JUDGMENT - V.A. MOHTA, J.:---Between the father and the mother to whom custody of minor child of tender age should be given is the usual but delicate question to be determined in this appeal.

2. Cruz Fernandes, the Respondent-husband, was married to palmira, the Appellant-wife on 2nd of February, 1986. They belong to Christian religion and were married as per Christian rites. Child Ian is the offspring of that marriage, born on 6th November, 1986. Marriage, unfortunately, was caught in rough weather. Even since 11th December, 1990, the husband and wife are living separately.

3. Palmira filed a petition under section 25 of the Guardians Wards Act, 1890 (the Act) for custody of Ian on 7th February, 1991 before the Family Court, Bombay. By order dated 9th July, 1991 the Family Court granted to her only the access to the child but not the custody. She has appealed.

4. Basic facts are :

Palmira is a Commerce Graduate serving in Punjab National Bank, receiving pay packet of Rs. 3,000/- per month after all deductions including towards repayment of loan for a flat at Virar, Bombay. Presently, she is living with her parents and unmarried brother in a small room in Bazar Road, Bandra, Bombay. Cruz Fernandes is S.S.C., serving in M/s. Varun Shipping Company as a Chief Steward and his duties regularly take him to long voyages. Once on ship he does not return to Bombay for six months or even more. He lived separately with Palmira but after they parted company he lives with his widowed mother and sisters at Borivli, Bombay. His monthly pay packet is Rs. 5,000/-. Ian is taking education in Senior K.G. Class in Don Bosco High School at Borivli. It is a famous school. Ian is equally attached to the father, the mother and the grand mother.

5. The Family Court refused custody to the mother on the grounds that : (i) father is the natural guardian and is not unift for custody, (ii) child is also attached to his grandmother, (iii) mother is a working woman and hence has to remain away from the house during duty hours, and (iv) mother is living in a congested locality in a small non airy room where even the tailoring business is carried on by her father.

6. Having heard parties at considerable length, we are unable to uphold the impugned order and so also the approach adopted by the Trial Court, for the reasons that follow.

7. What the Trial Court has missed totally is the tender age of the child and the importance of mother's lap, love and care in rearing up such a child. Paramount consideration for custody of a child is his welfare and not rights of parties or guardians. Welfare of a child particularly when he is of tender age cannot be measured in terms of money and physical comforts only. "Welfare" is a multi faceted phenomenon which includes several factors-physical as well as emotional. Father is no doubt the natural guardian of the child but custody and guardianship are not wholly identical concepts. Often arise cases where it is not proper to give custody of the child taking into considerations the demands of welfare of a child at a given point of time. Custody, by its nature, is a temporary phenomenon and can vary from time to time.

8. Cruz Fernandes is no doubt not disqualified to act as a natural guardian but most of the times he is out of home for months together. The child is, therefore, de facto in the custody of grandmother. In substance, the choice therefore is to be made between the grandmother and the mother.

In this context, we may notice the following observation of this Court in the case of (Saraswatibai Shripad Ved v. Shripad Vasanji Ved)1, A.I.R. 1941 Bombay 103. (Para 3)

"The modern view of Judges in England is that it is impossible, in the case of a young child, to find any adequate substitute for the love and care of the natural mother. If the natural mother is a suitable person, the Courts in England will as a general rule hand over the custody of a child of tender years to the mother. The mother's position is regarded as of mu

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