MARINA PUSHON Versus DERICK NOEL PUSHONG

This judgment will dispose of F. A. Os. Nos. 129 and 130 of 1973, as common questions of law and facts are involved therein.

2. The contest is between the father and mother regarding the custody of two minor children‑one a female namely, Brenda Pushong and the other a male Christopher Pushong by name. These two children were born on 8‑10‑1965 and 3‑12‑1966 respectively. It is admitted that the parties were married on the 9th day of April 1965, at St. Anthony's Church, Lahore. They lived as husband and wife till the 17th day of July 1970, when the ,..( appellant left the house of ,the respondent and took up residence at 4‑A/2, Habibullah Road, Off Davis Road, Lahore. She took the two minor children with her.

3. On the 12th January 1972, an application under section 25 of the Guardians and Wards Act was instituted by the respondent. In the application he alleged that the appellant had left his house at the instigation of Mr. Hughie Fitz Patrick and repeated attempts by him to secure her return and performance of duties by her as a wife, had failed. It is further averred that under the Christian Law he being he natural guardian of the minors, is entitled to their custody. In paragraph No. 7 of the plaint, it is stated that the respondent had great sentimental attachment for his wife and the children and had applied to the Government of Canada for Immigration, for the welfare of all of them. He had all along been attempting to convince the appellant that the migration of the family to Canada would be beneficial to all of them but unfortunately he had no positive response from her. It is further alleged that "she is residing with Mr. Hughie‑Fitz Patrick in a locality not befitting the status of the petitioner and his children. The environments are not conducive to healthy thinking and the minors are not being properly looked after. The environments of the minors are likely to corrupt their morals and this fact has been a source of constant agony for the peti?tioner.

4. In the written statement it is alleged that after the marriage the respondent who was incapable of affording a separate house, took the appellant to the house of his parents at 35‑Shalemar Road, Lahore. That house was over‑crowded at that time as besides the respondent's parents, his 5 other brothers and 4 sisters were also living there. The appellant regularly paid every month out of her own salary as fixed amount, and at times more than that, to the respondent's parents, on account of her boarding and lodging. This amount was increased on the birth of each child. It is also alleged that the respondent's brothers and sisters started leaving the Country and settling abroad. When only one sister and one brother of the respondent were left in the house, they started bringing in undesirable boys and girls and virtually converted the house to a gambling and drinking den. The respondent himself is a person of extremely loose character having no sense of responsibility towards his wife and children and frequently indulges.

In gambling and drinking late at nights. He freely associates and moves in the society of women of ill‑repute and the appellant had positive proof that he committed sexual intercourse with at least one of them. Certain allegations of physical cruelty are also levelled against‑the respondent. It is averred that it was after such an incident on 17‑7‑1970 that the respondent forced the appellant to leave the house of his parents along with the minors who were miserably frightened. The appellant's brother came to her rescue and she is now living alongwith the minors in a ,separate independent house on Habibullah Road‑Off Davis Road, Lahore. According to her Mr. Hughie Fitz Patrick is a thorough gentleman and her next door neighbour. ? is denied that this gentleman had anything to do with the present state of affairs. It is further denied that the respondent ever paid anything towards maintenance of the appellant or the minors. Paragraph No. 8 of the application was denied except to the extent that the respondent was planning to migrate to Canada all by himself. It is added that the respondent is a semi‑literate person with no educational or technical qualifications. It was due to the effort of the appellant that the respondent got his present employ?ment in U.S.I.S. Lahore at a monthly salary of Rs. 500. It is also urged that the house at Habibullah Road is in the most coveted and best locality in Lahore and is also close to Jesus and Mary School and Queens Mary School for girls.

5. The appellant also submitted an application under section 8 read with section 10 of the Guardians and Wards Act for her appointment as a guardian of the minors, on the 13th March 1972 This was contested by the respondent. It appears that on account of the allegation of loose character levelled by the appellant against the respondent in her written statement filed in the proceedings under section 25 of the Act, he in his reply to the application for appointment as guardian now launched a similar attack against the appellant and alleged that the parties were leading a happy married life when Mr. Hughie Fitz Patrick, a stranger entered the life of the appellant. His immoral advances towards the appellant were duly encouraged and responded by her and on protest by the respondent she quietly left the house of the respondent along with the. minors and started living with this gentleman.

6. Both these applications were consolidated on the 22nd April 1972, and the following issues were framed :‑

Whether it is for the welfare of the minors that the custody be restored' to the petitioner?

Whether the respondent is a fit person to be appointed a guardian of the person of the minors ?

(3) Relief.

The learned Guardian Judge found issue No. 1 in favour of the respondent and answered ‑issue No. 2 against the appellant. Accordingly, by order dated the 30th May 1973, he dismissed the application of the appellant and allowing the application of the respondent directed the custody of the minors to be banded over to him. He dismissed the allegation of the appellant about loose character and misbehaviour of the respondent as "no more than the product of fertile imagination". He was impressed by‑ the evidence of P. W. 1, who is real brother of the appellant and observed that he had no reason to go all out to contradict his sister on every material point or to defame his family by indirectly attributing rather undesirable the of his sister with Mr., Hughie Fitz Patrick,

6. ? As will be seen later, the observations of the learned trial Court about P. W. 1 are based on misreading of his evidence.

7. Bryn Game (P. W. 1) stated that he had lived with the respondent's family for some time when he was not employed. The appellant had never complained to him about the respondent. He gave a good character to the respondent and stated that he had never beaten the appellant in his presence nor he heard of it. He stated that he was maintaining the appellant and the children. He further stated that he (witness) had been living with the appellant for 4 months in May 1970, when she left her husband. It was his fault that the appellant left her husband because it was for the benefit of the children to live in a separate spacious house along with the father but there was no other reason. He had suggested the shifting of the parties from the residence of the respondent because of shortage of accommodation. He further added that the appellant left the house on his suggestion and it was due to Mr. Fitz Patrick that she had come back to her husband. She is living in her own house where Mr. Hughie Fitz Patrick is also living. He further added that the children did not look well but they were well treated by the appellant. At the end, he stated that it would be for the welfare of the minors that they should stay with their parents. In cross‑examination he stated that the appellant was drawing a salary of Rs. 1200 per month. He did not know the educational qualifications of the respondent. He knew the plan of the parties about immigration.

8. It will be clear from this evidence that while on the one hand P. W. 1 has made a statement in favour of the respondent regarding his character and his behaviour towards the appellant, on the other hand he has not said a single word from which any inference may be drawn about some immoral relationship between the appellant and Mr. Hughie Fitz Patrick. He has given a lie to the assertion of the respondent that it was due to this man that the appellant had left his house or did not return to him. This witness took the responsibility of separating the parties. Regarding the welfare also he did not make a statement in favour of either of the parties. Both of them had affections towards their children and according to him it was in the interest of the minors that they should remain with the parents. I do not understand how the learned trial Court has read anything against one party or the other in the evidence of this witness.

9. P. W. 2, Mr. Charless Gray, stated that he did not know what prompted the appellant to leave the house of her husband and to live with Mr. Hughie Fitz Patrick. He stated that there was nothing positive about any immoral relations between the appellant and Mr. Hughie Fitz Patrick. He only stated that his impression is that she is living in adultery.

This statement does not furnish any evidence of the appellant's character. It is based upon surmises only. It appears, however, from his cross‑examination that he is a neighbour of the respondent and lives in the same house. He also admitted that the respondent had been living in this house along with his brothers and sisters. He further admitted that he had never gone to the house of the appellant at. Habibullah Road, Lahore. Except for a general statement about the welfare of the minors being in living with the parents his statement is not at all helpful to the respondent.

P. W. 3, Syed Nazar Hussain, gave a good character to the respondent. He also stated that his behaviour towards the appellant was always proper and there was no quarrel. He did not know where the appellant is putting up these days. He also made a general statement about the welfare of the minors in their custody being restored to the respondent.

P. W. 4, Ala‑ud‑Din is another neighbour of the respondent. He stated that he was not a gambler, drunkard or womanizer. He also did not know where the appellant was putting up these days.

P. W. 3 supported his case and stated that the appellant was living with Mr. Hughie Fitz Patrick in adultery. She had been sending the minors to him on week‑ends till January 1972, but thereafter she refused to send the children. However, she had been meeting him at lunch as their offices are adjacent. She had been informing him about the condition of the children and demanding maintenance. He had been paying money to her and also purchasing the clothes for the children. He had also been meeting the minors, in schools and had been satisfying their needs. He further stated that the appellant was prompted by Mr. Hughie Fitz Patrick, in sending the children to him on week‑ends. He stated that the children are living in a slum area of Lahore where they are in poor condition and it was for their welfare to live with him. At the end he stated that he was willing to bring the appellant to his house on any condition. His salary is Rs. 550 per month.

In cross‑examination, he was confronted with the improvements made in his written‑statement regarding the allegations against Mr. Hughie Fitz Patrick. He stated that he could not bring an application for divorce on the ground of appellant's relationship with Mr. Hughie Fitz Patrick and this is the reason why he was condoning the adulterous life of the appellant. He admitted that he was not a qualified Matriculate ; but stated that he was an Electric Welder. He had taken training and had no Diploma about his qualification. He stated that he had paid the admission fee of the minors but be bad given the receipt to his wife. He admitted that Habibullah Road is Off Davis Road and the residence of the appellant is 300 yards away from Queens Marry School. He further stated that the appellant is living ht about 200 yards from Davis Road which is surrounded by buffaloes.

10. R. W. 1, A. K. Baker, is a witness of the employment of the appellant as Commercial Assistant to the Commercial Officer of the American Consulate General Office, Lahore and her salary of Rs. 12915 per year. He stated the reputation of the appellant in the office is excellent.

R. W. 2, Manshi Ata Ullah, is the Munshi, who collects rents for the properties of Habit Ullah Khan Tiwana, of which the appellant is a tenant. He stated that she is residing in a separate house and has no connection with the house of Mr. Hughie Fitz Patrick which is adjacent to it. He stated that she is leading a pious life and enjoys good reputation in that locality. He stated in cross‑examination that he did not know whether the quarter was hired by Mr. Hughie Fitz Patrick. He denied that on the road side there are buffalo yards. He had not seen Patrick seeing the appellant.

R. W. 3, Kabul Shah, is the neighbour of the appellant at Habibullah Road. He also stated that Mr. Hugbie Fitz Patrick lives in the adjacent quarter, with his entire family. He had never heard anything bad about the appellant.

R. W. 4, T. W. Knowles is a pickles seller. He stated that he did not find anything wrong with the appellant's character. He further stated that the respondent was not a fit person to be a guardian of the person of the minors. He alleged that he used to go to the house of the respondent to drink and play cards. In the cross‑examination, he stated that Mr. Hughie Fitz Patrick is living next door to the appellant. The house in which the appellant is living was taken on rent by her brother Mr. Bryns. He did not remember how many years back he visited the house of the respondent far drinking and playing cards. He admitted that he had been coming with the appellant on the previous dates of hearing also.

The appellant herself appeared as R. W. 5 and denied the accusations brought against her by the respondent. In cross‑examination she admitted that she wrote the respondent two letters demanding money from him and he sent the money to her twice. She also admitted that the respondent had been going to school to see the children but added that it was merely to harass her. She further stated that she was not ready to go to the house of the respondent. She admitted that when she first typed the form for Canada, she was willing to go to that Country with the respondent. She stated that it was incorrect that she left the house of her husband at the instance of Mr. Hughie Fitz Patrick or she rented the present premises at his instance or that he visited her house very often. According to her he visited her house with his family occasionally.

11. As regards the immoral character of the respondent, there is absolutely no evidence. The evidence produced by the respondent on the other hand against the appellant not only does not establish any allegations of adultery against her but it is apparent from the conduct of the respondent at different stages that this allegation has been brought in order to put pressure upon the appellant or to wreak vengeance upon her for the allegation of loose character brought by her against him. The allegation of the appellant living in adultery with Mr. Hughie Fitz Patrick is not there in the petition under section 25 of the Guardians and Wards Act. It was only when the appellant made certain wild allegations against him that the respondent came out with the plea that the appellant was living in adultery. The plea is clearly an afterthought. The evidence of P. W. 1 establishes beyond any shadow of doubt that he was instrumental in separating the appellant from the respondent and in arranging the new residence for her. There is nothing in his statement to show that tae appellant is a woman of questionable character or has any intimacy with Mr. Hughie Fitz Patrick. P. W. 2 levelled such an allegation but it is apparent that what he stated was merely a surmise. I am, therefore, of the view that it is not proved that either of the two parties had any stigma on their moral character.

12. The question of custody has to be determined only on consideration of the welfare and interest of the minors. This is the predominant considera?tion according to the authorities cited by both the parties as well as according to the principles of section 17 of the Guardians and Wards Act. Section 17 provides :‑

"Matters to be considered by the Court fn appointing guardian.‑(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section; he guided by what, consistently with the law to which the minor is subject, appears in the circumstance: to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character And capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

(4) As between parents who are European British subjects adversely claiming the guardianship of the person, neither parent is entitled to it as of right, but other things being equal, if the minor is a male of tender years or a female, the minor should be given to the mother, and if the minor is a male of an age to require education and preparation for labour and business, then the father.

(5) The Court shall not appoint or declare any person to be a guardian against his will."

The principles underlying this section are as follows :‑

(a) The paramount consideration is the welfare of the minor.

(b) This welfare must be judged consistently with the law to which the minor is subject.

(c) While determining the welfare of the minor regard shall be had inter alia, to the‑

(i) age, sex, religion of the minor ; and ???????????????????????????????????????????????????????????????????????

(ii) character and capacity of the proposed guardian.

(d) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

(e) As between parents who are European British subjects adversely claiming the custody of the minor, the mother is to be preferred in case of a male of tender years or females. Preference should be given to father if the male is of an age to require education and preparation for labour and business.

It is not denied that Christians have no personal law governing the law] of custody of minors. Regarding guardianship among Christians, the learned counsel for the respondent relied upon 'A Manual of Laws for Christians' by P. N. Joshua, and `Laws Applicable to Christians' by Paul Appasamy. P. N. Joshua writes at page 30 of his book that natural guardian of the minor is a father or a mother. In Appasamy's book at page 110 the rule is described as follows :‑

"The natural guardian for a minor under (Hindu, Mohammadan) or Christian Law is normally the father and failing the father, the mother."

In Waghela Rajsanii v. Shiekh Masludin and others 11 Bom. 551 (P C), ‑it was held by the Privy Council in another context that "the matter must be decided by equity and good conscience, generally interpreted to mean the rule of English Law if found applicable to Indian society and circumstances. The Calcutta High Court laid down in In re : Lovejoy Pallett I L R 2 Cal. 554, that "the High Court in exercising the jurisdiction under clause 17 of Letters Patent of 1865 should follow the principles of Court of Chancery in England without ignoring principles of Guardians and Wards Act".

Turning to the principles of Court of Chancery it would be found that they are not different from the criteria laid down in section 17 of the Guardians and Wards Act. There also in cases of custody the welfare and happiness of the infant is the paramount consideration, to which all others yield Mark T. Mackee v. Evelyn Mackee 1951 A C 352, Official Solicitor v. K. and another 1963 All E R 191, (H. L.) J. and another v. C. and others (1969) 1 All E R 788, Allen v. Allen 1948 2 All E R 413, Re: O. (an Infant) (1964) 1 All E R 786 (C A), Re : C. (A) (an Infant) C. v. C. (1970) 1 All E R 309, R. v. H. & C. (1969) 1 All E R 262 (263), Halsbury's Laws of England, 3rd Edn., Volume XXI, para. 428 (at p. 193). In J. and another v. C. and others foster parents living in England were preferred to parents of the infant who were residing in Spain to which Country they belonged, on the ground that the infant and P. were close friends, the infant had become very English in his ways and the infant's prospects in life would be substantially better if he remained in U. K. than if he were returned to Spain. It was also held that there were inherent dangers to the infant's attempting to adjust to life in Spain since his parents would be unable to cope with the problems of adjustment and consequential mal?adjustment and suffering. This order was upheld by the Court of Appeal and House of Lords on the ground that the Judge had applied the right principles in the exercise of his discretion. In Official Solicitor v. K. and another certain confidential reports were lodged with the Chancery Division by the Official Solicitor as the guardian ad litem of the minor. The mother insisted that she was entitled to the disclosure of the reports. This was not acceded to by the Court. The Court of Appeal was of the opinion that disclosure must be made even if it is harmful to the infant. It was held by the House off Lords that interested parties to wardship proceedings, even parents of the children concerned have no absolute right to see confidential reports that have been lodged with the Chancery Division by the Official Solicitor, as the guardian ad litem of the children for since the welfare of the infants (rather than arbitrament between interested parties) is the paramount consideration and purpose of the jurisdiction, disclosure of such reports must remain a matter for the Court's discretion, although the occasions when a Judge will decide against disclosure on the ground that the welfare of the infant outweighs the principle that a case should not be decided on information that a party has not seen and cannot challenge, will be rare.

Regarding the preference of one parent over the other, the rule laid down in Halsbury's Laws of England, 3rd Edition, Volume XXI, at page 194, in para. 429 is that "other things being equal it is preferable that a child o tender years should be with its mother. Re: Written (1887) 57 L T 336 has been referred to in the notes for the principle that custody may be given to the mother without limit of age. In Re: F. (an Infant) (1969) ; All E R 766 it was held that as a general rule it is better for small children and especially little girls, to be brought up by their mother; and this, of course is a consideration of great importance. In W. v. W. & C. (1868) 3 All E R (C A), it was held that it is a general principle, in question of custody, that it is better for a boy of eight years of age, other things being equal, to be with his father rather than his mother, even if he has been with his mother up to that age. But this was a case where the mother was divorced on account of adultery. In a later case Re: C. (A) (an Infant) C. v. C. it was found that there is no principle in custody cases that a boy of eight should, other things being equal, be with his father in all cases the paramount consideration is the welfare of the infant and the Court must look at the whole background of the infant's life and on the circumstances of the case.

The principle of preference of either parents, with reference to its historical background, has been summed up in the Family Law by Bromley at page 277

"Common sense dictates that normally the mother should have the care and control of young and sickly children (particularly little girls). (Re: F (1969) 2 All E R 766 (69). In recent years Courts have tended to take the view that other things being equal, it may be better for an older boy to have the influence of his father."

There is a note to the following effect on the same page

"But there is no principle to this effect. Re: C. (A.) (1970) All E R 309 (C. A.)"

It is also stated that "it is generally desirable to keep brothers and sisters together and not to split the family up more than is necessary".

The principle of preference is, therefore, in line with the provisions in section 17 of the Guardians and Wards Act about European British subjects. h A male infant also should remain in the custody of the mother for so long as he does not require education and prepare for labour and business he may not be required. It may be noticed that under section 17 (4) the male must be of an age to require not only 'education' but also 'preparation for labour and business'. This will naturally exclude requirement of elementary educa?tion. It is only when he requires education which may . prepare him for 'labour and business' that he might be required to be given in the custody of the father. The age of eight years may not, therefore, be considered to be crucial in all cases. It appears that while fixing this age the Judges of the superior Courts in England have been influenced by the principle of Hizanat of male child up to the age of seven years being vested in the mother among a section of the Muslims, notwithstanding the fact that the father is a natural guardian of the minor. In regard to a female child the right of Hizanat vests in the mother till the infant reaches age of puberty. Section 17(4)1 requires that the right of control of a female child should preferably be given to the mother without any limitation of age. While considering the welfare of the minor a number of factors are to be taken into account. I have already considered this question from the point of view of age and sex. Next comes the character and capacity of the parents. In Re: F. (an Infant) (1969) 2 All E R 767 it was held that although in wardship proceedings the welfare of the infant is by virtue of the Guardianship of Infants Act, 1925, section 1, the first and paramount consideration "paramount" does not mean "exclusive", and the Court should consider and weigh all the circumstances that are of any relevance, giving the welfare of the infant special weight. Nevertheless this process cannot be analysed or carried out according to any formula, and must depend on the exercise of a judicial discretion after all relevant factors have been considered. The accommoda?tion which the contestants can provide, the approval of the ward, the child's need for its parents have always been considered as relevant circumstances. The material well‑being of the child and his or her better upbringing is dependent upon the financial resources and standard of living of the proposed guardian and they have to be taken into consideration.

It was held in Re: L. (Infants) (1962) 3 All E R 1, that where that mother had by her conduct broken up the matrimonial home that was a matter to be taken ? into account. In H. v. H. & C. (1969) 1 All E R 262, Salmon, L. J. said t

"I do not myself think that, whether this marriage broke up because of the fault of the father or of the mother or of both of them, is of any consequence whatsoever."

It was held in Re: F. (an Infant) that this statement by Salmon, L. J. could not displace the authority of in Re: L. (Infants). All the same a distinction was drawn between 'welfare of the minor' as such and 'the character and behaviour of the parties.' It was, therefore, observed that the responsibility for break up of the marriage throws light on the character and behaviour of parties and thus assists the Court in assessing their probable behaviour as parents in the future. * It was also held that if the mother is responsible for the break up the probability of the parents being reconciled by giving custody to the father, is a relevant consideration.

13. Now in the present case the minors have been in the custody o the mother for some time and she had looked after their educational carreer. The minors are being educated in a very good institution. It is further established that the mother is earning a salary of more than a thousand rupees per month while the respondent is earning only Rs. 550 per month. She has an exclusive accommodation for the family in a very good locality of the provincial metropolis. Even if all other things are assumed to be equal, not only it will be justifiable to give the custody of these small children on the principle that the custody of infants should be with their mother but also for the advancement of their material swell‑being. In the present case the scales definitely tilt in favour of the mother.

The learned counsel for the respondent argued on the basis of Appasammy's statement of law in his book 'Law Applicable to Christians' that natural guardian of a minor is usually the father and failing him the mother. But this does not deal with actual custody of the child and is not at all helpful. He also relied upon the principle of common law as described in the Family Law by Bromley (page 268) that :

"At common law the father was entitled to the custody of his legitimate children until they reached the age of 21 . . . . . . . .After his death, the mother was entitled to the custody of her minor children for nurture, but even this right was superseded after 1660 if the father appointed a testamentary guardian under the provisions of the Tenures Abolition Act. Common Law accorded no other right to the mother as such, and so absolute against her were the father's rights that he could lawfully claim from her the possession even of a child at the breast."

This Court has to decide this case not on the basis of common law of England but on the principles of the Guardians and Wards Act and failing any assistance from them on the basis of equity and good conscience for which the principles of Chancery may provide guidance. Moreover the learned Author has clarified at pages 267 and 268 that he had used the word 'custody' in its wide sense to connote the whole bundle of rights and powers vested to a parent or guardian while for conveying the narrow sense he has used the words 'care and control' or 'possession.'

The learned counsel then argued that the mother was responsible for breaking up the family and on the principles laid down in Re: F. (an Infants) (1969) 2 All E R 766; and Re: L. (an Infant) (1962) 3 All E R, this circum?stance should. be considered relevant for determining the question of welfare of the minor. I have already dealt with this question in detail and, have noticed the distinction drawn in Re: F. (an Infant) between welfare of the minor as such and character or behaviour of the contending parties. In the present case, however, this principle is not helpful to the respondent. There is no satisfactory evidence to saddle either party with the responsibility of breaking up the marriage. The case of the respondent is that the appellant separated because of her infatuation for Mr. Patrick. The appellant on the other hand has made allegations not only against the respondent's character but also of his neglect of wife arid children, of the house being overcrowded and of the appellant virtually paying for her own as well as children's boarding and lodging. But both parties failed to prove these allegations except the allegation that the accommodation of the respondent was not congenial and it appears from the statement of P. W. 1 that for this reason he had shifted the appellant to the present house. On the other hand it appears that the appellant is not prepared to live with the respondent at any cost. It cannot be held on the present record that handing over of custody of the minor to the father will be helpful in bringing round the parties to a compromise. Under orders of the Court the children are now living with the respondent for several months but this had hardly any effect on the appellant to end her resolution to remain separated from the respondent.

14. The learned counsel for the respondent referred to the conduct of the appellant in making uncalled for allegations against the respondent. In this, however, both the parties tried to surpass each other. They are equally guilty of that conduct and as such that conduct cannot be taken into consideration for resolving the question of character or behaviour.

15. It is not necessary to pass any order of appointment of the appellant as a guardian of the person of the minors. The application of the appellant for that relief is barred by section 19 of the Guardians and Wards Act which provides that in the presence of the father no other guardian can be appointed unless the Court is of the opinion that the father is unfit to be a guardian The father is not proved to bb unfit. The present case is not covered by the exception.

As a result of the above discussion I am of the view that issue No, 1 should be decided in favour of the appellant and issue No. 2 against her.

16. I, therefore, dismiss her appeal against the order passed on applica?tion under sections 8 and 10 of the Guardians and Wards Act, I, however, allow her appeal against the order passed on the respondent's application under section 25 of the above Act and dismiss the application of the respondent.

I may, however, clarify that this order will not interfere, in any way, with the right of visitation of the respondent to meet his children. The children will be sent to the respondent on week‑ends as has been done previously, for so long as the respondent resides in the same place (city) where the minors are actually residing.

The parties shall bear their own costs.

K. B. A. ???????????????????????????????????????????????????????????????????????????????????????????????? Appeal partly accepted.