B.D. Agarwal, J. - (1.) THE parties are Mohammedans governed by the Hanafi law. They were married in or about the year 1977. A male child was born during the wedlock in April, 1979. The Respondent applied under Section 25 of the Guardians and Wards Act, 1890 on January 30, 1980 for delivery of the child into her custody alleging that she was expelled from the house by the husband in January 1980 and the child removed from her and, further, that the Appellant divorced her on January 12, 1980 in writing in the from of Talak -i -bain. The application was opposed by the husband but allowed by the learned District Judge on 16th March 1982. It was found upon the evidence recorded in the case that the child was not abandoned by the mother as contended by the Appellant but that she was forcibly deprived of the custody and that in the interest of the welfare of the child he should be restored to the mother's custody. Aggrieved, the father preferred this appeal under Section 47(c).
(2.) WHEN this appeal came up before a learned Single Judge, the Appellant placed strong reliance on a decision of G.D. Sehgal, J. reported in Hasmat Ali v. Smt. Suraya Begam : AIR 1971 All 260. For the Respondent an unreported decision of D.S. Mathur, J. in F.A.F.O. 166 of 1965 Smt. Razia v. Siraj Ahmad decided on 19 -10 -1965 was cited. The learned Single Judge found himself in disagreement with the view taken by Seghal, J. in Hasmat Ali's case (supra) and hence referred the case for decision by a larger Bench. As an interim measure, however, he directed on October 18, 1982 that the child be restored to the Respondent's custody by the Appellant. This is how the case is before us for decision. Learned Counsel for the Appellant contended that being the father the Appellant is the natural and legal guardian of the child. In the absence of any lack of fitness on his part, the mother cannot, it is submitted, apply under Section 25 for custody of the child, and that in case she has any right, the remedy may be in a suit for the purpose.
(3.) THE Respondent's learned Counsel on the other hand referred to the definition of the expression 'guardian' in Section 4(2) of the Guardians and Wards Act and urged that this is wide in scope. Till the child attains the age of seven years, it is argued, the right of hizanat (custody) is of the mother and this is not in conflict with the father being the natural or the legal guardian. The child could not be snatched from the Respondent and she could not be deprived of the custody except under one of the recognized grounds for the same.;