JUDGMENT B.M. Lal, J. 1. This revision is directed against the interim order passed by the First Additional Judge to the Court of District Judge, Bhopal in M.J.C. No. 73 of 1989 on 12-1-1990, in an application under Section 15 of the Guardian and Wards Act. 2. The short facts leading to this revision are as under : Applicant Shabana Minhaz and the non-applicant Shakil Ahmed Qureshi were wedded at Bhopal on 29-12-1981. They lived together happily as husband and wife and out of the said wed-lock, a male child named Kumel Shakil alias Umar Shakil was born on 15-12-1982. After some time, their relations became stranded and the wife started living with her parents alongwith the child. 3. A similar application under Section 25 of the Guardian and Wards Act was filed vide M. J. C. No. 50/84 before the First Additional Judge to the Court of District Judge, Bhopal and the same was decided on 13-9-1984, against which a Misc. Appeal No. 1/85 was filed by the present applicant Mst. Shabana Minhaz against her husband, non-applicant herein. This Court by order dated 3rd May 1985 directed the custody of the child to the mother Mst. Shabana Minhaz taking into consideration the paramount welfare of the child. Besides this, specific provision of Section 352 of the Mahomedan Law reads as under : "Section 352 : Right of Mother to custody of Infant Children. The mother is entitled to the custody (hizanal) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father." 4. This fact is not disputed that the divorce had taken place between the spouse. However, because the infant child was below seven years, therefore, this Court in M.A. referred to above directed custody of the infant to the appellant Shabana Minhaz. In the month of March 1989, Mst. Shabana entered into a second marriage and is now residing at Delhi with her husband Khalid Minhaz. In between, the non-applicant Shakil Ahmed Qureshi has taken the custody of the child and since then, he is with him. The infant child Kumel Shakil is also more than seven years old now.
In the month of March 1989, Mst. Shabana entered into a second marriage and is now residing at Delhi with her husband Khalid Minhaz. In between, the non-applicant Shakil Ahmed Qureshi has taken the custody of the child and since then, he is with him. The infant child Kumel Shakil is also more than seven years old now. This being so, in view of the provision of Section 354, the applicant herein is disqualified for the custody of child. Section 354 of the Mahomedan Law reads as under : "Section 354: Females when disqualified for custody--A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody-- (1) if she marries a person not related to the child within the prohibited degrees e.g. a stranger but the right revives on the dissolution of the marriage by death or divorce; or, (2) if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence; or, (3) if she is leading an immoral life, as where she is a prostitute; or, (4) if she neglects to take proper care of the child." 5. In the instant case, provision of Sub-clauses (1) and (2) of Section 354 of the Mahomedan Law fully attract the facts of this case. The applicant Shabana Minhaz married second time and resides at Delhi, which is admittedly at a far distance from the father's place of residence. Under these circumstances, where the mother remarries, the custody of the child comes back to the father, in view of the provisions of Section 357 of the said Act (Mahomedan Law), Section 357 of the Mahomedan Law reads as under: "Section 357 : Right of Father and Paternal Male Relations to custody of Boy over seven and of Girl who has attained puberty. The father is entitled to the custody of a boy over seven years of age and of an unmarried girl who has attained puberty. Failing the father, the custody belongs to the paternal relations in the order given in Section 355 of the Act and subject to the proviso to that section.
The father is entitled to the custody of a boy over seven years of age and of an unmarried girl who has attained puberty. Failing the father, the custody belongs to the paternal relations in the order given in Section 355 of the Act and subject to the proviso to that section. If there be none of these, it is for the Court to appoint a guardian of the person of the minor." This provision is emphatic which envisages that for the boy who is above seven years of age, right of father accrues in relation to the custody of the child. 6. Learned counsel Shri Fakbruddin, appearing for the applicant, contended vehemently that prima-facie in such cases, the paramount welfare of the child is always to be taken into consideration. True it is, it cannot be denied. The welfare of the child is a paramount consideration but the specific provisions of the law by which the parties are governed cannot be ignored. Besides nothing has been brought on record to suggest that the paramount consideration for the welfare of the child is being ignored or neglected by the father of the child. Simply it has been suggested that the father has decided to reside at Bombay and, therefore, possibility of the child's welfare being neglected cannot be over-rules. This argument is based on imaginations. No concrete example has been brought on record to substantiate this argument. 7. Learned counsel for the applicant cited a decision AIR 1988 A.P. 275 (Sheela v. Jeevanlal). This decision deals with the provisions of the Hindu Guardian and Wards Act where the provisions as compared to Mahomedan Law are poles apart, except in all the cases where question of guardianship of an infant is involved, the paramount consideration is to see the welfare of the child. But this decision has no application to the facts of the case. 8. From the discussion aforesaid, this appeal has no force and is dismissed. There shall be no order as to costs.