AMNA Vs. ABDUL RAHIM

JUDGEMENT

(1.) THIS is an appeal by Mst. Amna in a guardianship case. The facts are that Abdulrahim minor is the son of the appellant and Abdul Rahim, respondent, and was born in August, 1939. It is said that strained relations arose between the appellant and her husband in 1953, and she had to leave her husband. The minor child also came with her, and both of them lived with the appellant's parents. The present application was made in November, 1947, after the minor had passed the age of seven years. To avoid the complications of Mohummadan Law the respondent prayed under sec. 25 of the Guardian and Wards Act for the custody of his minor son. THIS application was opposed by the appellant, who is the mother of the minor, on the ground that it was not in the welfare of the minor to return to the custody of the father.

(2.) THE main question which arises in dealing with an application under section 25 of the Guardian and Wards Act, is whether in the opinion of the court it would be for the welfare of the ward to return to the custody of the natural guardian, in this case the father. THE reply to this question will depend in each case on the circumstances of the particular case. THEre is no doubt that a father will not ordinarily be deprived of the custody of his son, unless there are reasons to hold otherwise. In the present case, it has been proved that the father was involved in a murder case, and gave evidence as an approver, thus, at any rate, admitting his own part in the murder. It has also been shown that the father continued drawing the rations of his wife, even though she had left him, for a long time. For this act of cheating the Railway Grain shop, he was made to pay a sum of Rs. 105/ -. THEse two facts, which have been proved, clearly show defect of character in the father. It has also been proved that the father has been completely neglecting the minor, and has never done anything for the child after the mother left him. It has further been proved that father has married a second wife, and that minor is at the moment, at any rate; more or less, unfamiliar with the father. In these circumstances, we think that it was right for the District Judge to have dismissed the application of the father; but the learned District Judge, while dismissing the application, has made a remark that the minor was entitled to remain with the mother till she was divorced by the respondent or for two years more. We take it that this means that the minor could stay with the mother either for two years or till she was divorced, whichever was the shorter period. We think that under the circumstances mentioned by us above, this rider should not have been added by the District Judge, when he was dismissing the application. THE District Judge also said that the applicant might be given an opportunity 10 see the minor so that he might get familiarity with the chili. So far as that is concerned, there is, in our opinion, no objection to the applicant being allowed to meet his son; but this should be at the house where the boy lives.