In determining the custody of minor children, the paramount consideration is their welfare, subject to the personal law applicable to the parties. The court has the discretion to direct the return of a ward to the custody of a guardian in appropriate cases where it thinks that such a direction is necessary for the well-being of the ward.

( 1 ) THIS appeal has been filed by the father against an order dated August 28, 1980 passed by the learned II Additional district and Sessions Judge, Saharanpur rejecting his application under Section 25 of the Guardians and Wards Act for the custody of two minor children; a daughter and a son of the appellant.

( 2 ) THE appellant was married to the respondent Smt. Shamshad Bano and from this marriage two children were born, a son named Arshad and a daughter named Afshan. The appellant and the respondent were divorced as borne out by the evidence which seems to be of unimpeachable character. In the year 1978 the appellant moved an application for the custody of these two children on the assertion that he as guardian of these two children was entitled to their custody, his wife had left 5-5 1/2 years ago on the pretext that she was going to attend a marriage in her family and on that pretext she had taken with her all her ornaments and other things as well as the two children. The attempts of the appellant to bring back the children to his house having failed and as the children were not getting proper education, it was necessary in their interest that they be given in his custody. An application to this effect was filed under Sec. 25 of the aforesaid Act.

( 3 ) THE application was contested by the mother. She asserted that she had not left on the ground alleged by the appellant but because she was ill-treated, beaten up and turned out of her husbands home. She further said that the two children were receiving the best education and were being very well looked after by her. On the contrary, if they are handed over to the appellant, the children will suffer greatly as the appellant was not in a position to look after the children properly. The court below has dismissed the appellants petition on the ground that for the welfare of the children, it is necessary that they be left with the mother. In passing this order, the Court below also ascertained the wishes of the appellants son who stated that he will prefer to remain with the mother.

( 4 ) AGGRIEVED by the aforesaid order the father has filed this appeal. For the appellant it is urged that the court below has not correctly understood the true legal position and has ignored the personal law, namely, Mohammedan Law, which was applicable to the case, in disposing of the appellants petition.

( 5 ) HAVING heard the learned counsel for the parties at some length, I find no merit in this appeal. The legal position as seems to emerge from the various authorities cited at the Bar, seems to be that in disposing of an application under the Guardians and Wards Act the predominant consideration is the welfare of the child whose custody is claimed by rival parents. Of course, in doing so the personal law applicable to the parties cannot altogether be ignored. Subject to the personal law the paramount consideration in considering an application under S. 25 of the Guardians and Wards Act seems to be well-being of the child.

( 6 ) SEVERAL decisions have been cited by both the parties. In my opinion, however, the law has been ably summed up in a decision of this Court reported in 1969 All LJ 799 Sultan Ahmad v. Smt. Sabira Bibi. After referring to several decisions of this Court and of the Privy Council, this Court observed thus : -"a careful analysis of the personal law relating to guardianship, Sec. 17 of the Guardians and Wards Act and the relevant authorities thereon appear to lead to the following conclusions : 1. The Court while deciding the question of guardianship of a minor must, as far as possible, do so consistently with the personal law to which the minor is subject, 2. Where the dictates of personal law indicate one course of action and considerations of the welfare of the minor indicate another, the former must be subordinated to the latter. The words that furnish a key to the correct legal position are to be found in Sec. 17 of the Guardians and Wards Act. Princ