- (1.) Heard learned Counsel for the appellant and perused the record. Perhaps one of the most crucial issues that comes up after getting a divorce is the matter of child custody, so is in the instant case where the appellant has approached this Court assailing the judgment and order dated 20.08.2015 passed by the learned Principal Judge, Family Court, Ambedkar Nagar in Case No.4 of 2014 (Akbal Ahmad v. Jamila Khatoon and another), under Section 7/25 of the Guardians and Wards Act, 1890, when the claim of the appellant for custody of his minor children has been refused. The appellant has challenged the aforesaid judgment and order dated 20.08.2015 inter-alia on the ground that the findings recorded by the Family Court are perverse and contrary to the materials available on record . The contention of the appellant is that not only the mother but also the other members of his in-laws are not well-educated and they have also no knowledge about the modern and technical education. In these circumstances, they would not be able to provide better education to his minor children, namely, Sahista Sana (aged about 7 years) and Wahisatunnisha (aged about 3 years). It has also been asserted that there is no educational atmosphere in house of his in-laws which would have adverse impact on the children. According to the appellant, he is in better position to provide best education to his minor children but as they were taken away, by his wife, the studies of the children are hampered. Being natural father, he is entitled for the custody of the children so that their educational career may not suffer any further.
(2.) The Guardians and Wards Act, 1890, is the 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 Guardian and Ward. As per Section 4 of the Guardians and Wards Act, 1890 a minor is a person who, under the provisions of the Indian Majority Act is deemed not to have attained the age of majority. As it is well known that the age of majority for a person in India has been defined under Section 3 of the Indian Majority Act, 1875 stipulates "that every person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before". Thus on the face of it an inference is drawn that all persons are considered minors if he or she has not attained the age of 18 years. Further the Hon'ble High Court of Delhi while dealing with a habeas corpus petition in Mohammad Nihal v. State (decided on 8th July, 2008) has taken the aid of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 which states that, regarding matters pertaining to succession, inheritance, marriage, divorce, guardianship, etc, where the parties are Muslims, the Muslim Personal Law (Shariat) shall be applicable. The Hon'ble Court has held that, "if some doubt prevails pertaining to the applicability of Shariat laws in guardianship matters, it stands clarified by virtue of Section 6 of the G&W Act. When a court is called upon to determine the welfare of a minor so far as appointment of a guardian is concerned, this exercise will have to be determined in consonance with Shariat Law". The Hon'ble Court further reiterated that in consonance with section 2 of the Majority Act which states that its provisions do not impact on matters of marriage, dower, divorce and adoption, the Indian Majority act cannot be looked into while ascertaining the age of a minor and the personal law of the parties would be the driving factor. Where the husband and wife are living together, the child must stay with them, and the husband cannot take the child away with him, nor can the mother, even during the period that she is entitled to the custody of the child, take it away without the permission of the father. Where the child is with one of the parents, the other cannot be prevented from seeing and visiting it. The term 'Guardianship' (Wilayat ) connotes the guardianship of a minor. Guardianship of a minor person means an overall supervision of the minor's personality. It means care and welfare of the child including the liability to maintain it. It is more than simply custody of the child upon a certain age. Under Muslim law, it is called HIZANAT. Although mother is not the natural guardian of the child but she is entitled (1) in Hanafi law to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty and (2) According to Shiah Ithna Ashari Law, the mother has the right to the custody of a male child until he attain the age of two years and of a female child until she attains the age of seven years. In Shiah Ithna Ashari law after the child attains the age, as stated above, the father has the right to the custody of the child. In the absence of either the father or the mother, the other parent has the right to the custody of a minor child, whatever its sex and age. Hence the maternal grandmother cannot, if the parties are governed by Shiah law, claim the custody of a female child 3 years old, during the lifetime of the father.
(3.) Under the Hanafi law in the absence, or on the disqualification, of the mother, the custody of the child-until, being a male, he has attained the age of seven years, or being a female, she has attained puberty-belongs to (1) the mother's mother;(2) the father's mother(3) the mother's grandmother how high-soever (4) the father's grandmother how high soever (5) the full sister and (6) the uterine sister. It may be clarified that a mother is the de facto guardian. She cannot execute a waqf on behalf of the minor as she has no right to alienate minor's property unless appointed as a guardian by Court. To begin with, one has to bear in mind that there are two types of guardianship over a minor: - 1.Wilayah or guardianship of the property and education and marriage of the ward 2.Hizanah or guardianship over the rearing and bringing up of the child. Further, the Guardians are appointed in the following manner: - 1. by natural right, or 2. by testament, or 3. by appointment by a judge Neil B.E. Baillie in his 'Digest of Moohummadan Law', which is a condensed presentation of the Hanafi code of jurisprudence (Fatawa-e-Alamgiri-page xxxiii of the Introduction), treats these three methods of appointment in this way: "Of Guardians there seems to be two kinds the lineal and the testamentary guardian. The powers and duties of the former are limited to the marriage of his ward, and of the latter to the care of his person and property. The testamentary guardian does not appear to be distinguished from the ordinary executor. No executor has authority to contract minor in marriage, unless he happens to be the lineal guardian also." ;