MST. RUBEENA Vs. AB. QAYOOM MALIK

JUDGEMENT

(1.) Whether a mother is competent to maintain an application under Section 25 of the Guardians and Wards Act 1977 Svt for return of ward(s) to her custody, is the short controversy involved in this petition.

(2.) The Appellant, mother of Master Naveed aged 4= years and Ms. Aiman aged below three years, approached the Court of Learned Ist. Additional District Judge, Srinagar with an application under Section 25 of the Guardians and Wards Act, 1977 Svt. (hereinafter called the Act) for the return of Master Naveed and Miss Aiman to her custody on the ground that they were removed from her custody by their father/Respondent herein and she was better placed to take care of her wards as compared to Respondent.

(3.) The Appellant's case before the Learned Trial Judge was that the wards were removed by the Respondent from her custody on 8.11.2009 and were thereafter in custody of the Respondent. The Appellant in her application, after tracing the history of marital discord, insisted that the Appellant under Muslim Shariat Law governing the parties in the matter of Guardianship, had a right to have custody of her male child till he attains the age of seven years and the female child till she attains the age of puberty and thus, the Appellant had a right to ask for return of her children to her custody. The Appellant insisted that as her son was four years of age and daughter was only of 2= years of age, the Appellant's right of hizanet, was to be respected by the Respondent. The Appellant pleaded that she was a house wife and always at her residence and thus able to take adequate care of her minor children, whereas Respondent being a tailor by profession having a shop at Rajbagh, Srinagar at a distance of 15. K.ms' from the house was not in a position to take good care of the children.