Author : AKASH KRISHNAN
Citation: AIR 1996 Bom 134, 1996 (1) BomCR 553, (1996) 98 BOMLR 591
Bench: A Savant
The initial petition for custody of child was filed by his mother in the trial court under Section 24 of the Guardians and Wards Act, 1890.
Section 24 of the impugned Act talks about Duties of a Guardian. The Guardian who is vested with the custody of the Ward is under the bounden duty to take care of the health, education and ant other requirements that may arise in future, which may be necessary according to law.
After taking evidence and completion of trial, the Court held that the mother of the child is in a more appropriate position to look after the child and thus handed over the custody of the child to her. Aggrieved from the same, the father of the child has approached this court by filing a civil miscellaneous application.
Both the parties are Sunni Muslims and had married in the year 1998. Out of this wedlock, a son and daughter were born in the year 1990 and 1991 respectively. The Appellant is stationed at Miraj, working as a medical representative, a job description involving a lot of travelling; for Eber’s Pharmaceuticals Limited. His monthly allowance totals to Rs. 4000. The Respondent on the other hand, is working with the Telecommunications Department in the same district with a monthly allowance of Rs. 3000. It is pertinent to note that in the year 1994, the Appellant pronounce Talaq and married another woman.
The initial application was filed seeking custody of the son. The claims were based on the fact that Muslim Personal law which applied to their sec, allowed the custody of a male child with the mother up-to the age of 7 years. She further claimed that the Appellant had forcefully taken the child with him and that she was in a better capacity to take care of her child than the Appellant and that after taking away the child, the Appellant did not allow her to meet him. The Appellant denied such claims and stated that although his job requires a lot of travel, he is earning more and is more capable to look after the welfare of the child.
The Court, looking into these facts, gave a judgement in the favour of the Respondent.
Which party is entitled for the Custody of the Child in question?
Under Muslim Personal Laws for Sunni Muslims, even if the wife is divorced or the husband dies, the custody of a male child remains with the Mother until the age of 7. This principle has only one exception, wherein the wife undergoes a second marriage which is not the scenario in the present case.
The Appellant is although drawing a higher amount as salary when compared to the Respondent, the same cannot be treated as a criterion for providing custody as this tender age, money is not of utmost importance, but love and affection is. Further, the Respondent is able to look after the daughter properly and she is capable to do the same for her son.
The very objective of Guardians and Wards Act, 1890 is that the welfare of the child should be considered before anything else. Sections 17 and 25 of the Act make it very clear that the welfare of the child is of paramount consideration, when it comes to appointment of his guardian. In the present case, due to the Job requirements of the Appellant, the child would have to be placed in the care of his Second wife most of the time. But the welfare of the child rests with his own mother rather than a step-mother. Thus, the Respondent has a right to custody of the child and the Appellant may visit the child with advance notice at the residence of his wife according to their own convenience.