JUDGMENT : ROBIN PHUKAN, J. Heard Ms. S.Z. Hayat, learned counsel for the appellant. Also heard Ms. S.E. Ahmed, learned counsel for the respondent. 2. In this appeal, under Section 47 of the Guardians and Wards Act, 1890, the appellant has challenged the ex-parte decree and order dated 03.10.2023, passed in Misc. (G) Case No. 8/2022, passed by the learned District Judge, Sivasagar, and the guardianship certificate, dated 09.11.2023, issued by the learned District Judge, Sivasagar. 3. For the sake of convenience and to avoid confusion, status of the parties as reflected in the petition filed before the learned District Judge, Sivasagar, is adopted herein this appeal. 4. The background facts, leading to filing of the present appeal, are briefly stated as under: “The petitioner and the respondent in Misc. (G) Case No.8/2022, are husband and wife and Mohammedan by religion and the petitioner resides at Borsilla Tea Estate, P.O.- Tiphook, District- Sivasagar and the respondent resides at VIP Road, Dharapur, Azara Home Solution, Guwahati, P.O.- Azara, District- Kamrup(M). The marriage between the petitioner and the respondent was solemnized socially on 31.12.2009, by Islamic rites and customs before the Muslim Marriage and Divorce Registrar, Sadar Kazi Dispur, Guwahati, fixing the differed dower at Rs. 1,00,001/- and thereafter, they lived together as husband and wife in the matrimonial home. They were blessed with a girl child on 21.04.2013. However, after their marriage, marital discord surfaced between them and on 12.05.2021, the respondent, his parents and his sister assaulted the petitioner and asked the petitioner to bring some cash from her maternal home, and on refusal by the petitioner, the respondent and his family members drove the petitioner out of their house, along with her daughter. And since then, the petitioner and her daughter have been staying at her maternal home at Borsilla Tea Estate. And since 12.05.2021, the respondent has not been taking care of the petitioner and her daughter, not to speak of providing them with maintenance, and on apprehension that the respondent may snatch away the minor daughter from the custody of the petitioner, she had filed a petition, being No. 1341/2022, for appointment of a guardian and custody of her minor daughter, upon which, the learned District Judge, Sivasagar ("trial Court? for short) had registered Misc. (G) Case No. 8/2022, and issued notice to the respondent. The said notice returned with a postal report "not known?. for short) had registered Misc. (G) Case No. 8/2022, and issued notice to the respondent. The said notice returned with a postal report "not known?. Thereafter, the petitioner had filed a petition No.276/2023, under Order 5 Rule 20 CPC, for publication of the notice/summon to the respondent through local daily Newspapers, by way of substituted service, and then the learned trial Court, having recorded it?s satisfaction, vide order dated 09.03.2023, that notice issued to the respondent Md. Nasibur Rohman through registered post with A/D had returned unserved with a note on the envelope as "not known?, and then hearing learned counsel for the petitioner, allowed the petition No. 276/2023, for paper publication of the summon/notice to the respondent in two local newspapers, one in English and one in vernacular, and fixed the matter on 27.04.2023. Thereafter, on 27.04.2023, the learned counsel for the petitioner had produced the original copies of the two newspapers, wherein notice to the respondent was published, i.e. the Dainik Janambhumi on 30.03.2023 and the Assam Tribune on 05.04.2023. However, the respondent remained absent and therefore, the learned trial Court decided to proceed with the matter ex-parte and accordingly, heard the matter, and vide impugned order dated 03.10.2023, had allowed the petition filed by the petitioner seeking custody of her minor daughter and appointed her as guardian. Being aggrieved, the respondent has approached this Court by filing the present appeal.” 5. Ms. Hayat, learned counsel for the appellant, drawing attention of this Court to the grounds taken in the memo of appeal, submits that the impugned ex-parte order dated 03.10.2023, was passed without following the law laid down in the CPC and the same was obtained by the respondent herein by misleading the learned trial Court, and that the appellant herein, had never received any summon by post sent by the learned trial Court, pursuant to the order dated 09.03.2023, and that the paper publication was done as a substituted mode, under Order 5 Rule 20(1A) CPC, and while passing the order dated 09.03.2023, for paper publication, the learned trial Court has failed to follow the procedure as enumerated under Order 5 Rule 20(1) CPC. Ms. Ms. Hayat also submits that the learned trial Court, before taking recourse of Order 5 Rule 20(1A) CPC, should have taken the recourse of procedure under Order 12, 15 and 17 CPC, and that the substituted service has to be resorted to as a last option, when the respondent cannot be served in the ordinary way and the Court is satisfied that there is reason to believe that the respondent is keeping out of the way for the purpose of avoiding service, or that for any other reason(s), summon cannot be served in the ordinary way, and under such circumstances, the impugned order granting guardianship certificate to the respondent herein, suffers from manifest illegality and therefore, it is contended to set aside the same. 5.1. In support of her submission, Ms. Hayat has referred to the following decisions: (i) Smt. Yallawwa vs. Smt. Shantavva , reported in (1997) 11 SCC 159 (ii) Champa vs. Rajender Kumar , reported in 2025 HHC 7541 6. Per contra, Ms. Ahmed, learned counsel for the respondent has supported the impugned order dated 03.10.2023, so passed by the learned trial Court. Ms. Ahmed submits that the impugned order suffers from no infirmity or illegality, in as much as the learned trial Court had recorded its satisfaction, in view of the postal report upon the notice issued to the appellant herein, which returned with a report "not known?, and thereafter, on the petition filed by the respondent herein, the learned trial Court had allowed the same to effect service of notice upon the appellant herein by substituted mode. Ms. Ahmed further submits that in respect of custody of children, the Court has to consider the welfare of the children, and the child being a girl child and the petitioner/respondent herein, being the mother and natural guardian, the learned trial Court had rightly granted the guardianship certificate, and therefore, it is contended to dismiss this appeal. 6.1. In support of her submission, Ms. Ahmed has referred to the following decisions: (i) Gaurav Nagpal vs. Sumedha Nagpal , reported in (2009) 1 SCC 42 (ii) Vivek Singh vs. Romani Singh , reported in (2017) 3 SCC 231 7. 6.1. In support of her submission, Ms. Ahmed has referred to the following decisions: (i) Gaurav Nagpal vs. Sumedha Nagpal , reported in (2009) 1 SCC 42 (ii) Vivek Singh vs. Romani Singh , reported in (2017) 3 SCC 231 7. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the memo of appeal and the grounds mentioned therein, and also perused the impugned order dated 03.10.2023, and also gone through the decisions referred by learned counsel for both the parties. 8. I have also gone through the relevant provision of law i.e. Order 5 Rule 20(1) CPC, which reads as under: “ 20. Substituted service. — (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. 8.1. Order 5 Rule 20(1A) CPC, reads as under: “ (1A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. 8.2. Order 5 Rule 20(2) and Rule 20(3), read as under: “ (2) Effect of substituted service. — Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. (3) Where service substituted, time for appearance to be fixed. — Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require. 9. — Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. (3) Where service substituted, time for appearance to be fixed. — Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require. 9. It is to be noted here that in the case of Yallawwa (supra) Hon?ble Supreme Court has held that the trial court should not grant automatically an application for substituted service without taking steps for serving the respondent by ordinary procedure as laid down by Order V Rules 12, 15 and 17 CPC. It is also held that it must be kept in view that substituted service has to be resorted as the last resort when the defendant cannot be served in the ordinary way and the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way. 10. In the instant case, the petition was filed in the Court of learned District Judge, Sivasagar, within whose jurisdiction the respondent is residing and the appellant herein is residing in Kamrup(M) district. That being so, the contention of Ms. Hayat, learned counsel for the appellant that before resorting to service of notice by substituted mode, the procedure laid down under Order 5 Rule 12, 15 and 17 CPC, ought to have been complied with, left this Court unimpressed, since the appellant is residing in Kamrup(M) district and notice was sent to him by registered post with A/D pursuant to the order dated 21.11.2022, and on 12.01.2023, and the said notice returned unserved with a report "not known? on the envelope. Only thereafter, the learned trial Court, vide order dated 12.01.2023, had directed to take fresh steps upon the appellant herein through registered post with A/D and fixed the matter on 09.03.2023. on the envelope. Only thereafter, the learned trial Court, vide order dated 12.01.2023, had directed to take fresh steps upon the appellant herein through registered post with A/D and fixed the matter on 09.03.2023. Thereafter, on 09.03.2023, the respondent herein had filed a petition No. 276/2023, under Order 5 Rule 20 CPC, for paper publication and the learned trial Court, after hearing learned counsel for the respondent herein and also taking note of the fact that notice issued to the appellant herein through registered post with A/D had returned without being served, with a note on the envelope "not known?, had allowed the petition. It is well settled that under Rule 20 of Order 5 substituted service can be utilised when the Court is satisfied that the summon cannot be served upon the other party in usual manner. Notably, in spite of notice being served by way of paper publication, the appellant herein had failed to turn up to contest the petition, and thereafter, the learned trial Court proceeded to hear the matter ex-parte and passed the impugned order. 11. In view of the given facts and circumstances and in view of the fact that the appellant resides in Kamrup(M) district i.e. in a district far away from Sivasagar district, and also in view of the postal report that the appellant is not known, this Court is of the view that the learned trial Court had rightly recorded satisfaction to that effect and allowed the petition for paper publication. 12. Moreover, the child is a girl child and given in the custody of the respondent herein being her mother. It is well settled in the case of Gaurav Nagpal (supra) in determining the question as to who should be given custody of a minor child, the paramount consideration is the “welfare of the child” and not rights of the parents under a statute for the time being in force. The same principle is reiterated in the case of Vivek Singh (supra) also. 13. Thus, on this count also the impugned order dated 03.10.2023, suffers from no infirmity or illegality requiring any interference of this Court. 14. In the result, I find no merit in this appeal and accordingly, the same stands dismissed. The same principle is reiterated in the case of Vivek Singh (supra) also. 13. Thus, on this count also the impugned order dated 03.10.2023, suffers from no infirmity or illegality requiring any interference of this Court. 14. In the result, I find no merit in this appeal and accordingly, the same stands dismissed. However, before parting with the record, this Court has noticed that after the ex-parte order being passed, the appellant herein ought to have approached the learned trial Court under Order 9 Rule 13 CPC for vacating the ex-parte order. However, the appellant herein had not taken recourse to the same, instead, directly filed the present appeal. 15. Under such circumstances, while dismissing this appeal, liberty is granted to the appellant/respondent to prefer an application, before the learned trial Court, under Order 9 Rule 13 CPC, and in the event of such petition being filed, the learned trial Court shall consider condonation of delay in filing such petition by excluding the period of pendency of the present appeal before this Court, in view of the provision of Section 14 of the LIMITATION ACT , 1963. 16. In terms of above, this appeal stands disposed of. 17. Registry shall send back the TCR forthwith.