MOHAMMAD SHAFI Vs. SHAMIN BANOO

JUDGEMENT

(1.) This first -appeal is against the judgment and order passed by the Assistant Judge, Akola in Misc. Civil Application No. 57 of 1976 declaring and appointing petitioner as the guardian of minors Mohamed Races and Waheeda Begum, and also directing the return of the minors to the guardian declared by his orders.

(2.) An application for appointment of herself as guardian and for the custody or returning the minors to her custody was filed by Shamin Banoo against her husband Mohomed Shafi under Ss. 7 and 25 of the Guardians and Wards Act. She alleged therein that she was married to Mohomed Shafi and bore three children from respondent Moho-" med Shafi, namely, Mohomed Races whose age was given as 4 years, Waheeda Begum, whose age was given as 21/2 years and Farooque who was aged 11/2 years at the time when this application was presented. She then stated that she was given very cruel treatment by the respondent who wanted to marry another woman and drove her out, and at that time snatched Mohomed Raees and Waheeda Begum from her. Farooque was then only a month old and was allowed to be re- rained with her. She, therefore, filed this application for custody or return of the custody of the minors to herself, namely, Mohomed Raees and Waheeda Begum and for appointment of herself as the guardian under Section 7. She also stated in the application that the respondent has married Sajjidabegum after the petitioner was driven away and that the respondent and his newly married wife are living together along with the minors who were, according to her, treated cruelly by the wile, step-mother and the respondent.

(3.) The respondent filed his written statement to this application arid denied that the petitioner was driven away and was treated cruelly. He claimed that he was the natural father of the minor children whose ages were not disputed and was, therefore, entitled to their custody. He contended that the petitioner was divorced by him on 7th Nov., 1975 and that she was a woman of suspicious character and had connections with others and used to leave the house of the respondent at night in the company of somebody secretly; that she has left him with a view to carry on her affair with her boy friend. In these circumstances and also under the personal law to which the parties belong, namely, Mahomedan Law, he claimed that he was entitled to the custody of the children and was the proper and legal guardian of the minors. It is his claim that the application is motivated by the proceedings which she has commenced under Section 125 of the Code of Criminal Procedure against him. He did not deny that he has married a third time, but denied that either the minors were given cruel treatment by him or his new wife. Lastly, he contended that the minors are being properly looked after and that the petitioner who is staying with her father has no means of income as also her parents which could be sufficient to bring-up these minor children; that they would be practically starving whereas the respondent has sufficient earnings of his own; that there are other members in his family who come to him and look after his children by the petitioner.