D.S.Sinha - (1.) HEARD Sri Triveni Shanker, learned counsel for the appellant, at length and in detail.
(2.) IT cannot be gainsaid that in the matter of grant of interim custody of a minor the supreme consideration has to be the welfare of the minor. In the instant case parties are Mohammedans and governed by Mohammeden Law. According to Mohammedan law, the mother is entitled to the custody of her male-child until the child attains the age of 7 years and of her female child until she attains puberty. Here we are concerned with male-child who is, indisputably, below 7 years. The court below has rightly come to the conclusion that the care, affection and love, which mother can provide to the child cannot be provided by father, the appellant. The court below has further noticed a special circumstance, namely, the factum of breast-feeding to the child by mother. On the facts and for the reasons noticed by the court below, it cannot be said that the welfare of the child lies in allowing him to go into the custody of his father. The only consideration in the matter of grant of custody of minor has to be the welfare of the minor irrespective of legal right of a party for guardianship of the minor. All other considerations must yield and be assigned subordinate position. Viewed from this angle, the impugned order directing the interim custody of the minor, Musir Ahmad alias Vikki, to be handed over to Shamim Begum, the opposite party, cannot be disturbed.
(3.) THE appeal lacks merit and is, therefore, dismissed summarily. Appeal dismissed.;