SAJEDA KHATUN Vs. MD. ABDUL KADIR

JUDGEMENT

(1.) This revisional application emanates from the order No. 18, dated 18.09.2013 passed by the Learned District Judge, Darjeeling. By the impugned order the Learned District Judge held "the order passed by this Court seems to be without jurisdiction and this being so, the said order cannot be executed by this Court."

(2.) In the interest of effective adjudication factual matrix needs to be restated. The petitioner mother has filed an application under Section 25 of Guardians and Wards Act 1890 praying for custody of her three children, who are residing with their father. The opposite party husband appeared in that case by filing written objection. But ultimately he did not pursue the said litigation and as a result an ex parte order was obtained by the present petitioner. Since the petitioner is a Mohammedan lady so the Learned Court below held that the parties to the case being muslims they would certainly be governed under Muslim law. He has categorically mentioned that a Muslim mother is entitled to the custody of her daughters until the daughters attain puberty and she is also entitled to the custody of the son until the son attains the age of 7 years. In the case in hand the daughters are yet to attain the age of puberty and the son is only 4 years old and accordingly the Learned Court below had passed an order in favour of the petitioner. In the ordering portion, the Learned Court below held "that they suit be and the same is decreed ex parte against the opposite party, but without costs. The petitioner/mother do get a decree for the custody of her children viz. (1) Sultana Afri, (2) Suhana Farin and (3) Mohammad Sohail against the opposite party. The Opposite party/father is directed to deliver the custody of those children to the petitioner within a month of this order failing which the petitioner is at liberty to recover the custody of her children in accordance with the procedure established by law."

(3.) According to the present petitioner, in spite of her best endeavour and efforts, the opposite party husband did not deliver the custody of those children to the petitioner and for which she had no option left with except to appear before the Learned District Judge, Darjeeling in terms of the decree with an application for search warrant for execution of the said decree. This time Learned District Judge opined that earlier order dated 11.04.2013 was passed beyond jurisdiction and so the decree cannot be executed by his Court.