- (1.) THIS appeal is directed against the order of the District Judge allowing an application under Section 25 of the Guardians and Wards Act of 1890. The respondent No. 1, Mukhtar Ahmad, claiming to be the real father of a male minor named, Mphd. Yusuf, sought for the return of his custody as the guardian of the said minor.
(2.) THE brief facts are these: The appellant, Smt. Ainun Nisa, is the daughter of the respondent no. 2, Mohd. Munir. The appellant was married to the respondent No. 1, Mukhtar Ahmad. In 1962 she was divorced by her said husband and after that divorce the latter remarried another woman from whom he has several children. Smt. Ainun Nisa also remarried one Sheikh Bhullan. There is a minor son of Smt. Ainun Nisa whose name, according to Mukhtar Ahmed, respondent No. 1, is Mohd. Yusuf but according to Smt. Ainun Nisa, the appellant, and Mohd. Munir, the respondent No. 2. his name is Ghani, Mukhtar Ahmad claimed that the said son of Smt. Ainun Nisa was begotten by him. However, the lady denies this allegation and says that the said son is from her second marriage with Sheikh Bhullan and his real name is Ghani and not Mohd. Yusuf as alleged by Mukhtar Ahmad. In fact, Ainun Nisa has denied that she ever lived with Mukhtar Ahmad as husband and wife and, therefore, there was no question of any issue being begotten by Mukhtar Ahmad. It has been further pleaded by the lady and by her father, Mohd. Munir, that in any case, the welfare of the said minor demands that he should continue to reside with his mother and should not be transferred to the custody of Mukhtar Ahmad who has a second wife with him and from whom he has several children. The District Judge, before whom the application under Section 25 was made has held that the minor in question is the son of Smt. Ainun Nisa from Mukhtar Ahmad and not from her second marriage with Sheikh Bhullan. The trial Court reached the said conclusion on the basis of its examination of the oral and documentary evidence. So far as the documentary evidence is concerned, the trial Court has placed its principal reliance upon a notice dated 19-7-1962 which was allegedly issued by Smt. Ainun Nisa to Mukhtar Ahmad applicant. In this notice, there is a statement to the effect that she had gone to her Maika along with her son. The trial Court has said that the document in question had been duly proved on behalf of the respondent No. 1. Mukhtar Ahmad. I do not think that the said finding is correct. The notice dated 19th July, 1962, has not been exhibited. No one has proved the handwriting of the said notice. Mukhtar Ahmad appeared as A. W. 4 and he has only said: "Uske bad Ainun Nisa ki taraf se notice mujhko mili jo kagaz No. 1 fihriest 12 Ga 1 ka hai." This is not proving the handwriting. The notice is in Hindi whereas it has not even been proved that the lady could read and write. Her disputed thumb impressions have been proved and the handwriting expert has been believed on that point. If the lady was affixing her thumb impression on the postal acknowledgment it is not clear how she could pen the notice dated 19-7-1962 in Hindi. This notice has not been sent on her behalf by any counsel but purports to be by the lady herself. It is to be remembered that we are dealing with a case of a Mohammedan lady and the alleged reply is in Hindi. Therefore, I do not think that the trial Court' finding on the question of the paternity of the minor can be said to be completely beyond the pale of doubt. However, I will not discuss this aspect of the matter in detail as I do not propose to base my judgment on this aspect of the controversy, I am basing it on other considerations which I state hereinafter. Even if the minor be held to be the real son of Mukhtar Ahmad, still, in the circumstances of the case, I do not think the trial court was justified in directing that he should be taken away from the custody of the real mother and should be sent to the custody of the father. It is true that the father is a natural guardian of his minor son under the Mohammedan Law. But still, as is too well established to be disputed, in proceedings under Section 25 it is not the guardianship of the minor which is of importance but the welfare of the minor which has to be taken into consideration while deciding about the custody of the minor. In the instant case, the important admitted facts are these :- (1) The minor has, admittedly almost from his birth, lived either with his mother or at the place of the mother' mother and not with the father. (2) The minor was aged about 10 or 11 years when he was examined as a witness in the case and the trial court has clearly recorded that he was intelligent enough to be administered the oath. He clearly expressed his preference to remain in the custody of the mother and refused even to recognise Mukhtar Ahmad as his real father. The boy seems to be fairly intelligent and seems to have an acquaintance with the Kuran from which he recited certain quotations. The trial Court in its judgment says that the boy must have been tutored by the mother, Smt. Ainun Nisa and her present husband, Sheikh Bhullan. Now, this is a pure surmise for which there is no basis. The said Court at another place in the judgment has put the entire blame on Smt. Ainun Nisa. In the impugned judgment it is observed: "She has even tutored the boy to disown his real father, She has again persuaded Sheikh Bullan, namely her second husband, to obviously claim the paternity of the boy." I have not been shown any basis for these conclusions which seem to be pure surmise. Even though the boy may not be believed in regard to his statement that Mukhtar Ahmad is not the father and even similarly Sheikh Bhullan may be disbelieved in regard to the paternity of the boy, still. I do not think that all these acts of commission and omission can be laid at the door of the lady in question. In my view, in the circumstances in which the boy was placed and brought up, could ordinarily lead him to exercise the preference in the manner in which he did. Even if Mukhtar Ahmad as his father, still the minor never lived with him and lived in the custody of the mother or mother' mother. He could not recognise his father in such a situation and it seems to me somewhat odd that a court of law should direct a minor who has been living with his mother or mother' mother since his birth, to be taken away from the said custody and to be given to one who is basically a stranger from him even though he may be a real father. I do not think that in such circumstances the welfare of minor is likely to be better served by disturbing the custody of the minor. To me, it seems somewhat cruel that a boy of tender years should be directed to leave the place where he has passed all his years and go over to the custody of an unfamiliar person even though the person may be the father. In my view, 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 or in the custody of her mother since the birth of the child.
(3.) EVEN though I have said that it is not necessary for me to examine the merits of the finding recorded by the trial Court to the effect that the minor is the son of Mukhtar Ahmad, still, I can draw attention to one aspect of the matter. The said finding is at least debatable and it cannot be said to be an impossibility that factually the finding may not be a correct one. There is at least an off chance that the reality in question may be different from the finding of fact recorded by the court below. The mere fact that there may be such a possibility is sufficient to be taken into consideration in disturbing the custody of the boy. It will be a frightening thing if a person, who is really not the father, succeeds in getting the custody of the minor particularly when the minor is admittedly in the custody of the real mother and has been in such custody since his birth.;