JUDGMENT Raghubir Dash, J. 1. This appeal is against the order dated 20.07.2013 passed by the learned Civil Judge (Senior Division), Baripada in Guardianship Misc. Case No. 97 of 2012 allowing the same and directing the Appellant No. 1-mother to deliver the custody of the minor son, namely, Omm @ Rituraj Parida to Respondent-father. Appellant Nos. 2 and 3 are parents of Appellant No. 1. 2. On a petition filed by the minor's father under Section 25 of the Guardian and Wards Act, 1890 (for short, the Act), the Guardianship Misc. Case was registered. There is no dispute that the minor was born on 06.01.2007 out of the wedlock of the Respondent and Appellant No. 1. When the child was about 5-6 months old, the mother joined in the S.C.B. Medical College, Cuttack to undergo nursing course leaving the child in her matrimonial home. In course of time, serious differences arose between the husband and wife leading to some legal proceedings. The wife lodged F.I.R. against her husband and in-laws which was registered as Betonati P.S. Case No. 133 of 2011. When the husband and in-laws were arrested by the police, there was no one in the family to take custody of the child. So, it was given to the mother on 23.10.2011. After the husband was bailed out, he filed the application seeking return of the child to his custody. The mother objected to it. 3. The parties adduced evidence in the court of learned Civil Judge. The court after assessing the evidence available on record passed the impugned order directing the mother to deliver the custody of the minor in favour of the father after three months of the order observing that during the intervening period the father and the paternal grandmother of the child would pay visits to the house of the mother to mix with the child for the purpose of developing acquaintance with the child to which the mother should extend full cooperation. 4. The impugned order is challenged, mainly on the following grounds: (a) Considering the education, profession, income and place of posting of the mother in juxtaposition to that of the father it would be better for the welfare of the child if the mother is allowed to retain the custody of the child. 4. The impugned order is challenged, mainly on the following grounds: (a) Considering the education, profession, income and place of posting of the mother in juxtaposition to that of the father it would be better for the welfare of the child if the mother is allowed to retain the custody of the child. (b) During the last about two and a half years the child and the mother have developed a strong emotional bonding and the minor is being properly looked after by the mother keeping the child in healthy condition who is admitted in a very good English Medium School, whereas during this period neither the child's father nor his relatives have shown any concern about the welfare of the child. (c) Learned trial court has failed to record the intelligent preference of the minor as required under the statute. (d) Since the child is in the custody of the mother, provision of Section-25 of the Act is not maintainable in view of the fact that the mother is also a lawful custodian of the child. 5. Respondent-husband has filed his counter denying all the assertions made by the Appellants to emphasizes their stand that in the facts and circumstances of the case the mother should be preferred to the father. It is further contended that when there is no prima facie case showing that the father is either unfit or disqualified to keep the custody of the minor the impugned order is not liable to be interfered with. That apart, it is not shown by the mother-Appellant that during the period the child was in the custody of the father, before he was handed over to the mother, proper care of the child was not being taken by the father and his relatives. Therefore, it is submitted, the custody of the minor has been rightly restored to the father. 6. Learned Civil Judge has taken the following facts and circumstances into consideration before making a decision to handover the custody of the child to the father: (a) The contents of Ext. 1, admittedly, written by the mother proves existence of mother's physical relationship with one Satyajit Das. That apart, the mother had also expressed her desire to quit her matrimonial home further stating therein that the father was the best person to take care of the minor. 1, admittedly, written by the mother proves existence of mother's physical relationship with one Satyajit Das. That apart, the mother had also expressed her desire to quit her matrimonial home further stating therein that the father was the best person to take care of the minor. (b) The mother is a career oriented lady who, for her career, did not mind staying away from the child when the latter was just six months old and left the infant in her matrimonial home to pursue her nursing course. (c) Save and except the mother of the child, there is no other grown-up person living with the mother to take care of the child when the mother remains absent in the house to attend her duty, whereas in the child's paternal home there are several grown up persons to take care of the child during absence of the father. 7. On behalf of the Appellants it is argued that merely on the basis of Ext. 1 learned Civil Judge should not have concluded that the Appellant No. 1 (minor's mother) was having illicit relationship with one Satyajit Das who is none other than Appellant No. 1's Mousa (mother's sister's husband). With regard to the mother's prosecuting nursing course leaving the child in her matrimonial home it is submitted that the arrangement was made with the consent of her husband and in-laws. As regards the non-availability of other grownup persons to take care of the child during the temporary absence of the mother it is submitted that ever since the child is in the custody of the mother she has been taking proper care of not only the child whose custody is under consideration but also their second son and there are materials to show that the first child, namely, Omm @ Rituraj Parida is doing very well in his study and whenever necessity arises the mother makes arrangement for proper care of the children during her absence. 8. At the outset the question of maintainability of the petition under Section-25 of the Act is to be answered. In support of this contention, learned counsel for the Appellants has cited a decision reported in AIR 1989 Calcutta 165 (Raj Kumar Gupta v. Barbara Gupta. 8. At the outset the question of maintainability of the petition under Section-25 of the Act is to be answered. In support of this contention, learned counsel for the Appellants has cited a decision reported in AIR 1989 Calcutta 165 (Raj Kumar Gupta v. Barbara Gupta. In that case, just like in the present case, the husband filed an application under Section 25 of the Act against his wife for return of their minor daughter to his custody. The child was taken away from his lawful custody by the wife. At the time of making an application under Section 25 of the Act, the child was aged about 2 ½ years. Taking the provision of Section-6(a) of the Hindu Minority and Guardianship Act read with Section-25 of the Act, it was observed in the reported case that since under Section-6(a) of the Hindu Minority and Guardianship Act, custody of the child below 5 years was lawful with the mother and not with the father, there could not be a case of removal of the ward from the custody of the father even if the mother took the child with her from her matrimonial home and for that reason the petition under Section-25 of the Act alleging removal of a ward from the custody of its guardian was liable to be rejected. The court proceeded to further observe that by the time the appeal was heard in the High Court, the child had already completed 5 years of age and for that reason the appeal should not be dismissed and it should be disposed of on the basis that the child having completed 5 years of age the mother has no longer any preferential right to its custody under the Hindu Minority and Guardianship Act. In the reported case it was further observed that detention of a minor by mother, who has no right of custody against the wish of the father who has such right amounts to 'removal of the child' from the custody of the father within the minor of Section-25(1) of the Act. 9. In the case at hand, the minor, whose custody is under consideration, was below 5 years of age when the application under Section-25(1) of the Act was filed by the father. The minor was more than 5 years old when the learned lower court passed the order. 9. In the case at hand, the minor, whose custody is under consideration, was below 5 years of age when the application under Section-25(1) of the Act was filed by the father. The minor was more than 5 years old when the learned lower court passed the order. The change of circumstance that has taken place after the institution of the Guardianship Misc. Case must be taken into account. If under the changed circumstance the relief, otherwise awardable as on the date of the institution of the misc. case would become inappropriate, can be suitably moulded in order to save the parties from a fresh litigation. Therefore, the objection as to the maintainability of the application under Section-25 of the Act becomes insignificant. Apart from this, in Radha @ Parimala Vrs. N. Rangappa, 2004 AIR Kar. 299 relied on by the learned counsel for the Respondent, a petition under Section 25of the Act, under similar fact situation, is held to be maintainable. 10. Now, let it be examined as to whether the wishes of the minor is essential in the facts and circumstances of this case. There is no dispute that when the child was aged about 4 1/2 years old his custody was given to the mother and for last about 2 1/2 years he has been staying with his mother. Now, he has completed the age of 7. At this tender age, it cannot be said that he has attained the age of discretion. For that reason his wishes do not demand serious consideration because, it is quite natural on his part to have an inclination towards her mother for the reason that for last 2 1/2 years he has been in the custody of his mother. Chances of influencing his mind by the mother before he is produced before the court for the purpose of taking his wishes cannot be ruled out. In fact, the child was produced before this Court on 10.01.2014 and, though there was interaction with the child, it is not placed on record as to what were his wishes. Presumably, it was considered not useful. Under such circumstances, it is not considered necessary to insist on the personal appearance of the child to know what his desire is. 11. Presumably, it was considered not useful. Under such circumstances, it is not considered necessary to insist on the personal appearance of the child to know what his desire is. 11. As regards the contention that in the meanwhile the minor has developed a strong emotional bonding with his mother and if at this stage he is separated from her it will have adverse effect on the minor, it may be stated that it does not appeal to the conscience of this Court. The mother herself is mostly responsible for creating such a situation. The minor was in the care and custody of the father and it was only after filing of a criminal case by the mother, not only against the father but also against her in-laws, in which all of them were arrested, the custody was given to the mother. Till then the mother had shown no concern about the minor. Though the child is now with the mother in the event his custody is shifted to the father the minor would be definitely in the company of his own father and paternal grandmother. It is quite natural that within a very short period he would be able to adjust with them. Further contention made on behalf of the Appellant is that in the custody of the mother the child is getting good education and that during the past 2 1/2 years neither the father nor his relatives have shown any concern about the welfare of the child. There is no doubt that the minor is admitted in one English Medium School at Cuttack and he is doing well in his studies. It may also be presumed that the child is being properly brought up in the custody of his mother. But there is no reason to entertain any doubt that he would get at least the same treatment and care in case he is allowed to live with his father. Now, some other stands taken by the parties showing each other's positive/negative aspects may be compared. 12. It is on record that though both the parents of the minor are in service, the father's income is much more than that of the mother. Now, some other stands taken by the parties showing each other's positive/negative aspects may be compared. 12. It is on record that though both the parents of the minor are in service, the father's income is much more than that of the mother. That apart, there is no evidence that the mother has any other of his near relations to take care of the child when she remains out of home to attend her duty, whereas the father is living with his mother who can give company to the minor when the father stays away from home. Another aspect that needs consideration is that the mother is now taking care of her two minor sons. If the elder son is given to the custody of the father the burden on the mother would lessen and she could give more attention to the younger son. It must be kept in mind that she has filed an application claiming maintenance from her husband for herself so also for the minor in question, taking the stand that her income is not sufficient to maintain both of them. When the father is ready and willing to keep the elder son with him, he should be allowed to do so instead of asking him to pay money for the minor's maintenance, unless it is shown that the welfare of the minor in the custody of his father would be at stake. 13. It is argued that in his show-cause filed in the proceeding under Section 125 of the Cr.P.C., the father has taken the stand that he being presently out of employment has no income to pay maintenance. But on behalf of the Respondent it is argued that on 07.01.2012 the Respondent has got appointment in a renowned pharmaceutical firm, i.e., Magnet Labs Pvt. Ltd. (a Mankind group of company). In this regard, a copy of letter of appointment has been made Annexure-D/1 to his counter to the appeal memo. That apart, it is shown that the father-Respondent has got his own house in Balasore Town wherein there are number of good educational institutions. 14. In the written note of submission filed by the Respondent it is mentioned that Ext. 22 to 27 and Ext. 36, marked before the learned Civil Judge in the Guardianship Misc. Case, are fixed deposit certificates amounting to rupees twelve lakhs and all are in the name of the minor. 14. In the written note of submission filed by the Respondent it is mentioned that Ext. 22 to 27 and Ext. 36, marked before the learned Civil Judge in the Guardianship Misc. Case, are fixed deposit certificates amounting to rupees twelve lakhs and all are in the name of the minor. The impugned order reflects that fixed deposits in several accounts are there but those are in the name of the Respondent's mother, who is a retired health worker. 15. On behalf of the Appellants it is submitted that the mother being a trained staff nurse, she would be in a better position to take care of the minor's health. But, it is on record that the Respondent's mother is also a retired health worker. That apart, for taking care of a minor the services of a trained nurse is seldom required. In case the child develops any health problem, a good doctor has to be consulted. It is submitted that medical facilities of high standard is available at Cuttack. But, it is not contended that good medical facilities are not available in Balasore. It is submitted by the learned counsel for the Appellant that the mother being a science graduate is able to give proper guidance in the matter of the minor's studies. But, the father is also claimed to be a science graduate. 16. Under Section-6 of the Hindu Minority and Guardianship Act, the custody of the child, who is above five years must be with the father unless he has disentitled himself. However, the minor's welfare overrides the rights of the father for the custody of the minor. But in that case it must be shown that the father is unfit to keep the custody of the child for reasons like gross ill-treatment or cruelty towards the child, habitual drunkenness, immoral character which may tend to corrupt the child and like things. Similarly, when the child is in the custody of the mother, such personality traits of the mother can also be taken into consideration to find out whether it would be in the interest of the welfare of the child to allow the mother to retain the custody. 17. Under Section-17 of the Act, the character and capacity of the guardian, amongst other things, are to be taken into consideration while deciding what would be for the welfare of the minor. 18. 17. Under Section-17 of the Act, the character and capacity of the guardian, amongst other things, are to be taken into consideration while deciding what would be for the welfare of the minor. 18. In this regard it may be noted that the wife makes allegations against the husband that he has got a concubine and he is going to marry her but there is no reliable evidence in support of such accusation. The husband, on the other hand, has alleged that the wife is leading an immoral life which she had admitted in writing vide Ext. 1. The wife admits to have written Ext. 1 in her own handwriting but takes the plea that it has been obtained from her by use of force. 19. In this regard it is stated in the memo of appeal that Ext. 1, the letter dated 12.10.2010 though discloses that the wife has admitted to have had physical relationship with one Satyajit Das it relates to her pre-marriage period and not to any instance after her marriage. In the memo of appeal it is contended that there is nothing in Ext. 1 suggesting that the wife is still leading an adulterous life. Perusal of the copy of the said letter (Annexure-A/1 series) annexed to the respondent's counter reflects that the wife had maintained physical relationship with one Satyajit Das and she wanted to marry him even though she was having one little son (Omm). It implies that after her marriage the wife had kept physical relationship with Satyajit Das. Thus, the husband has proved that the minor's mother does not possess good character. That apart, she has expressed her incapacity to maintain the minor out of her own income. She had earlier shown her lack of interest in the minor by leaving him in her matrimonial home for about four years to prosecute her nursing course and there is no evidence to the effect that from the date she left the minor in the custody of her husband till the child was given to her custody she had ever paid visit to her matrimonial home. For all these reasons, even if it is found that in other fields both the father and the mother of the child stand in equal footing to have the custody of the child, the father should be preferred to the mother. For all these reasons, even if it is found that in other fields both the father and the mother of the child stand in equal footing to have the custody of the child, the father should be preferred to the mother. Learned lower court has rightly allowed the father's application to take over custody of the minor. 20. While allowing the application the learned lower court has directed that the custody of the minor be delivered to the father after three months of the impugned order and that in the intervening period the father and grandmother of the minor should be allowed to visit the mother's place of residence to give scope to the child to develop acquaintance with them. It is alleged that the father had made attempts to meet the child but the mother did not cooperate. 21. Considering the strained relationship between the husband and wife along with the present age of the minor, the aforestated arrangement made by the learned lower court does not appear to be conducive and useful. The order should have immediate effect. 22. In the result, the appeal stands dismissed and the impugned order directing the minor to be returned to the custody of his father is confirmed but the rider that the minor be delivered after three months of the order is set aside. The Appellant-mother is directed to handover the custody of the minor to the Respondent. Since the Appellant-mother has not disclosed her Cuttack address though she is serving in S.C.B. Medical College & Hospital, Cuttack and the minor is reading in a school at Cuttack, it is directed that the mother with the child on one hand and the father on the other shall appear before the I.I.C., Mangalabag Police Station in between 9.00 A.M. to 9.30 A.M. on 14.04.2014 and the minor be handed over to the father in presence of the police officer who is in-charge of the police station at the relevant time. In case the Appellants do not co-operate in the implementation of this order, then on the approach of the Respondent, necessary police help be rendered to him to get the custody of the minor, Rituraj Parida (Omm), who is said to be a student of St. Xavier's High School, Barabati Stadium, Cuttack.