# Israr Ahmad v. Azazul Hussain Ahmad & Anr

- **Citation:** (2020) 1 ILRA 296
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-20
- **Case number:** First Appeal No. 148 of 2018
- **Bench:** Anil Kumar, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/israr-ahmad-v-azazul-hussain-ahmad-anr-45054
- **Pages:** 26

## Headnote

A. Family Courts Act, 1984 - Section 19 -
challenge to - custody of minor childdivorce
between
appellant
and
respondent no. 2- appellant no. 1 i.e.
minor is getting proper care by his
mother though he is 11 years old-father
pleaded
to
have
custody
of
minor
according to Mohammadan Law, in which
custody of male child is given after the
male child attains the age of 7 yearsCourt held that welfare of the child is
safer
with
the
mother-what
is
of
paramount consideration is the welfare of
the child under Guardians and Wards Act.
(Para 10 to 21)

First Appeal dismissed. (E-6)

List of cases cited: -

## Text

_Characters 0–39,701 of 88,386. This is a partial read: ask again with offset=39701 for what follows._

296 INDIAN LAW REPORTS ALLAHABAD SERIES
interest to be applied on the overall
compensation amount.

12. Learned counsel for the claimantrespondents further added that it is
admitted
fact
that
no
appeal
for
enhancement on that count has been
presented even then in such case where
statutory
provisions
have
not
been
complied with and verbal objection raised
then it should be treated to be a prayer for
enhancement. Thus the interest awarded
can be interfered with by this Court and it
may be corrected so as to do substantial
justice to the claimant-respondents.

13. Considered the rival submissions
too.

14. In this case, insofar as testimony
of Ramwati Devi PW-1 as reflected from
the award impugned dated 27.09.2005 is
concerned, obviously, every parameter was
taken into consideration by the Workmen's
Compensation Commissioner and aspect
and magnitude of testimony of Ramwati
Devi PW-1 that was forthcoming was
rightly acted upon by the Workmen's
Compensation Commissioner. There is
nothing on record which may give
credence to the claim of the Insurance
Company-appellant that there was no
relationship existing between the deceased
and owner of the offending vehicle -
respondent no.7 as the employer and the
employee.

15. Further no proper rebuttal has
been done by the Insurance Companyappellant while it had full opportunity to
contest the claim on that particular count
as raised before this Court. Consequently,
in such case where the case of the
claimant-respondents stands proved by
cogent and consistent testimony, it would
not be arguable that there was no such
relationship
(the
employer
and
the
employee) in absence of supporting
material thereof.

16. Admittedly, the interest to be
awarded in the case was as per Section 4 A
of the Workmen's Compensation Act to be
fixed at the rate of 12% per annum,
however, it was fixed at the rate of 4% per
annum. Therefore, on that count verbal
objection of the learned counsel for the
claimant-respondent
nos.1
to
6
is
sustained.
The
award
impugned
is
modified to the extent that on the overall
compensation to the tune of Rs.3,51,080/-,
interest rate shall be charged at the rate of
12% per annum instead of 4%. The verbal
objection raised by learned counsel for the
claimant-respondents
is
accepted,
accordingly.

17. Accordingly, the impugned award
dated 27.09.2005 passed by the Workmen's
Compensation Commissioner / Assistant
Labour Commissioner, Bulandshahar, in
W.C.A. No.04 of 2002, Smt. Ramwati
Devi and others Vs. Aftab Ahmad and
another, stands modified to that extent and
the appeal preferred by the Insurance
Company is liable to be rejected, whereas,
the verbal cross objection raised by the
claimant-respondent stands allowed as
above.

18. For the reasons aforesaid, the
instant appeal lacks merit and the same is
dismissed.
----------
(2020)1ILR 296

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.12.2019

BEFORE
THE HON'BLE ANIL KUMAR, J.
1 All. Israr Ahmad Vs. Azazul Hussain Ahmad & Anr.
297
THE HON'BLE SAURABH LAVANIA, J.

First Appeal No. 148 of 2018

Israr Ahmad ...Appellant
Versus
Azazul Hussain Ahmad & Anr.
 ...Respondents

Counsel for the Appellant:
Rajneesh Kumar Verma, Surendra Pratap
SIngh

Counsel for the Respondents:
Ziauddin Khan

A. Family Courts Act, 1984 - Section 19 -
challenge to - custody of minor childdivorce
between
appellant
and
respondent no. 2- appellant no. 1 i.e.
minor is getting proper care by his
mother though he is 11 years old-father
pleaded
to
have
custody
of
minor
according to Mohammadan Law, in which
custody of male child is given after the
male child attains the age of 7 yearsCourt held that welfare of the child is
safer
with
the
mother-what
is
of
paramount consideration is the welfare of
the child under Guardians and Wards Act.
(Para 10 to 21)

First Appeal dismissed. (E-6)

List of cases cited: -

1. Athar Husain Vs. Syed Siraj Ahmed & Ors.
(2010) 2 SCC 654

2. Anjali Kapoor (SMT) Vs. Rajiv Bailaj (2009) 7
SCC 322

3. Smt. Nazma Vs. Abdual Wahab (2012) 91 ALR 815

4. Smt. Nazma Vs. Abdual Wahab (AIR 2005 Ker 68)

5. Mohammed Jameel Ahmed Ansari Vs. Ishath
Sanjeeda & Ors. (AIR 1983 AP 106)

6. Abdulsattar Husen Kudachikar Vs. Shahina
Abdulsattar Kudachikar (AIR 1996 Bom 134)
7. Smt. Kahkashan Bano Vs. Abdul Moiz Ansari
((1990) 16 ALR 401)

(Delivered by Hon'ble Anil Kumar, J.)

1. Heard, Sri S.P.Singh, learned
Counsel for the appellant and Ms. Archana
Singh Advocate, holding brief of Sri
Ziauddin Khan, learned Counsel for the
respondent.

2. Facts in brief of the present case,
as per record, are that marriage between
appellant Israr Ahmad and Smt. Zaafrana
was solemnized on 03.06.2006 as per
Muslim rites and customs and out of the
wedlock of appellant and Smt. Zaafrana
and on 16.05.2007 one baby boy was born
namely Azazul Hussain. Matrimonial
relation
between
the
appellant
Israr
Ahmad and Smt. Zaafrana became strained
and on 26.04.2008 Smt. Zaafrana left her
matrimonial home. In view of the said
factual background, the appellant Israr
Ahmad filed a case bearing Misc. Case
No. 30 of 2010 ( Israr Ahmad Vs. Izazul
Hussain) before the Principal Judge,
Sitapur for custody of his minor child i.e.
respondent no. 1-Azazul Hussain.

3. On 07.08.2018, Principal Judge,
Family Court, Sitapur dismissed the case
of the appellant for custody of minor child
namely Azazul Hussain.

4. Challenging the judgment and
order dated 07.08.2018, the present appeal
has been filed.

5. Learned Counsel for the appellant
submits that the matter pertains to the
Mohammadan Law and the question of
guardianship was to be considered by the
Principal Judge, Family Court in the light
of the Mohammadan Law, in which it has
298 INDIAN LAW REPORTS ALLAHABAD SERIES
been provided that in respect of custody of
a male child the father is entitled to its
custody after the male child attains the age
of seven years and the mother has no right
and authority to retain custody of a male
child after it attains the age of seven years.
Learned Counsel for the appellant further
submits
that
plaintiff-appellant
has
specifically pleaded and led evidence to
the effect that the future of defendantrespondent no. 1 under the guardianship of
defendant-respondent no. 2 is in dark as
she is unable to give proper eduction. This
fact remained uncontroverted and it
amounts to admission by the defendantrespondent no. 2, but the learned Principal
Judge, Family Court, Sitapur has failed to
consider the undertaking, the fact and the
evidence led by the plaintiff-appellant and
recorded a perverse finding to the effect
that welfare of defendant-respondent no. 1
is with defendant-respondent no. 2.

6. Learned Counsel for the appellant
further submits that the judgments which
have been cited in the order impugned are
not related with the Muslim law and have
been
misinterpreted
while
specific
undertaking was given by the plaintiffappellant before the Court that he will look
after the defendant-respondent no. 1 and
provide good education and facilities to
defendant-respondent no. 1.

7. Learned Counsel for the appellant
further
submits
that
the
impugned
judgment and order dated 07.08.2018 has
been passed ex-parte and as such, the fact
which was pleaded by the plaintiffappellant and the evidence which was led
by the plaintiff-appellant amounted to
admission and, as such, on the basis of the
uncontroverted fact and evidence, learned
Principal Judge, Family Court, Lucknow
ought
not
to
have
dismissed
the
application filed by the appellant, rather
the same was liable to be allowed.

8. In rebuttal, Ms. Archana Singh
Advocate, holding brief of Sri Ziauddin
Khan, learned Counsel for the respondent
submits that there is no illegality or
infirmity in the impugned order dated
07.08.2018 passed by the Principal Judge,
Family Court, Sitapur and in its order the
learned court below has specifically
mentioned that divorce/talak has already
been taken place between the appellant
Israr Ahmad and Smt. Zaafrana on
06.07.2013 and since 2008, when the
respondent no. 1 was born, he is living
with his mother Smt. Zaafrana and at the
time of passing of the order dated
07.08.2018, he was 10 years old and her
mother
is
giving
proper
care
and
education, therefore, the present appeal is
liable to be dismissed.

9.

We
have
considered
the
submissions of learned Counsel for the
parties and perused the records. Point for
consideration in the present appeal is
"whether learned court below rightly held
that father/appellant is not entitled to the
custody of the minor/ respondent no. 1 i.e.
Master Azazul Hussain.

10. In order to decide the controversy
in the present case, we feel it appropriate
to take note of the relevant portion of
Chapter XVIII of Guardianswhip of
Person and Property, page 445 of Mulla
Principals of Mahomedan Law, which
reads as under:-

Para
351.
Matter
to
be
considered by the court in appointing
guardian :-

(1) in appointment or declaring
the guardian of the minor, the court shall,
1 All. Israr Ahmad Vs. Azazul Hussain Ahmad & Anr.
299
subject to the provision of this section, be
guided by what, consistently with the law
to which the minor is subject, appears in
the circumstances to be for the welfare of
the minor.

(2) in considering what will be
for the welfare of the minor, the court
shall have regard to the age, sex and
religion of the minor, the character and
capacity of the proposed guardian and his
nearness to kin to the minor, the wishes, if
any, of a deceased parent, and any
existing or previous relation of the
proposed guardian with the minor of his
property.

(3) if the minor is old enough to
from an intelligent preference, the court
may be consider that preference.

It is true that the father is not
proved to have lost the right to being
appointed as the guardian of the minor.
He has no defect and he being the natural
guardian of the minor could be appointed
provided it was the interest of the minor .
Minor can not be forced to live with the
father
because
that
may
cause
psychological deterioration to the minor
and may eventually affect his health also
because of at this age he needs love and
affection. He being of the age of seven
cannot show his preference as to with
whom he wants to live. If he is give
affection and love which he need at this
age by the respondent or the appellant
No.1, then he should be permitted to have
the affection and love of any one of them.
For that purpose it is necessary to
ascertain the wishes of the minor.

If the minor is capable of making
the preference, he should be brought to the
court and thereafter order of appointment
of guardian should be made.

Welfare of the minor - the above
section is a reproduction in terms of s. 17
clauses(1),(2) and (3), of the Guardian
and Ward Act. It impose a duty upon the
court in appointment a guardian to make
the appointment consistently with the law
to which the minor is subject. The central
idea is the welfare of the minor, and the
Allahabad and J&K High Courts have
said that though the rules of the
mahomedan law have to taken into
consideration the main question to be
considered is what would be conducive to
the child's welfare. In a Randoon case, the
mother
has
lost
her
right
under
Mahomedan law as she has been divorced
and had remarried a Buddhist. She was
nevertheless appointed guardian, as the
court considered that the interest of the
minor would be best promoted by leaving
with the mother. The mother would be the
proper guardian for children of tender
years, even though she lived separate from
her husband owing to disputes over
property, provided that she had not been
guilty of misconduct.

Under the Muslim Personal
Law, the mother is entitled to the custody
(Hizanat) of her male child until he has
competed the age of seven years and the
female child until she has attained
puberty. Puberty is attained at the age of
14 or 15 years.

Another principle of law which
is too well established is that, in a
proceeding for appointment of guardian, it
is not the guardianship of the minor which
is important, but it is the welfare of the
minor
that
has
to
be
taken
into
consideration. If there is no conflict
between the personal law to which the
minor is subject and the consideration of
the minor's welfare, the latter must
prevail.

In appointing the respondent
grandmother as the guardian of the minor
children, the court below was not guided
by
what
in
the
circumstance
was
300 INDIAN LAW REPORTS ALLAHABAD SERIES
conducive to the welfare of the minor and
this order, therefore, cannot be upheld.
The mother's application has to be allowed
and the mother be appointed as guardian.
Nigher the mother nor the grandmother
can be the guardian of the property of the
minors.

11. Hon'ble the Apex Court in the
case of Athar Husain vs. Syed Siraj
Ahmed and others, (2010) 2 SCC 654
held as under:-

"25. In case of custody of the
minor children, the family law i.e. the
Mohammedan Law would apply in place
of the Act. Considering the provisions
under Section 353 of the Mohammedan
Law, the High Court had held that the
preferential rights regarding the custody
of the minor children rest with the
maternal grandparents. After making a
doubtful proposition that in case of a
conflict between personal law and the
welfare of the children the former shall
prevail, the High Court held that in the
case at hand there is no such conflict. For
the reasons aforementioned, the High
Court by its impugned order set aside the
order of the Family Court, Bangalore
which vacated the interim order of
injunction issued against the appellant. It
is this order of the High Court, which is
challenged before us by way of a special
leave petition Hon'ble the Apex Court in
the case of Athar Husain vs. Syed Siraj
Ahmed and others, (2010) 2 SCC 654 held
as under which on grant of leave has been
heard by us in the presence of the learned
counsel appearing on behalf of the parties.

26. It was the contention of the
appellant before us that the Act will apply
to the present case because there is a
conflict between the preferential guardian
in the Mohammedan Law and the Act. It
was pointed out that while deciding the
custody of the minor children, the welfare
of the children had to be taken into
consideration and that it was guaranteed
by the Act. They have placed their reliance
on Rafiq v. Bashiran [AIR 1963 Raj 239] .
The Rajasthan High Court in the cited
case held that where the provisions of the
personal law are in conflict with the
provisions of the Guardians and Wards
Act, 1890 the latter shall prevail over the
former.

27.
Relying
on
Brijendra
Narayan Ganguly v. Chinta Haran Sarkar
[AIR 1961 MP 173] , it was contended by
the learned counsel for the appellant that
there is a presumption that parents will be
able to exercise good care in the welfare
of their children.

28. It was argued by the learned
counsel on behalf of respondents that the
impugned order warrants no interference.
Before passing the impugned order, the
learned Judge had spent over one hour
with the children to ascertain their
preferences. The children have been living
with the respondents since their mother's
death in June 2006 as the High Court had
stayed the order of the Family Court
vacating the injunction order. While the
respondents had been complying with the
visitation rights granted to the appellant,
the children were not happy with the
treatment meted out to them during the
time they spent with their father and
stepmother. In contrast, Respondent 3,
contrary to the apprehensions expressed
by the appellant has stated on record that
she had no intention to marry and would
devote her life towards the welfare of the
children. The respondents further asserted
that the cases of Rafiq v. Bashiran [AIR
1963 Raj 239] and B.N. Ganguly [AIR
1961 MP 173] are not applicable to the
facts of this case.
1 All. Israr Ahmad Vs. Azazul Hussain Ahmad & Anr.
301

29. We have heard the learned
counsel for both the parties and examined
the impugned order of the High Court and
also the orders passed by the Family
Court. After considering the materials on
record and the impugned order, we are of
the view that at this stage the respondents
should be given interim custody of the
minor children till the disposal of the
proceedings filed under Sections 7, 9 and
17 of the Act.

30. Reasons are as follows:
Section 12 of the Act empowers courts to
"make such order for the temporary
custody and protection of the person or
property of the minor as it thinks proper".
(emphasis supplied) In matters of custody,
as well settled by judicial precedents, the
welfare of the children is the sole and
single yardstick by which the court shall
assess the comparative merit of the parties
contesting for the custody. Therefore,
while deciding the question of interim
custody, we must be guided by the welfare
of the children since Section 12 empowers
the court to make any order as it deems
proper.

31. We are mindful of the fact
that, as far as the matter of guardianship
is concerned, the prima facie case lies in
favour of the father as under Section 19 of
the Guardians and Wards Act, unless the
father is not fit to be a guardian, the court
has no jurisdiction to appoint another
guardian. It is also true that the
respondents,
despite
the
voluminous
allegations levelled against the appellant
have not been able to prove that he is not
fit to take care of the minor children, nor
has the Family Court or the High Court
found him so. However, the question of
custody is different from the question of
guardianship. Father can continue to be
the natural guardian of the children;
however, the considerations pertaining to
the welfare of the child may indicate
lawful custody with another friend or
relative as serving his/her interest better.

32. In Rosy Jacob v. Jacob A.
Chakramakkal [(1973) 1 SCC 840 : (1973)
3 SCR 918] , keeping in mind the
distinction between right to be appointed
as a guardian and the right to claim
custody of the minor child, this Court held
so in the following oft quoted words: (SCC
pp. 854-55, para 15)

"15. ... Merely because the father
loves his children and is not shown to be
otherwise undesirable cannot necessarily
lead to the conclusion that the welfare of
the children would be better promoted by
granting their custody to him as against
the wife who may also be equally
affectionate towards her children and
otherwise equally free from blemish, and,
who, in addition, because of her profession
and financial resources, may be in a
position to guarantee better health,
education and maintenance for them."

33. In Siddiqunnisa Bibi v.
Nizamuddin Khan [AIR 1932 All 215] ,
which was a case concerning the right to
custody under the Mohammedan Law, the
Court held: (AIR p. 218)

"A question has been raised
before us whether the right under the
Mahomedan Law of the female relation of
a minor girl under the age of puberty to
the custody of the person of the girl is
identical with the guardianship of the
person of the minor or whether it is
something different and distinct. The right
to the custody of such a minor vested in
her female relations, is absolute and is
subject to several conditions including the
absence of residing at a distance from the
father's place of residence and want of
taking proper care of the child. It is also
clear that the supervision of the child by
the father continues in spite of the fact that
302 INDIAN LAW REPORTS ALLAHABAD SERIES
she is under the care of her female
relation, as the burden of providing
maintenance for the child rests exclusively
on the father.

35.
Keeping
in
mind
the
paramount consideration of the welfare of
the children, we are not inclined to disturb
their custody which currently rests with
their maternal relatives as the scope of
this order is limited to determining with
which of the contesting parties the minors
should stay till the disposal of the
application for guardianship.

36.
The
appellant
placed
reliance on R.V. Srinath Prasad v.
Nandamuri Jayakrishna [(2001) 4 SCC 71
: AIR 2001 SC 1056] . This Court had
observed in this decision that custody
orders by their nature can never be final;
however, before a change is made it must
be proved to be in the paramount interest
of the children. In that decision, while
granting interim custody to the father as
against the maternal grandparents, this
Court held: (SCC pp. 76-77, para 10)

"10. ... The Division Bench
appears to have lost sight of the factual
position that at the time of death of their
mother the children were left in custody of
their paternal grandparents with whom
their father is staying and the attempt of
Respondent 1 was to alter that position
before the application filed by them is
considered by the Family Court. For this
purpose it was very relevant to consider
whether leaving the minor children in
custody of their father till the Family
Court decides the matter would be so
detrimental to the interest of the minors
that their custody should be changed
forthwith. The observations that the father
is facing a criminal case, that he mostly
resides in USA and that it is alleged that
he is having an affair with another lady
are, in our view, not sufficient to come to
the conclusion that custody of the minors
should be changed immediately."

(emphasis supplied)

What is important for us to note
from these observations is that the court
shall determine whether, in proceedings
relating to interim custody, there are
sufficient and compelling reasons to
persuade the court to change the custody
of the minor children with immediate
effect.

37. Stability and consistency in
the affairs and routines of children is also
an important consideration as was held by
this Court in another decision cited by the
learned counsel for the appellant in
Mausami Moitra Ganguli v. Jayant
Ganguli [(2008) 7 SCC 673 : AIR 2008 SC
2262] . This Court held: (SCC pp. 679-80,
para 24)

"24. ... We are convinced that
the dislocation of Satyajeet, at this stage,
from Allahabad, where he has grown up in
sufficiently good surroundings, would not
only impede his schooling, it may also
cause emotional strain and depression to
him."

After taking note of the marked
reluctance on the part of the boy to live
with his mother, the Court further
observed: (Mausami Moitra case [(2008)
7 SCC 673 : AIR 2008 SC 2262] , SCC p.
680, para 26)

"26. Under these circumstances
and bearing in mind the paramount
consideration of the welfare of the child,
we are convinced that the child's interest
and welfare will be best served if he
continues to be in the custody of the father.
In our opinion, for the present, it is not
desirable to disturb the custody of Master
Satyajeet and, therefore, the order of the
High Court giving his exclusive custody to
1 All. Israr Ahmad Vs. Azazul Hussain Ahmad & Anr.
303
the father with visitation rights to the
mother deserves to be maintained."

(emphasis supplied)

38. The children have been in
the lawful custody of the respondents from
October 2007. In Gaurav Nagpal v.
Sumedha Nagpal [(2009) 1 SCC 42] , it
was argued before this Court by the father
of the minor child that the child had been
in his custody for a long time and that a
sudden
change
in
custody
would
traumatise the child. This Court did not
find favour with this argument. This Court
observed that the father of the minor child
who retained the custody of the child with
him by flouting court orders, even leading
to institution of contempt proceedings
against him, could not be allowed to take
advantage of his own wrong. The case
before us stands on a different footing. The
custody of the minor children with the
respondents is lawful and has the sanction
of the order of the High Court granting
interim custody of the children in their
favour. Hence, the consideration that the
custody of the children should not undergo
an immediate change prevails.

. The question with whom they
remained during the period from the death
of their mother till the institution of
present proceedings is a matter of dispute
between the parties and we are not in a
position to reach a conclusion on the same
without going into the merits of the matter.
At any rate, the children are happy and
are presumably taken care of with love
and affection by the respondents, judging
from the reluctance on the part of the girl
child to go with her father. She might
attain puberty at any time. As the High
Court has rightly observed, it may not be
in the interests of the children to separate
them from each other. Hence, at this
juncture, we are not inclined to disturb the
status quo, as we are only concerned with
the question of interim custody at this
stage.

40. The learned counsel for the
appellant has placed reliance on Rafiq v.
Bashiran [AIR 1963 Raj 239] . In that
case, the High Court had set aside the
order of the Civil Judge granting the
custody of the child to her mother's
paternal aunt, while the father was not
proven to be unfit. Quoting from Tyabji's
Mahomedan Law, 3rd Edn., Section 236
(p. 275) the Court observed:

"The following persons have a
preferential right over the father to the
custody of (sic) minor girl before she
attains the age of puberty:

1. Mother's mother.

2. Father's mother.

3.
Mother's
grandmother,
howsoever high.

4.
Father's
grandmother,
howsoever high.

5. Full sister.

6. Uterine sister.

7.
Daughter
of
full
sister,
howsoever low.

8. Daughter of uterine sister,
howsoever low.

9. Full maternal aunt, howsoever
high.

10.
Uterine
maternal
aunt,
howsoever high.

11.
Full
paternal
aunt,
howsoever high."

41. However, the High Court of
Rajasthan held that in the light of Section
19 which bars the court from appointing a
guardian when the father of the minor is
alive and not unfit, the Court could not
appoint any maternal relative as a
guardian, even though the personal law of
the minor might give preferential custody
in
her
favour.
As
is
evident,
the
aforementioned
decision
concerned
304 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment of a guardian. No doubt,
unless the father is proven to be unfit, the
application for guardianship filed by
another person cannot be entertained.
However, we have already seen that the
question of custody was distinct from that
of guardianship. As far as matters of
custody are concerned, the court is not
bound by the bar envisaged under Section
19 of the Act.

42. In our opinion, as far as the
question of custody is concerned, in the
light of the aforementioned decisions, the
personal law governing the minor girl
dictates her maternal relatives, especially
her
maternal
aunt,
shall
be
given
preference. To the extent that we are
concerned with the question of interim
custody, we see no reason to override this
rule of Mohammedan Law and, hence, a
prima facie case is found in favour of the
respondents. Further, the balance of
convenience lies in favour of granting the
custody to the maternal grandfather, aunt
and uncle.

43. A plethora of decisions of
this Court endorse the proposition that in
matters of custody of children, their
welfare shall be the focal point. Once we
shift the focus from the rights of the
contesting relatives to the welfare of the
minor children, the considerations in
determining the question of balance of
convenience also differ. We take note of
the fact that Respondent 3, on record, has
stated that she has no intention to get
married and her plea that she had
resigned from her job as a technical writer
to take care of the children remains
uncontroverted. We are, hence, convinced
that the respondents will be in a position
to provide sufficient love and care for the
children
until
the
disposal
of
the
guardianship application.

44. The second marriage of the
appellant, though a factor that cannot
disentitle him to the custody of the
children, yet is an important factor to be
taken into account. It may not be
appropriate on our part to place the
children in a predicament where they have
to adjust with their stepmother, with whom
admittedly they had not spent much time
as the marriage took place only in March
2007, when the ultimate outcome of the
guardianship
proceedings
is
still
uncertain.

45. The learned counsel for the
appellant placed reliance on Bal Krishna
Pandey v. Sanjeev Bajpayee [AIR 2004 Utt
1] wherein the maternal grandfather of the
minor contested with the father of the
minor for custody of a girl aged about 12
years. The Uttaranchal High Court in that
case gave the custody of minor to the
father rejecting the contention of the
grandfather (the appellant) that the father
(the respondent) after his remarriage will
not be in a position to give fair treatment
to the minor. However, in that case, the
second wife of the father had been
medically proven as unable to conceive.
Hence, the question of a possible conflict
between her affection for the children
whose custody was in dispute and the
children she might bear from the father
did not arise. In the case before us, the
situation is not the same and the
possibility of such conflict does have a
bearing upon the welfare of the children.

46. As this is a matter of interim
custody till the final disposal of the
application GWC No. 64 of 2007, we are
of the opinion that the interests of the
children will be duly served if their current
residence is not disturbed and a sudden
separation from their maternal relatives
does not come in their way. Irreparable
injury will be caused to the children if
1 All. Israr Ahmad Vs. Azazul Hussain Ahmad & Anr.
305
they, against their will, are uprooted from
their present settings.

47. The learned counsel for the
appellant placed strong reliance on
Hassan Bhat v. Ghulam Mohamad Bhat
[AIR 1961 J&K 5] which held that the
words "subject to the provisions of this
section" in sub-section 1 of Section 17 of
the
Act
clearly
indicates
that
the
consideration of the welfare of the minor
should be the paramount factor and
cannot be subordinated to the personal
law of the minor. The view expressed by
the High Court is clearly correct. As far as
the
question
of
interim
custody
is
concerned, we are of the view that there is
no conflict between the welfare of the
children
and
the
course
of
action
suggested by the personal law to which
they are subject.

49. According to the appellant,
from the fact that the respondents raised
the issue of death of his wife ten months
after her death and one month after he
refused the marriage offer of Respondent
3, it must be inferred that the respondents
have raised this issue merely to obtain the
custody
of
children
and
that
the
respondents did not come to Court with
clean hands. As far as the question of
denying the respondents the interim
custody of children on the ground that they
had not approached the Court with clean
hands, we are constrained to say that we
are not in a position to conclusively infer
the same. The alleged refusal on part of
the appellant to marry Respondent 3 which
is said to have led the respondents to file
the application for guardianship, is again
a question of fact which is yet to be
proved.

50. In Nil Ratan Kundu v. Abhijit
Kundu [(2008) 9 SCC 413] this Court had
enumerated
certain
principles
while
determining the custody of a minor child.
This Court in para 52 observed: (SCC p.
428)

"52. ... A court while dealing
with custody cases, is neither bound by
statutes nor by strict rules of evidence or
procedure nor by precedents. In selecting
proper
guardian
of
a
minor,
the
paramount consideration should be the
welfare and well-being of the child."

Thus
the
strict
parameters
governing an interim injunction do not
have full play in matters of custody."

12. Hon'ble the Apex Court in the
case of Anjali Kapoor (SMT) vs. Rajiv
Bailaj, (2009) 7 SCC 322 held as under:-

"15. Under the Guardians and
Wards Act, 1890, the father is the
guardian of the minor child until he is
found unfit to be the guardian of the minor
female child. In deciding such questions,
the welfare of the minor child is the
paramount consideration and such a
question cannot be decided merely based
upon the rights of the parties under the
law. [See Sumedha Nagpal v. State of
Delhi [(2000) 9 SCC 745 : 2001 SCC
(Cri) 698] (SCC p. 747, paras 2 & 5).]

16. In Rosy Jacob v. Jacob A.
Chakramakkal [(1973) 1 SCC 840] this
Court has observed that: (SCC p. 847,
para 7)

"7. ... the principle on which the
court should decide the fitness of the
guardian mainly depends on two factors:
(i) the father's fitness or otherwise to be
the guardian, and (ii) the interests of the
minors."

This
Court
considering
the
welfare of the child also stated that: (SCC
p. 855, para 15)

"15. ... The children are not
mere
chattels:
nor
are
they
mere
playthings for their parents. Absolute right
306 INDIAN LAW REPORTS ALLAHABAD SERIES
of parents over the destinies and the lives
of their children has, in the modern
changed social conditions, yielded to the
considerations of their welfare as human
beings so that they may grow up in a
normal balanced manner to be useful
members of the society...."

17. In Elizabeth Dinshaw v.
Arvand M. Dinshaw [(1987) 1 SCC 42 :
1987 SCC (Cri) 13 : AIR 1987 SC 3] this
Court has observed that whenever a
question arises before court pertaining to
the custody of the minor child, the matter
is to be decided not on consideration of the
legal rights of the parties but on the sole
and predominant criterion of what would
best serve the interest and welfare of the
child.

18. At this stage, it may be useful
to refer to the decision of the Madras High
Court, to which reference is made by the
High Court in the case of Muthuswami
Moopanar [Muthuswami Chettiar v. K.M.
Chinna Muthuswami Moopanar, AIR 1935
Mad 195] wherein the Court has observed,
that, if a minor has for many years from a
tender age lived with grandparents or near
relatives and has been well cared for and
during that time the minor's father has
shown a lack of interest in the minor, these
are
circumstances
of
very
great
importance, having bearing upon the
question of the interest and welfare of the
minor and on the bona fides of the petition
by the father for their custody. In our view,
the observations made by the Madras High
Court cannot be taken exception to by us.
In fact those observations are tailor-made
to the facts pleaded by the appellant in this
case. We respectfully agree with the view
expressed by the learned Judges in the
aforesaid decision.

19. In McGrath (infants), Re
[(1893) 1 Ch 143 : 62 LJ Ch 208 (CA)] it
was observed that: (Ch p. 148)

"... The dominant matter for the
consideration of the court is the welfare of
the child. But the welfare of a child is not
to be measured by money only, nor by
physical comfort only. The word welfare
must be taken in its widest sense. The
moral and religious welfare of the child
must be considered as well as its physical
well-being. Nor can the ties of affection be
disregarded."

20. In American Jurisprudence,
2nd Edn., Vol. 39, it is stated that:

"... An application by a parent,
through the medium of a habeas corpus
proceeding, for custody of a child is
addressed to the discretion of the court,
and custody may be withheld from the
parent where it is made clearly to appear
that by reason of unfitness for the trust or
of other sufficient causes the permanent
interests of the child would be sacrificed
by a change of custody. In determining
whether it will be for the best interest of a
child to award its custody to the father or
mother, the court may properly consult the
child, if it has sufficient judgment."

21. In Walker v. Walker &
Harrison [1981 New Ze Recent Law 257]
the New Zealand Court (cited by British
Law Commission, Working Paper No. 96)
stated that:

"Welfare is an all-encompassing
word. It includes material welfare; both in
the sense of adequacy of resources to
provide
a
pleasant
home
and
a
comfortable standard of living and in the
sense of an adequacy of care to ensure
that good health and due personal pride
are maintained. However, while material
considerations have their place they are
secondary matters. More important are the
stability and the security, the loving and
understanding care and guidance, the
warm and compassionate relationships
that are essential for the full development
1 All. Israr Ahmad Vs. Azazul Hussain Ahmad & Anr.
307
of the child's own character, personality
and talents."

13. This High Court in the case of
Smt. Nazma vs. Abdual Wahab (2012) 91
ALR 815 held as under:-

"13.
In
Immambandi
v.
Mutsaddi, (1917-1918) 45 IA 73 their
Lordships of the privy council said "It is
perfectly clear that under the Mohamedan
law the mother is entitled only to the
custody of the person of her minor child
upto a certain age according to the sex of
the child. But she is not the natural
guardian; the father alone, or, if he be
dead, his executor (under the Sunni Law)
is the legal guardian." It would thus
appear that father is the primary and the
natural guardian of his minor child and
that the right of the custody of mother is
only upto a certain age of the minor i.e. 7
years in the case of male child and till the
attainment of puberty in the case of female
child.

14. In Mt. Ulfat Bibi v. Bafati,
AIR 1927 Alld. 581 a division Bench of
this court laid down that under the
Mohamedan law father is the natural
guardian of his minor boy but side by side
with the right of the father as lawful
guardian exists the recognized right of the
mother to have the custody of the child
upto the age of seven years. Thus, the right
of the mother to have custody of her minor
son is limited upto 7 years of his age under
the Mohamedan law.

15. In case at hand, the minor is
a male child aged above 7 years and
therefore, as per the Mohamedan law the
father is the natural guardian and is
entitled to his custody.

16. The court below in view of
the compromise dated 16.10.09 allegedly
between the appellant and the respondent
accepted the version of the respondent that
there is a divorce between the two.

17. The court below further
found that the name of the appellant
appears in the family register as the wife
of one Mehboob and on its basis inferred
that the appellant has remarried.

18. The aforesaid findings are
not acceptable to the appellant but in the
absence of any positive evidence to prove
otherwise, this court is at a loss to
interfere with the same.

19. In view of the aforesaid facts
and circumstances, under the Muslim law,
the father being the natural guardian is
entitled to the custody of the minor in
question and the mother stand ousted from
getting the custody particularly in view of
her remarriage. However, the personal
law of the parties is merely a guiding
factor in deciding the custody of the minor
as is evident from the plain reading of
Section 17 of the Act as well as Section
351 of the principles of Mohamedan law.

20. Section 7 read with Section
17 of the Act mandates the court to
consider the welfare of the minor and to be
guided by the law to which the minor is
subject in appointing a guardian of a
minor. The Supreme Court in JT 1993 (1)
SC 229 Ms. Chandra Lekha v. Capt. Vipul
Menor has laid down that the question
regarding custody of minor cannot be
decided on the basis of the legal rights of
the parties but on the sole and predominant criteria of what would best serve
the interest and welfare of the minor.

21.