NAZMA Vs. MOHAMMED SABIR

JUDGEMENT

(1.) BY this appeal under section 47 of the Guardians and Wards Act (No. VIII of 1890), the mother, who is non-petitioner (appellant) has questioned the correctness of the order dated October 6, 1979 of the District Judge, Jodhpur, by which he accepted the petition of the father (petitioner-respondent) and directed that he will get the custody of his minor son Mohammed Hamid. The petitioner-respondent and non-petitioner appellant will hereinafter be referred to as the father and mother respectively. The relevant facts may briefly be noticed. The father was married with the mother at Jodhpur on September 23, 1969. Out of this wedlock, the mother gave birth to a male child on October 19, 1970. The name of the child is Mohammed Hamid. On June 23, 1971, the mother went to her parents' house and she took Mohammed Hamid with hear. She did not return thereafter. It was stated that the mother sued the father for maintenance and divorce and was unsuccessful. Mohammed Hamid completed seven years of age on October 19 1977. The father filed a petition under s. 25 of the Act in the Court of District Judge, Jodhpur for the return of the custody of the minor Mohammed Hamid on October 31, 1977 on the ground that it is the welfare of his minor son Mohammed Hamid that his custody should be returned to him from the mother. The mother resisted the petition. It was admitted by her that she is living with the minor son in her parents' house since September 23, 1971. She pleaded ill treatment of the father and the members of his family. It was also alleged by her that the father had contacted a second marriage and he has never taken care of the minor Mohammed Hamid for the last seven years. In these circumstances; it was prayed by her that it would not be in the welfare and interest of the minor to deliver him the custody of Mohammed Hamid In support of the petition, the father examined P. W. 1 Jai Dutt Purohit, PW. 2 Mohammed Sabir (father), P. W. 3 Mohammed Hassam (the father of the father), PW 4 Abdul Gaffar and PW 5 Ann Raj The mother examined N. A. W, 1, Tejraj NAW 2, Nazma (mother), N. A. W. 3 Mohammed Rafiq, N. A. W. 4 Mustaq Ali, N. A. W. 5 Mohammed Ahsan (brother of the mother) and Mohammed Hamid (minor ). The learned District Judge by his order dated October 6,1979, accepted the petition or the father holding that he is entitled to recover the custody of his minor son Mohammed Hamid, who was in the custody of the mother. She was directed to return the minor Mohammed Hamid to the custody of the father on or before November 2, 1979. It was also ordered that if she failed to do so by that time, a 'warrant should be issued in accordance with the provisions of section 25 (2) of the Act. Aggrieved, the mother has preferred this appeal.

(2.) I heard Mr. P. C. Mathur, learned counsel for the appellant and Mr. G. M. Mehta, learned counsel for the respondent and have also carefully considered the record.

(3.) S. K. Chbudhary vs. Sm. Satirani Chowdhary (3) was a case under s. 25 of the Act. In that case, the father applied under s. 25 for the custody of his minor boy of five years from the custody of the mother whom he had driven-out of the house four years back without caring to know how they were living or making any serious efforts to bring them back. It was held that in the circumstances of the case it would be to the welfare of the minor to remain with his mother and it would be against his welfare to turn him over to his father. The application was dismissed as not being bonafide.