ABUL KALAM Vs. AKHTARI BIBI

JUDGEMENT

(1.) This appeal is directed against the order of the Additional District Judge, Cuttack, directing that the minor child be kept in custody of his mother (Respondent) till he completes the age of seven years whereafter the father will have the custody of the child. When the case was listed for admission, respondent entered appearance and bearing in mind the question of law involved, the matter was heard and is being disposed of at the admission stage.

(2.) The mother, respondent filed the application purporting to be one under S.25 of the Guardians and Wards Act claiming custody of her minor son and for a direction to the father to give the child in her custody. The parties are Mohamedans and are governed by Hanafi School of Mohamedan Law. The respondent married the appellant in June, 1983 according to Mohamedan custom and out of their wedlock, a son was born namely, Abdul Salam. He was two years old on the date of the application and now would be three years. The appellant divorced his wife and thereafter the respondent was driven to her house but the father, appellant forcibly kept the son with him. It was alleged that the appellant lives away at Calcutta and the minor son is in his native village. It was prayed that in the interest of the child, the custody should be given to the mother for proper upbringing of the child. The husband, the present appellant filed objection before the District Judge. Though in the said objection he admitted to have married the respondent and out of their wedlock the son Abdul Salam was born, he, however, took a stand that his wife (respondent) is a lady of lose morals and has absolutely no means to sustain the child and, therefore, it is in the interest of the child, the father should be permitted to have the custody of the child

(3.) The District Judge on consideration of the legal position regarding the guardianship of a minor child came to the conclusion that welfare of the child is of paramount consideration and for a child of two to three years, undoubtedly the mother would be the proper person to have the custody of the child and accordingly he directed that the custody of the child should be given to the mother till the child completes the age of seven years whereafter the father may get the custody of the son.