MOHD YUNUS Vs. SHAMSHAD BANO

JUDGEMENT

(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 Afghan. 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--51/2 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 cliildren. 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 Section 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 husband's 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 sufffer greatly as the appellant was not in a position to look alter the children properly. The court below has dismissed the appellant's 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 appellant's son who stated that he will prefer to remain with the mother.