YASMEENA AKHTER Vs. NISSAR AHMAD WANI
LAWS(J&K)-2020-9-42
HIGH COURT OF JAMMU AND KASHMIR
Decided on September 28,2020

YASMEENA AKHTER Appellant
VERSUS
Nissar Ahmad Wani Respondents


Referred Judgements :-

RADHEY SHYAM VS. CHHABI NATH [REFERRED TO]
SEEMA VS. SANJEEV GODHA [REFERRED TO]


JUDGEMENT

Sanjay Dhar,J. - (1.)Instant appeal is directed against the order dated 22.02.2020 passed by learned Sub Judge, Chadoora (with powers of District Judge under Guardian and Wards Act), whereby the learned trial court while deciding the matter relating to interim custody of minor son of the parties in terms of Section 12 of Guardian and Wards Act, directed that custody of the minor shall remain with respondent herein (father) for two days in a fortnight whereas for rest of the days of the month the custody of the minor shall remain with the appellant herein (mother).
(2.)In the appeal it is contended that the parties entered into a wedlock in November, 2015, out of which one male child, namely, Mohammad Anas was born on 17th of March, 2017. It is averred that due to matrimonial discord between the parties, the appellant (wife) left the company of respondent (husband) and started living separately with her parents since 18th June, 2019. It is alleged that the respondent, in order to defeat the petition of the appellant filed under Section 488 of Jammu and Kashmir Criminal Procedure Code for grant of maintenance, made a petition under Section 25 and 12 of Guardian and Wards Act before the trial court seeking custody of the minor son. The said petition was contested by the appellant before the trial court by filing objections thereto and the learned trial court, on 22.02.2020, passed an order under Section 12 of the of Guardian and Wards Act, which is impugned in this appeal.
(3.)The appellant has challenged the order of the learned trial court on the ground that in the interest of minor's welfare, it was necessary that his custody is given to his mother i.e. appellant herein because the minor son is a milk sucking baby. According to the appellant, the said aspect of the case has been ignored by the trial court and the impugned order has been passed without keeping in view the welfare of the minor. It has been further contended that by virtue of the impugned order, the minor has been forced to live with his father for two days in a fortnight and the same will be detrimental to the psyche of the minor. It is also contended that as per Mohammadan law, custody of the minor child has to remain with the mother for seven years and this aspect has been ignored by the learned trial court while passing the impugned order.
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