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.

(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