KHURSHID GAUHAR Vs. SIDDIQUNNISA

JUDGEMENT

(1.) This revision is directed against an order dt. Oct. 4, 1985 allowing an application filed by the mother for the interim custody of a minor child, a son aged about 3 years at the time of making of the application, having been born on Jan. 12, 1982. The said application was filed in an application filed by the mother of the child under S.25 of the Guardians and Wards Act for an order for the return of the child from the custody of the applicant who is his father.

(2.) The relevant facts are that the applicant and the opposite party were married on May 11,1980 and on Jan. 12,1982, a son (the child in question) was born to them. On July 20, 1985 the applicant divorced the opposite party and it is alleged that he turned out the opposite party from the marital home and took the child from her custody and entrusted him to the care of his second wife. Thereafter on July 26,1985 the opposite party filed an application under the Guardians and Wards Act stating the aforesaid facts and praying that she be appointed the guardian of the child and be given the custody of the child so that he may be reared and taken care of properly. A few days later the mother filed an application under S. 12 of the said Act for the interim custody of the child. In this application it was alleged that her husband has forcibly snatched the child from her and has turned her out of the house. She has only one child whereas her husband has five children from his second wife. She has grave apprehension that the step-mother of the child, namely, the second wife of the applicant who has five children of her own, would grossly ill-treat the child. The child is already living under fear and there is even grave danger to the life of the child. The applicant has not been allowed to meet the child and if the interim custody of the child is not immediately granted, the poor and innocent child would be exposed to grave risk of life. The application for interim custody was contested by the applicant who filed a written objection in which it was alleged that the mother was a woman of loose character. She has no house and means to support the child. She is a school teacher and would have no time to look after the child. It was further pleaded that the applicant was the natural guardian of the minor and hence he could not be deprived of the custody of the child.

(3.) Both the parties filed affidavit in support of their respective allegations. The Court below has, on a consideration of the material on record, recorded a finding that in the interest of the child the interim custody must be granted to the mother and made a direction to that effect. While allowing this application the Court below also observed that if, at any time, the applicant found that the child was not being properly maintained by his mother he may move an application for the recall of the order. It also fixed Nov. 1, 1985 for evidence observing that in the interest of justice the case should be decided at the earliest. The parties had exchanged their pleadings and only evidence and argument remained to be adduced and heard. The Court below has referred to the authorities relevant to the issues arising for consideration and thereafter applies the principles emerging therefrom to the facts of the present case. It has concluded that there are valid grounds for believing the case of the applicant that the child would not be looked after properly by the step-mother who has five children of her own from the applicant. It has further observed that in view of the settled legal position that a mother governed by the Mohammedan Law is entitled to the custody of her male child until he has completed the age of seven years and further in view of the facts mentioned above the interest of the minor which is of paramount consideration in such cases clearly demanded that the wife be allowed the interim custody of the child.