Honble ARORA, J. – This appeal is directed against the judgment dated 5-11-92 , passed by the learned Judge, Family Court, Udaipur, by which the learned Judge of the Family Court dismissed the application under Section 25 of the Guardian and Wards Act, 1890, filed by the husband-appellant and refused to deliver the custody of the child to him from the custody of the mother - respondent.

(2) Appellant Prakash Chandra Jain, on 28-1-89 , filed an application under Section 25 of the Guardian and Wards Act, 1890, in the Court of the District Judge, Udaipur , for the custody of his son Sumeet alias Kshitiz, who is living with his mother Smt. Chandrawati Jain. It is stated in the application that appe- llant Prakash Chandra Jain was married with Smt. Chandrawati on 6-2-82 at Udaipur and out of this wed-lock, the son Sumeet alias Kshitiz was born on 20-9-83. The non-applicant Chandrawati, in the month of November, 1985, alongwith her son Sumeet, went to her parents house and since then she is living with her parents alongwith her son Sumeet. It was, also averred that the appellant-applicant is the natural guardian of Sumeet as per the law and the welfare of the boy is in living with the father as the mother is not taking proper care of the boy and, therefore, his custody should be given to the applicant - father. The wife Smt. Chandrawati filed reply to the application on 15-7-89, refuted all the allegations made against her in the application and stated that the welfare of the child is in living with the mother and the applicant has neglected the child for the last so many years and, therefore, he is not entitled for the custody of Sumeet alias Kshitiz. The applicant, in support of his case, examined himself as AW 1 and produced in his evidence his father Shanti Lal as AW 2 and friend and neighbour Bharat Kumar as AW 3 whereas the wife (non-applicant) examined herself as NAW 1 and produced in her evidence Rakesh Gaur as NAW 2 and her mother Smt. Vidhyawati Gandhi as NAW 3.

(3) The learned Judge of the Family Court, Udaipur , after trial, came to the conclusion that (i) the applicant , though the natural guardian, has fallen out with the mother and was living separately for about seven-eight years without taking any care in the affairs of the minor who was in the keeping and care of the mother and the father should, therefore , be treated if in non-existence and the mother should be treated as the natural guardian of the minor ; (ii) the boy is in the custody of the mother and she has not disentitled herself for the custody of the child; (iii) the desire of the minor is to live with his mother, and dismissed the application under Section 25 of the Guardian and Wards Act filed by the appellant-applicant vide its judgment dated 5-11-92. It is against this judgment dated 5-11-92 passed by the learned Judge of the Family Court, Udaipur, that the appellant-husband has preferred this civil miscellaneous appeal.

(4) It is contended by the learned counsel for the appellant that (i) under the Hindu Minority and Guardians Act, the natural guardian of the minor boy upto the age of five years is his mother and thereafter his father and in these circumstances the appellant could not have file application for the custody of the child before the child attains the age of five years and, therefore, there was no question of any negligence on the part of the appellant in taking care of his minor son Sumeet alias Kshitiz as he was living with his mother Chandrawati who had left the house of the appellant without any sufficient cause; (ii) the approach of the learned Judge of the Family Court that the mother has not disentitled herself for the custody of the child, is not proper because it is the father who is the natural guardian and, therefore, he is entitled for the custody of the minor unless he has disentitled himself; (iii) the desire of the minor for the custody can be a valid consideration if the minor is of matured intellects and perform an intellig

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