AKBAL AHMAD Vs. JAMILA KHATOON

JUDGEMENT

(1.) Heard learned Counsel for the appellant and perused the record. Perhaps one of the most crucial issues that comes up after getting a divorce is the matter of child custody, so is in the instant case where the appellant has approached this Court assailing the judgment and order dated 20.08.2015 passed by the learned Principal Judge, Family Court, Ambedkar Nagar in Case No.4 of 2014 (Akbal Ahmad Vs. Jamila Khatoon and another), under Sec. 7/25 of the Guardians and Wards Act, 1890, when the claim of the appellant for custody of his minor children has been refused.

(2.) The Guardians and Wards Act, 1890, is the enactment that regulates and governs the law relating to appointment and declaration of guardians; duties, rights and liabilities of guardians and all laws relating to the Guardian and Ward. As per Sec. 4 of the Guardians and Wards Act, 1890 a minor is a person who, under the provisions of the Indian Majority Act is deemed not to have attained the age of majority. As it is well known that the age of majority for a person in India has been defined under Sec. 3 of the Indian Majority Act, 1875 stipulates "that every person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before". Thus on the face of it an inference is drawn that all persons are considered minors if he or she has not attained the age of 18 years. Further the Honourable High Court of Delhi while dealing with a habeas corpus petition in Mohammad Nihal Vs. State (decided on 8th July, 2008) has taken the aid of Sec. 2 of the Muslim Personal Law (Shariat) Application Act, 1937 which states that, regarding matters pertaining to succession, inheritance, marriage, divorce, guardianship, etc, where the parties are Muslims, the Muslim Personal Law (Shariat) shall be applicable. The Honourable Court has held that, "if some doubt prevails pertaining to the applicability of Shariat laws in guardianship matters, it stands clarified by virtue of Sec. 6 of the G & W Act. When a court is called upon to determine the welfare of a minor so far as appointment of a guardian is concerned, this exercise will have to be determined in consonance with Shariat Law". The Honourable Court further reiterated that in consonance with Sec. 2 of the Majority Act which states that its provisions do not impact on matters of marriage, dower, divorce and adoption, the Indian Majority act cannot be looked into while ascertaining the age of a minor and the personal law of the parties would be the driving factor.

(3.) Under the Hanafi law in the absence, or on the disqualification, of the mother, the custody of the child-until, being a male, he has attained the age of seven years, or being a female, she has attained puberty-belongs to (1) the mother's mother;(2) the father's mother(3) the mother's grandmother how high-soever (4) the father's grandmother how high soever (5) the full sister and (6) the uterine sister. It may be clarified that a mother is the de facto guardian. She cannot execute a waqf on behalf of the minor as she has no right to alienate minor's property unless appointed as a guardian by Court. To begin with, one has to bear in mind that there are two types of guardianship over a minor: -