SALAMAT ALI Vs. MAJJO BEGUM

JUDGEMENT

(1.) These two first appeals have arisen from proceedings under the Guardians and Wards Act, 1890. F.A.F.O. No. 131 of 1983 arises from the application made by appellant Salamat Ali under S.7 of the Act while F.A.F.O. No. 130 arises from an application made by the respondent Smt. Majjo Begum under S.25 of the Act. The dispute in both the applications pertained to minor Afaq Alam who is the grandson of Salamat Ali, and son of Smt. Majjo Begum. The age of the minor is about four years. In this application under S.7 appellant Salamat Ali prayed for being appointed guardian of the person and property of the minor while in her application Smt. Majjo Begum claimed custody of the minor who is admittedly staying with appellant Salamat Ali.

(2.) In the application made by Smt. Majjo Begum, Salamat Ali filed a detailed written statement. Through this written statement he made serious allegations against Smt. Majjo Begum on the basis of which he contended that she was not a fit person to have the custody of the minor. On the facts stated by him it was sought to be contended that the welfare of the minor would be jeopardised if he was placed in the custody of Majjo Begum. The learned district Judge, on a consideration of the personal law by which the parties were governed, came to the conclusion that since the age of the minor was less than seven years, Majjo Begum was entitled to the custody of the minor. He did not afford opportunity to the parties to lead evidence on the question of welfare of the minor. This order has been assailed by the learned counsel for Salamat Ali. He has submitted that the order of the learned district Judge is violative of S.13 of the Act whereunder it was incumbent upon the learned district Judge of fix a date and give opportunity to the parties to adduce evidence on their respective pleas. The learned counsel submitted that the personal law is to be applied consistently with the provisions of the Guardians and Wards Act, 1890. According to the submission of the learned counsel, in view of the provisions contained in the Guardians and Wards Act the welfare of the minor was of paramount importance and the Court below committed manifest error when it did not allow the appellant an opportunity to show that the welfare of the minor lay in his staying with the grand-father than in staying with his mother.

(3.) The above submissions of the learned counsel for Salamat Ali have been controverted by Sri S. Mirza learned counsel for Smt. Majjo Begum. According to the learned counsel the minor was of such a tender age that it could be safely presumed that his welfare lay in staying with his mother. In support of his submission that opportunity for oral evidence was not required to be given in every case, learned counsel relied upon :