly provided, in derogation or, the Guardians and Wards Act, 1890.” 41. Guardians and Wards Act does not speak about the Natural Guardian as it is covered under the personal law of the parties. The Chapter II of the Guardians and Wards Act, 1890 deals with appointment and declaration of Guardians by the Court having jurisdiction. 42. Section 24 under Chapter III deals about the duties of the Guardian of the person and declares that the guardian is in custody of the Ward which reads as follows: “24.Duties of Guardian of the person – A guardian of the person of a ward is charged with the custody of the Ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires.” 43. Section 25 will come into play if a ward leaves or is removed from the custody of a guardian of his person. 44. Section 4 of both the above Acts defines Minor and Guardian. Under the Guardians and Wards Act, 1890, Minor means a person who have not attained majority. Under the HMG Act, minor means a person who has not completed the age of 18 years. Under the Guardians and Wards Act, guardian means a person having the care of the person of a minor or of his property or of both his person and property. However, under the HMG Act. ““guardian” means a person having the care of the person of a minor of his property, or of both his person and property and includes. Under the Guardians and Wards Act, guardian means a person having the care of the person of a minor or of his property or of both his person and property. However, under the HMG Act. ““guardian” means a person having the care of the person of a minor of his property, or of both his person and property and includes. (i) a natural guardian; (ii) a guardian appointed by the will of the minor’s father or mother; (iii) a guardian appointed or declared by a Court, and (iv) a person empowered to act as such by or under any enactment relating to any Court of Wards; (c) “natural guardian” means any of the guardians mentioned in Section 6. 45. While the definition of Guardian in Guardians and Wards Act, 1890 is generic the definition in the HMG Act is inclusive. Therefore, in Letter and spirit, this inclusive definition is supplemental to Guardians and Wards Act as declared under Section 2 of Hindu Minority and Guardianship Act. 46. Under Section 6(a) of the Act, for a Hindu Minor, the father, and after him, the mother is the Natural Guardian. But the proviso would say that the custody of a Minor who has not completed the age of 5 years shall ordinarily be with the mother. 47. Therefore, though the father, if he is alive, is the Natural Guardian of a minor, from his birth till he completes the age of 18, the custody of such minor up to the age of 5 shall be with the mother. This provision is also supplemental to Section 24 of the Guardians and Wards Act, 1890 which enumerates that a guardian of a person of a Ward is charged with the custody of the Ward. In other words, the custody of the minor will always be with the Guardian. 48. A cursory look of the above provisions in the above Act would show that, (i) if the parties are Hindus, the father after him, the mother is the Natural Guardian of a minor. (ii) under the Guardian and Wards Act, 1890, the Court can appoint a Guardian and such persons entitled to apply shall be as enumerated under Section 8 of the Act. (iii) the Guardian shall always have the custody of the Ward. (iv) a Hindu mother shall ordinarily have the custody until the completion five years of the minor child. 49. (ii) under the Guardian and Wards Act, 1890, the Court can appoint a Guardian and such persons entitled to apply shall be as enumerated under Section 8 of the Act. (iii) the Guardian shall always have the custody of the Ward. (iv) a Hindu mother shall ordinarily have the custody until the completion five years of the minor child. 49. However, there is no provision in the Hindu Minority and Guardianship Act , 1956 akin to Section 7 of the Guardians and Wards Act, 1890, which gives the power to the Court to make order as to Guardianship as detailed above. It is also not necessary as this Act is only supplemental to the other Act by virtue of Section 2 of the Act. In Dr. Nithya Vidyaprakash v. B. Suresh Babu (supra) a Division Bench of this Court also held so. 50. Hindu Minority and Guardianship Act, 1956 has only 13 Sections. It defines a Guardian which is inclusive of four persons under Section 4(b) of the Act. It deals with the Natural Guardians of a Hindu Minor (Section 6); Natural Guardianship of adopted son (Section 7); power of Natural Guardian (Section 8); Testamentary Guardians and their powers (Section 9); (under this provision, a Hindu father who is the Natural Guardian of his minor children may appoint a Guardian in respect of the minor person or property or both. After father, the widow mother who is entitled to act as a Natural Guardian has the similar power); Sections 10 and 11 deals with incapacity of minor to act as Guardian and the de-facto guardian not to deal with the property of the minor; Section 12 deals with Guardian not to be appointed for minor’s undivided interest in the joint family property. Section 13 is an important provision which reads as follows: “Section 13 Welfare of minor to be paramount consideration : (1) In the appointment or declaration of any person as guardian of a Hindu Minor by a Court, the Welfare of a Hindu Minor by a court, the welfare of the Minor shall be the paramount consideration. (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to Guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor.” 51. (2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to Guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor.” 51. Section 13 of the Hindu Minority and Guardianship Act, 1956 is similar to Section 17 of the Guardian and Wards Act 1890, which reads as follows: “17. Matters to be considered by the Court in appointing Guardian : (1) In appointing or declaring the guardian of a minor, the court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the Minor”. 52. Therefore, Section 13 of the Hindu Minority and Guardianship Act, 1956 is also supplemental to Section 17 of Guardians and Wards Act. 53. From the above discussions, it emerges that any person desirous of being, or claiming to be the guardian of the Minor or any relative or friend of a minor or the District Collector, can file an Application under Section 7 of Guardian and Wards Act, 1890 for an Order of appointment of Guardian of a minor. 54. In the case of Hindu Minor, the Natural Guardian, Guardian appointed by the Will of the minor’s father or mother, a guardian appointed or declared by the Court and a person empowered to act as such by or under any enactment relating to any Court of Wards is not expected to file an application either to declare or appoint him for the Guardianship of a Minor. Their Powers are enumerated under the HMG Act. 55. However, both the Acts deal with the custody of a minor or a Ward as stated above. If the custody is removed either forcibly or otherwise, the guardian, appointed under Section 7 of the Act, may move the Court under Section 25 of the Guardians and Wards Act, 1890 for the return of the custody. 56. In the case of Hindu mother in whose custody a minor, who has not completed the age of 5 years shall remain, is removed either forcibly or otherwise, can also move the Court as she is entitled to such custody under Section 6 of the Hindu Minority and Guardianship Act. 56. In the case of Hindu mother in whose custody a minor, who has not completed the age of 5 years shall remain, is removed either forcibly or otherwise, can also move the Court as she is entitled to such custody under Section 6 of the Hindu Minority and Guardianship Act. Such Application shall be filed before the District Court or Family court read with Section 25 of the Guardianship Act. 57. In a case of a Hindu Minor above five years of age, whose custody shall be with the father as Natural Guardian, a mother or any other persons can not file an Application under Section 25 Guardianship Act, as they can not plead that they have lost the custody. 58. Needless to say that a Hindu father who lost custody of Minor above five years can move the Court under the same provisions. 59. Apart from these two provisions, Section 26 of the Hindu Marriages Act alone speaks about the custody of a minor child in a pending proceeding under that Act, which provides for the custody of children among other relief’s. Courts have held that such orders can be passed even after the conclusion of the main proceeding. 60. Therefore, when the father as Natural Guardian is in custody of the Minor Child, whose age is above five years, the remedy available to the mother is only under Section 26 of the Hindu Marriage Act, 1955 and not under Section 25 of the Guardianship Act. 61. However, the Mother or any other persons can file an application for Guardianship under Section 7 of the Guardianship Act. Section 13(2) of the HMG Act will come to their rescue which reads as follows: “(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor.” 62. Therefore, there is a clear distinction between seeking guardianship and thereby custody and seeking custody alone. Whether it is guardianship or custody, it is well settled that the welfare of the child is the paramount consideration and the decisions relied on by the learned Senior Counsel for the appellant lays down those principles. Therefore, there is a clear distinction between seeking guardianship and thereby custody and seeking custody alone. Whether it is guardianship or custody, it is well settled that the welfare of the child is the paramount consideration and the decisions relied on by the learned Senior Counsel for the appellant lays down those principles. The Courts have held that both Section 17 of the Guardianship Act and Section 13 of the HMG Act shall be considered. 63. In Radhika Konel Parekh v. Konel Parekh (supra) a Division Bench of this Court has dealt with a situation where a wife has filed an Application under Section 26 of the Hindu Marriage Act, for the custody of a minor child in a Divorce proceedings before the Family Court, Bombay and the husband filed a proceedings before this Court, seeking his appointment as a guardian for his minor son and for grant of interim custody. The Division Bench held that the questions involved in both the proceedings, so far as custody is concerned, are same and even wondered why, the father who is the natural guardian filed an application for appointment as guardian. 64. Section 14 of the Guardian and Wards Act, 1890 reads as follows: “Simultaneous Proceedings In Different Courts: 1. If proceedings for the appointment or declaration of a guardian of a minor are taken in more Courts than one, each of those Courts shall, on being apprised of the proceedings in the other Court or Courts, stay the proceedings before itself. 2. …….. 3. ……..” 65. This provision is applicable only when application is filed under Section 7 of the Guardianship Act. 66. In answering the above issues, this Court is of the considered view that the following factors emerge :- i) Hindu Minority and Guardianship Act, 1956 is supplemental to the Guardians and Wards Act , 1890 by virtue of Section 2 of the Hindu Minority and Guardianship Act, 1956. ii) any person desirous of being, or claiming to be the guardian of the Minor or any relative or friend of a minor or the District Collector, can file an application under Section 7 of Guardian and Wards Act, 1890 for an Order of appointment of Guardian of a minor. On such appointment, they are charged of the custody of the ward. On such appointment, they are charged of the custody of the ward. iii) If such custody is removed either forcibly or otherwise the guardian, may move the Court under Section 25 of the Guardians and Wards Act, 1890 for the return of the custody. iv) The Natural guardian appointed by the Will of the minor’s father or mother, a guardian appointed or declared by the Court and a person empowered to act as such by or under any enactment relating to any Court of Wards are not expected to file an Application either to declare or appoint him for the guardianship of a minor. Their powers are enumerated under the Hindu Minority and Guardianship Act, 1956. v) Under the Hindu Minority and Guardianship Act, 1956, the custody of a minor who has not completed the age 5 years shall be with the mother. vi) There is a clear distinction between seeking guardianship and thereby custody and seeking custody alone. vii) In the case of Hindu mother, in whose custody a minor below the age of 5 years shall remain is removed either forcibly or otherwise, can move the Court as she is entitled to such custody under Section 6 of the Hindu Minority and Guardianship Act, 1956. Such Application shall be filed before the District Court or Family Court read with Section 25 of the Guardianship Act. viii) A Hindu father who lost custody of Minor above five years can move the Court under the same provisions. ix) In a case of a Hindu Minor above five years of age, whose custody shall be with the father as Natural guardian, a mother or any other persons can not file an application under Section 25 Guardianship Act for custody alone. x) In such case, the mother or any other person can file an application for Guardianship and thereby custody under Section 7 of the Guardianship Act. Section 13(2) of the Hindu Minority and Guardianship Act, 1956 shall be considered. xi) In a pending proceedings under the Hindu Marriage Act, 1955 either of the party can seek custody under Section 26 of the Act. xii) Whether it is guardianship or custody, it is well settled that the welfare of the child shall be the paramount consideration. xiii) Simultaneous proceeding referred to under Section 14 of the Guardianship Act relates to proceedings under Section 7 of the Act. xii) Whether it is guardianship or custody, it is well settled that the welfare of the child shall be the paramount consideration. xiii) Simultaneous proceeding referred to under Section 14 of the Guardianship Act relates to proceedings under Section 7 of the Act. xiv) Neither the Hindu Minority and Guardianship Act , 1956 nor Hindu Marriage Act, 1955 has any over riding effect to the Guardianship Act, 1890. 67. Coming to the facts of the case on hand, under Section 26 of the Hindu Marriage Act, 1955 there is a consent order between the parties regarding the custody of the child. According to the learned senior counsel for the respondent, such an order is only an interim arrangement and the application under the Guardian and Wards Act, 1890 was contested between the parties as to the custody of the child. This argument cannot be countenanced as the very wording of Section 26 Hindu Marriage Act, 1955 would show that the Court has power to alter the decree and make such orders with respect to custody, maintenance and education of the child even after passing of the decree. 68. It is already held that the respondent can not seek the remedy of the custody of the Minor child above five years under Section 25 of the Guardianship Act. The reasoning of the Court below for allowing such application is also not based on the paramount consideration of the welfare of the child. Therefore, the order of the Court below is unsustainable and liable to be set aside. However, the respondent is at liberty to seek her remedy either under Section 26 of Hindu Marriage Act, 1955 or under Section 7 of Guardians and Wards Act, 1890 R/w. Section 6 and 13(2) of the Hindu Minority and Guardianship Act, 1956. 69. In the result, the Civil Miscellaneous Appeal is allowed and the decreetal order dated 29.04.2011 made in G.W.O.P. No. 44 of 2010 on the file of the Learned Principal District Judge, Namakkal is set aside. No cost. Consequently, connected M.P. is closed. Appeal allowed.