Allahabad High Court
Irshad Alam vs Isma Alam on 9 May, 2013
Equivalent citations: (2014) 1 DMC 464, 2013 AIR CC 2497 (ALL), (2013) 129 ALLINDCAS 304 (ALL), 2013 (5) ALL LJ 248, AIR 2013 (NOC) (SUPP) 1322 (ALL.), (2013) 98 ALL LR 739, (2013) 4 CIVLJ 506, (2013) 4 ALL WC 3877, 2013 (6) ADJ 8 NOC
Bench: Sunil Ambwani, Bharat Bhushan
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 11.04.2013 Judgement delivered on 9.5.2013 Court No. - 29 Case :- FIRST APPEAL No. - 1011 of 2012 Petitioner :- Irshad Alam Respondent :- Isma Alam Petitioner Counsel :- R.D.Tiwari,M.D.Singh'Shekhar' Respondent Counsel :- Ritvik Upadhya CONNECTED WITH Case :- FIRST APPEAL No. - 1005 of 2012 Petitioner :- Irshad Alam Respondent :- Isma Alam Petitioner Counsel :- R.D. Tiwari,M.D. Singh Shekhar Respondent Counsel :- Ritvik Upadhya,A.G. Karunakaran,Ritwik Upadhyaya,Vivek Mishra Hon'ble Sunil Ambwani,J.
Hon'ble Bharat Bhushan,J.
(As per Hon. Bharat Bhushan, J)
1. These two appeals under Section 19 of the Family Courts Act have been filed by the appellant-husband against the judgment and order dated 20.11.2012 passed by the Principal Judge, Family Court, Kanpur Nagar whereby the application filed under Section 25 of the Guardianship and Wards Act by the appellant-husband being Misc Case No. 50/70 of 2009 was rejected and the application filed by the defendant-wife under Section 25 of the Guardianship and Wards Act being Misc Case No. 26/70 of 2009 was allowed with directions that the Master-Irish (minor) shall be in the custody of her mother till he attains majority and further the appellant-father was directed to give the custody of minor daughter namely Km. Urooz aged about 8 years to her mother Isma Alam, the respondent wife.
2. The brief facts, which are relevant for disposal of these appeals, are recapitulated as under:
3. The marriage of appellant-husband and defendant wife was solemnized on 11.8.1998 according to Muslim rites and customs at Kanpur. After the marriage, the wife stayed at her husband's house happily and out of the said wedlock and cohabitation one male child namely Iris Irshad Alam was born on 13.11.2002 and a female child namely Urooj Irshad Alam was born on 5.12.2005. On 17.12.2008 the respondent wife left her matrimonial home along with her male child on account of matrimonial discord between them and thereafter she did not return. The appellant husband even went to the extent of making allegations of character assassination against his wife. The appellant husband allegedly used to abuse the respondent wife and vice versa and they were reportedly indulged in beating each other very often.
4. On 19.12.2008, the appellant husband gave 'Talaq' to the plaintiff-respondent wife and fatwa of ''Talak' was issued by the 'kaji' and notice of 'Talaq' was sent to the respondent wife through registered post. After the 'Talaq', the appellant husband is stated to have filed a suit for the declaration of divorce being suit no. 1294 of 2010, which was decided ex-parte in favour of the appellant husband vide order dated 15.7.2011. It was held that the 'Talaq' was given in presence of the witnesses and according to ''Shariyat'. The said decree has become final as it has not been challenged any where in any proceedings by the respondent wife.
5. In between, the appellant husband re-married another muslim lady on 17.5.2009 according to the Muslim customs. Differences between the appellant- husband and his first wife ultimately resulted into decree of divorce in favour of the plaintiff-husband. Thereafter husband filed petition under Section 25 of the Guardians and Wards Act, 1890 (for short as "'1890 Act'") being Petition No. 50/70 of 2009 seeking custody of the male child Iris Irshad Alam who had been taken away by the respondent wife at the time of leaving the house. The respondent wife objected to this claim of custody of the male child by filing objections and simultaneously she also filed a petition being Petition No. 26/70 of 2009 under Section 25 of the '1890 Act' for the custody of the female child namely Urooj Irshad Alam who was left at the house of the appellant-husband at the time of her departure from matrimonial home.
6. Both the petitions filed under '1890 Act' were clubbed together and the petition No. 50/70 of 2009 was made the leading case by the court below. The parties led their evidences. The appellant-husband appeared as P.W-1 and the respondent wife appeared O.P. W.-1 and she also produced one private detective namely Kirtikesh Kavi as O. P. W.-2 whose testimony was rejected by the court below.
7. In the meantime, during the proceedings of the case under Section 25 of the Act 1890, the court below passed orders dated 4.12.2009 and 17.9.2009 that the respondent wife would not take away the male child Iris Irshad Alam out of the city of Kanpur. Despite the aforesaid orders, the respondent wife took away the male child Irish Irshad Alam out of the city of Kanpur to Faridabad and thereafter to Delhi. Aggrieved with the disobedience of the order passed by the court below, by the respondent wife, the appellant husband filed a contempt petition before the Family Court, which is still pending.
8. Thereafter, the appellant husband moved an interim applications (6 Ga) dated 15.6.2009 and (16 Ga) dated 28.5.2009 under Section 12 of the '1890 Act' seeking interim custody of the male child who had attained the age of 7 years on which objections were filed by the respondent wife stating that the said application was not maintainable. The court below after hearing allowed the application for interim custody vide order dated 4.12.2010 and directions were issued to hand over the custody of male child in favour of the appellant husband. This order, was, however, challenged by the respondent wife before this Court in Writ C No. 6412 of 2011 (Isma Alam Vs Irshad Alam) and this Court vide order dated 2.2.2011 stayed the effect and operation of the order dated 4.12.2010 and direction was issued to the court below to finalize the proceedings under Section 25 of the '1890 Act' within a period of six weeks.
9. It will not be out of place to mention here that in petition No. 26/70 of 2009 filed by respondent wife under Section 25 of the '1890 Act', she moved an application (6Ga) dated 15.6.2009 and application 16-Ga) dated 28.5.2009 requesting the court below to permit her to meet female child Urooj Irshad during the court proceedings. The court after hearing the objections of both the sides disposed of the said applications vide order dated 4.12.2009 saying that there is every likelihood that the hearing of case under '1890 Act' will take some more time though the court is expected to decide the case early. Directions were issued that the respondent-wife shall have the visitation rights with regard to the minor female child. She could meet the child once in a month in the presence of the appellant-husband on an undertaking that there will be no breach of public peace by either parties.
10. Thereafter, the court below proceeded to pass a detailed composite interim order 20.11.2011 in the petitions filed by the appellant-husband and the respondent wife under Section 25 of the '1890 Act', which is subject matter of challenge before this court in the present appeal.
11. Before final hearing this court explored the possibility of settlement between the parties. With the consent of counsel for the parties the matter was taken up on 5.2.2013 in Chambers. We talked to both the children separately. To us, they appeared to be quite intelligent and happy. We also talked to father and mother separately and also in the presence of their counsel. Amicable settlement was not possible.
12. We have heard Sri V.C. Mishra, learned Senior counsel assisted by Sri A.G. Karunakar, learned counsel for the appellant and Sri V. K. Upadhyaya, learned counsel assisted by Sri Ritvik Upadhyaya, Advocate appearing on behalf of respondents and have perused the impugned judgement and the material on record.
13. The said impugned order has been challenged by the appellant-husband inter-alia on the grounds that the impugned order has been passed absolutely ignoring the provisions of the Mohammedan Law, particularly, in violation of Article 352, 354 of Chapter XVIII of the Mulla's Mohammedan Law which deals with the guardianship of persons and property. He further submits that according to Article 354 of Mulla's Mohammadan Law if the mother goes and, resides during the subsistence of the marriage at a distance from the father's place of residence she loses her right to the custody of her child. However, the mother has a right of 'hizanit' i.e. the right of custody of her children which lasts up to the age of seven years in the case of a male child and until the age of puberty in the case of female child. He further submits that this right of 'hizanit', that is of custody, is lost if she lives separately.
14. It is also contended by learned counsel for the appellant-husband that the court below has failed to consider the provisions of Rule 151 of Chapter XIV of the Mohammedan Lal wherein it is provided that a non Mohammedan could not be a guardian as in the present case, the respondent wife had admitted in cross examination dated 28.3.2011 that one Praveen Singh is guardian.
15. It is further contended that the Court below while passing the impugned judgement and order under Section 25 of the '1890 Act' has failed to consider the welfare of the minor children which is an important factor while ordering custody of the minor children as the respondent wife, is unable to show any residential accommodation or any source of income. The court below while assessing the income of wife has placed reliance on the fact that the respondent wife is working as a Director in a Firm A.I.P. Techno Consultants Private Limited. The authorised capital of the said firm is only Rs. 1 Lac and therefore the finding arrived at by the court below regarding the income of the respondent wife is based on surmises and conjectures and hence the impugned order is liable to be set aside by this Court on this score as well.
16. Refuting the submissions made by learned counsel for the appellant, it is submitted by learned counsel for the respondent wife that it is wrong to say that the respondent wife left her matrimonial house together with male child out of her own free will. The correct facts are that the respondent wife had lodged an FIR under the Domestic Violence Act and in pursuance thereof the appellant husband was arrested and thereafter managed his bail. Her situation at Kanpur had become untenable. She apprehended danger to her and her child. Thereafter, she escaped out of Kanpur fro her safety and peace. It is further stated that the 'Talaq' given by the appellant husband was not in accordance with the ''Shariyat' and therefore has never been accepted by the respondent wife. The photographs produced by the appellant have been doctored tactfully only to influence the courts. The court below has rightly assessed the financial status of the respondent wife. The court below has correctly passed the impugned order after considering the evidence led before it and has rightly came to the conclusion that the custody of the children should remain with mother i.e. the respondent wife.
17. In the circumstances of the present case, the only short question arises for consideration in these appeals is as to whether the father or the mother should have the custody of a male and female child?
18. Before proceeding further, it will not be out of place to have a birds eye view upon the relevant provisions of personal law as well as some provisions of the Guardians and Wards Act, 1890.
19. The custody of a minor child in Islam is called 'Hizanit', which literally means the care of the infant (custody). As per the Shariat that applies to Muslims, the father is considered to be the natural guardian of his children irrespective of sex, but the mother is entitled to the custody of her son till the age of 7 years and of her daughter till she attains puberty. Thus, under the Muslim law a male would attain majority when he reaches the age of 7 years and a female would attain majority on attaining puberty. Mulla, a well known author, in his commentary on Mohammedan Law has specified the grounds when a female becomes disqualified for the custody of a child under Section 354. These have been set out as under :
Article 354. Females when disqualified for custody:- A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody-
"(1) if she marries a person not related to the child within the prohibited degrees (Sections 260-261) e.g. a stranger, but the right revives on the dissolution of the marriage by death or divorce; or (2) if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence; or (3) if she is leading an immoral life, as where she is a prostitute; or (4) if she neglects to take proper care of the child."
20. It is, difficult to concede the contention of the learned counsel for the appellant husband that the right of 'Hizanit', that is of custody, is lost in all eventuality if she lives separately during the subsistence of marriage. The question of custody of the minor would generally arise in a case when she is either living separately or has been divorced. We are here dealing with the case of a divorced wife whose life has been in turmoil. It is normal and natural for a divorced wife to reside separately and away from the husband and so long as it is not demonstrated that general supervision of the child to which the father is entitled as the natural guardian has become impossible, in our opinion, the mother cannot be deprived of the right of ''Hizanit'. Moreover, as has been repeatedly stressed in the conflict of rival claims put forward by the father and the mother with regard to the custody of children of tender ages based on their respective rights under the personal law, the interest of the children cannot be sacrificed.
21. The Guardians and Wards Act, 1890, is another enactment that regulates and governs the law relating to appointment and declaration of guardians; duties, rights and liabilities of guardians and all laws relating to the Guardians and Wards. Section 17 of the '1890 Act', stipulates the paramount consideration in deciding the guardianship would be the welfare of the minor child and therefore, there could be no hard and fast rule to follow the statute for the purpose of deciding the guardianship. For appreciation, the provisions of Section 17 of the Act, 1890 is quoted as under:
Section 17. Matters to be considered by the Court in appointing guardian.- (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions 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 of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(4) ..............................
(5) The Court shall not appoint or declare any person to be a guardian against his will.
22. Thus, according to the said provision, the welfare of the minor should be considered as paramount consideration. Section 25 of the Guardians and Wards Act, 1890 refers to the title of guardian to custody of ward, which reads as under:-
Section 25 in The Guardians And Wards Act, 1890:
25.Title of guardian to custody of ward.- (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2)For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882 ).
(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.
23. From the aforesaid, provision, it is evidently clear that to invoke the provision of Section 25, two conditions must be satisfied. Firstly, either the ward should leave or is removed from the custody of the guardian of his person, and secondly, the Court should come to a conclusion, in the welfare of the ward, to return to the custody of the guardian, it may make an order of return of the ward to his/her custody
24. Here, in the present case, the court below has considered the question as to whether the husband/wife are able to maintain the welfare and interest of the children and what is their income?
25. The court below in its judgement has stated that the appellant husband has filed contradictory evidence with regard to his income. In his cross examination, it is admitted by him that he has no source of income and due to the loan taken on account of his loss in business several criminal proceedings have been launched against him and due to lot of pressure he is absconding from his house. In the circumstances, the court below came to the conclusion that there might be a problem in getting the female child educated due to loss of business and on account of criminal proceedings and looking to the circumstances, it will also not be in the welfare and interest of the male child to hand over his custody to his father.
26. We have examined the rejoinder affidavit filed by the appellant husband dated 15.1.2013 and the oral testimony rendered by him before the family Court, Kanpur. They do reveal that the appellant husband Irshad Alam is facing financial hardships and is facing CBI investigation. He has also invoked the jurisdiction of Court against the notice of C.B.I. under Section 160 Cr.P.C. It is also apparent that the Bank of Baroda has proceeded against the appellant husband before the Court of Debt Recovery Tribunal IIIrd Delhi. The Bank has also seized the Foreign Exchange Packing Credit Limit of appellant husband Irshad Alam. Some of these facts have been admitted by the appellant husband during his testimony before the Trial Court. It has also been stated that the appellant husband also tried to evade the criminal investigation and went into hiding. All these facts cannot be ignored while the custody of minor children is being considered.
27. In our opinion, the stability and security of the child is also an essential ingredient for a full development of child's talent and personality. As recorded by the court below in his judgement after appreciation of detailed evidence. In the cross-examination, respondent wife admitted that she is a Director in a firm namely AIP Techno Consultant Ltd and her salary is Rs. 80,000/ per month. Admittedly, she is living with her male child at Faridabad and getting him educated in a renowned school. Evidently, she is taking good care of her child.
28. The question that emerges is whether the Muslim personal law (Shariat) would be applicable to a proceeding under the Guardianship Act. Section 6 gives scope for the application of the personal law to which the minor is subjected to. Further Section 17 of the Act, 1890 also stipulates that a guardian has to be appointed in consonance with the personal law by which the parties are governed.
29. The said legal proposition was amply dealt with by the Hon'ble High Court of Delhi in Akhtar Begum vs Jamshed Munir, AIR 1979 Delhi 67, which held that the personal law of the parties has to be kept in view in deciding an application for custody by virtue of the mandate of Section 6 of the Act.
30. Although the personal law of the parties is to be taken into consideration while deciding the custody of the child, the welfare of the child is of paramount importance and must be the deciding factor. At the same time the personal law cannot be completely sidelined as the personal law would be an important facet of the welfare of the child and must also be taken into consideration.
31. So far as the argument of learned counsel for the appellant-husband that the court below has failed to consider the provisions of Rule 151 of Chapter XIV of the Mohammedan Law stating that a non Mohammedan could not be a guardian as according to him, the respondent wife has admitted during cross examination that one Praveen Singh is acting as their guardian, we have gone through the cross examination of respondent wife and found that she has merely stated that the said Praveen Singh, who is posted as Addl. Director General of Police, Faridabad is known to her for the last fifteen years and he acts as a local guardian during her stay at Faridabad. The said person did not come across the appellant-husband at any point of time during that period, and they do not know each other. It is apparent that the respondent wife used the term "local guardian" in a broader sense. After her separation from her husband she went to live at Faridabad. Mr. Praveen Singh is a police officer and she apparently used his position for her own and her child's protection. The evidence clearly reveals that Mr. Praveen Singh is not a guardian of either Isma Alam and her child in any religious or legal term. He was merely providing a succour to distraught wife and her child. The argument of learned counsel for the appellant husband cannot be accepted that by seeking help of Mr Praveen Singh, senior police officer she has disentitled herself to the custody of her child. Under the circumstances, the argument of violation of Mohammedan Law is unsustainable for the simple reason that the welfare of the child is of paramount importance and cannot be over-ruled by any other considerations.
32. On this question a Division Bench of this Court in Mt. Sakina Begum Vs Malka Ara Begum, AIR, 1948 All 198 had thus to say :
"According to the Hanafi law, as between a mother and a father, the mother has a preferential claim to the custody of their children. It cannot be laid down as an absolute proposition that she loses the right of custody if she goes and resides at a distance from the father's place. 'It all depends upon circumstances. If the stay is only temporary or forced or is due to circumstances beyond her control, it is difficult to hold that she should even then be deprived of the custody of her own children. She loses the right of custody of her children only if she has any defect of character such as would render her unfit to have the custody of her own child".
33. However, in custody matters, it has been consistently held by the courts that the welfare of child is of paramount consideration. Supreme Court in Mausami Moitra Ganguli vs. Jayanti Ganguli AIR 2008 SC 2262, observed;
"The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration."
34. In Rosy Jacob Vs. Jacob A. Chakramakkal, (1973) 1 SCC 840 a three- Judge Bench of the Hon'ble Supreme Court has observed that the children are not mere chattels; nor are they mere play-things for their parents. Absolute right 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 and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. Further in case of a conflict or dispute between the mother and the father about the custody of the minor the court has to adopt a somewhat different but more pragmatic approach. No doubt the father may have a legal right to claim the custody of the child but at the same time fitness of father has to be considered, determined and weighed predominantly in terms of the welfare of the minor. If it is found that the father cannot promote the welfare equally or better than the mother, he cannot claim indefeasible right to such custody. Merely father's fitness to maintain the minor cannot override consideration of the welfare of the minor. Statute has presumed that the father is generally in a better position to look-after the minor being the head of the family earning bread for it. In any case it has to be seen primarily the welfare of the minor while determining the question of his custody. But merely because the father agrees to maintain the minor showing all affection would not necessarily lead to the conclusion that the welfare of the minor would be better promoted by granting custody to him. The mother may be equally affectionate towards the minor. If she is possessed of requisite financial resources, she would be always in advantageous position of guaranteeing better health, education and maintenance for the minor.
35. In the case of Mohammed Khalid Vs Smt Zeenat Parveen and others, AIR 1988 All 252 a similar view was taken. It is well established that in a proceeding under the Act for the custody of a minor it is the welfare in the widest sense of the term that is to be considered, though the father as natural guardian may have a prima-facie right to a minor's custody. It can be negatived if minor's welfare lies in keeping him in the custody of his mother. Merely because the father is the natural guardian under the personal law applicable to him, the custody of the minor cannot be entrusted to him having in mind overall consideration of his physical and material well being, education, up-bringing, happiness etc., the dominant consideration shall be the interest of the minor than the claims of the rival parties. Ordinarily, the mother is the most competent and suitable person to protect the interest of the minor and safeguard his welfare. To the affection and love of a mother there is no substitute. Universal phenomenon and human approach have acknowledged that the mother's affection for the child is unparalleled.
36. Admittedly, in the present case, the respondent wife was divorced by the appellant husband after consummating marriage for about ten years. The two minor children were born out of the said wedlock till the time of the divorce. They were of tender age at the time of divorce. When the relations between them became strained, the respondent wife lodged a complaint under the Domestic Violence Act and out of the fear and apprehension the respondent wife left her matrimonial home along with her male child aged about 6 years. Her apprehension could not said to be totally misplaced. Apprehension and fear are partly matter of perception as well.
37. The respondent wife has brought up the male child throughout showering affection and protecting his welfare. She has looked after him and ensured his education in a reputed school for better education and maintaining him to his utmost. She is a Director in a Private Firm and is earning Rs. 80,000/- per month. The appellant husband on the other hand is a businessman as admitted by him also in his cross examination and is facing financial difficulties. He may be having sufficient resources to maintain the child but that alone does not mean that the welfare of the minor would be better served by granting custody of children to him. The respondent-wife is an educated lady with sufficient income to look after the welfare of both her children.
38. Another aspect of the matter is that after divorcing the respondent wife, admittedly the appellant husband has remarried a young lady and out of the said wedlock he has a daughter. The love and affection of second wife towards the minor child of his first wife is divided and may gradually diminish. The children of the first wife may also feel left out and neglect. The Court cannot keep close eye to the vicissitudes of such a situation. Human frailties have resulted in causing miseries to such minors. In a proceeding under Section 25 it is well established by a series of judgements that it is not the legal claim of guardianship of the minor which is of importance but the welfare of the minor, which is of predominant consideration.
39. In Smt Ajnunnisa Vs Mukhtar Ahmad and another AIR 1975 Allahabad 67 it was held that where a minor aged about 10-11 years is in the custody of his mother and has intelligently exercised his preference to continue to stay with her, his custody cannot be disturbed and be given to his father though he is legal guardian of the minor in the personal law (Mohammadan Law). A mere claim to legal guardianship in such a situation will not stand on a higher footing than the claim of the real mother to continue to have the custody of the minor who has remained in her custody since the birth of the child.
40. In Mt. Haliman Khatoon Vs Ahmadi Begum and others, AIR 1949, Alld. 627 it was held that the mother imparts natural affection. Her natural affection for her children cannot be substituted and replaced by any one else.
41. Hon'ble Apex Court in 2008 SC 1566: Nil Ratan Kundu & Another Vs. Abhijit Kundu, it has held as under:
"The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of child contained in either the Guardians or Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section13) also hold out the welfare of the child are predominant consideration. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the cases are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration."
42. In view of the aforesaid discussions of facts and law and keeping in view the paramount consideration of the welfare of the children, we are convinced that children's interest and welfare will be best served if they are in the custody of the mother. In our opinion, it is not desirable to disturb the custody of male child. It is also desirable that the custody of the female child is given to her mother. Therefore, the order of the court below in giving the exclusive custody of the male child till he attains majority and of female child to the mother deserves to be maintained.
43. Thus on a consideration of all the facts and circumstances of the case and the legal position, as discussed above, we are of the opinion, that the judgement and order of the court below does not suffer with any material irregularity or illegality in entrusting the minors to the custody of their mother, the respondent wife.
The First Appeals fail and are dismissed.
Order Dated: 09.05.2013
RavindraKuSingh
(Justice Bharat Bhushan) (Justice Sunil Ambwani)