Rajes Kumar, J. - (1.) HEARD Sri T.A. Khan, learned counsel for appellant and Mohd. Islam, learned counsel appearing on behalf of the respondents. This is an appeal by the mother, Faraz Ahmad against the order dated 30.8.2006 passed by Additional District Judge, J.P. Nagar, by which the petition filed by the respondent/father has been allowed and Noor Ahmad has been appointed as guardian and a direction has been issued for giving custody to him.
(2.) LEARNED counsel for the appellant submitted that out of the wedlock of the appellant and the respondent, Faraz Ahmad was born on 20.10.1997. Due to some dispute, the marriage ended in divorce on, 7.10.2002. From the wedlock of the appellant and the respondent, Faraz Ahmad and one daughter, Shumaila were born. After the divorce, Faraz Ahmad was in the custody of the appellant and Shumaila was in the custody of the father. Faraz Ahmad was aged about five year when the divorce took place. After the divorce, Noor Ahmad remarried and from the second wife three children were born. He submitted that in the circumstances, the welfare and interest of minor, Faraz Ahmad can more appropriately be looked after by the appellant. He submitted that Faraz Ahmad, who is now aged about 15 years old appeared before the Court on 16.2.2012 and on the query being made by the Court he desired to live with his mother, Smt. Rizwana Begum. The Court below has allowed the application of Noor Ahmad on the ground that the legal provision does not permit to give the custody to the mother, which is patently illegal. He submitted that it is true that under the Muslim Law upto the age of seven years, the mother is entitled for the custody of the minor and after the age of seven years, the father is entitled for the custody of the minor but there is no provisions under Muslim Law for the appointment of the guardian. He submitted that under the Guardian and Wards Act, 1890 (hereinafter referred to as the "Act") is Central Act and Section 7 of the Act provides the power to the Court to appoint the guardian for the welfare of the minor. Therefore, irrespective of the provision under the Muslim Law even after the age of seven year, father is entitled for the custody of the minor but under the Guardian and Wards Act, 1890 the Court can appoint any person as guardian other than the natural guardian as provided under the Personal Law for the welfare of the minor. He submitted that on the facts and circumstances, the welfare of the minor is with mother. Mohd. Islam, learned counsel for the respondent submitted that Section 6 of the Act provides that in the case of minor, nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his persons or property or both, which is valid by the law to which the minor is subject. In the present case, the minor is subject to the Muslim Law and under the Muslim Law, father is entitled for the custody of minor, therefore, the provisions of Guardian and Wards Act does not apply and no one else can be appointed as guardian. He further submitted that under Section 19 of the Act, the Court is not authorized to declare a guardian of minor whose father is living and is not in the opinion of the Court, unfit to be guardian of the person of the minor. In the present case no finding has been recorded that father is unfit to be guardian of minor and in the absence of any such finding, mother cannot be appointed as guardian.
(3.) I have considered the rival submissions and perused the impugned order.;