AINUNNISA Vs. MUKHTAR AHMAD

JUDGEMENT

(1.) THIS appeal is directed against the order of the District Judge allowing an application under Section 25 of the Guardians and Wards Act of 1890. The respondent No. 1, Mukhtar Ahmad, claiming to be the real father of a male minor named, Mphd. Yusuf, sought for the return of his custody as the guardian of the said minor.

(2.) THE brief facts are these: The appellant, Smt. Ainun Nisa, is the daughter of the respondent no. 2, Mohd. Munir. The appellant was married to the respondent No. 1, Mukhtar Ahmad. In 1962 she was divorced by her said husband and after that divorce the latter remarried another woman from whom he has several children. Smt. Ainun Nisa also remarried one Sheikh Bhullan. There is a minor son of Smt. Ainun Nisa whose name, according to Mukhtar Ahmed, respondent No. 1, is Mohd. Yusuf but according to Smt. Ainun Nisa, the appellant, and Mohd. Munir, the respondent No. 2. his name is Ghani, Mukhtar Ahmad claimed that the said son of Smt. Ainun Nisa was begotten by him. However, the lady denies this allegation and says that the said son is from her second marriage with Sheikh Bhullan and his real name is Ghani and not Mohd. Yusuf as alleged by Mukhtar Ahmad. In fact, Ainun Nisa has denied that she ever lived with Mukhtar Ahmad as husband and wife and, therefore, there was no question of any issue being begotten by Mukhtar Ahmad. It has been further pleaded by the lady and by her father, Mohd. Munir, that in any case, the welfare of the said minor demands that he should continue to reside with his mother and should not be transferred to the custody of Mukhtar Ahmad who has a second wife with him and from whom he has several children. The District Judge, before whom the application under Section 25 was made has held that the minor in question is the son of Smt. Ainun Nisa from Mukhtar Ahmad and not from her second marriage with Sheikh Bhullan. The trial Court reached the said conclusion on the basis of its examination of the oral and documentary evidence. So far as the documentary evidence is concerned, the trial Court has placed its principal reliance upon a notice dated 19-7-1962 which was allegedly issued by Smt. Ainun Nisa to Mukhtar Ahmad applicant. In this notice, there is a statement to the effect that she had gone to her Maika along with her son. The trial Court has said that the document in question had been duly proved on behalf of the respondent No. 1. Mukhtar Ahmad. I do not think that the said finding is correct. The notice dated 19th July, 1962, has not been exhibited. No one has proved the handwriting of the said notice. Mukhtar Ahmad appeared as A. W. 4 and he has only said:

(3.) EVEN though I have said that it is not necessary for me to examine the merits of the finding recorded by the trial Court to the effect that the minor is the son of Mukhtar Ahmad, still, I can draw attention to one aspect of the matter. The said finding is at least debatable and it cannot be said to be an impossibility that factually the finding may not be a correct one. There is at least an off chance that the reality in question may be different from the finding of fact recorded by the court below. The mere fact that there may be such a possibility is sufficient to be taken into consideration in disturbing the custody of the boy. It will be a frightening thing if a person, who is really not the father, succeeds in getting the custody of the minor particularly when the minor is admittedly in the custody of the real mother and has been in such custody since his birth.