RIZWANA BEGUM @ PAPPOO Vs. NOOR AHMAD

JUDGEMENT

(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.

(3.) I have considered the rival submissions and perused the impugned order.