JUDGMENT - R.G. DESHPANDE, J.:---Heard Shri S.V. Varad, the learned Counsel for the appellants and Shri P.V. Mandlik, for the respondent. 2.This matter was called out for hearing on Civil Application No. 502 of 1998 in First Appeal No. 62/98. However, the matter was heard on many occasions and with the consent of the parties ultimately the matter is taken up for final hearing, dispensing with the Paper-book. This First Appeal is being heard finally on merits and is being disposed of as under :- 3.Sheikh Mudassar, a minor at the time of initiation of the proceedings, was below seven years of age, and was in the lawful custody of his mother's mother i.e. grandmother on the maternal side i.e. the present appellant No. 1. The present appellant No. 2 is the grandfather of the child. Respondent Sheikh Abdullah s/o Sk. Mehboob is a Lecturer in Vasantrao Naik College at CIDCO, Nanded, is the father of the child. 4.Sk. Abdullah, the present respondent, initiated proceedings on the file of the learned 2nd Additional District Judge, Nanded vide Miscellaneous Civil Appeal No : (RJE) 55/94 for custody of his minor son- Sk. Muddassar and the application was moved under sections 7 and 10 of the Guardianship and Wards Act 1890 and also as per the provisions of the Mohammedan Law. The learned 2nd Additional Sessions Judge, Nanded who dealt with the matter, by his judgment and order dated October 21, 1997, allowed the Application specifically observing that Sk. Abdullah, the original applicant/present respondent, was entitled to have the custody of the child- Sk. Mudassar, who is commonly known by his nickname as "Sajid". The present appellants, by that order, were directed to handover the custody of the minor child to the present respondent. 5.The above-said judgment and order is the subject-matter of challenge in the First Appeal before this Court. 6.Shri S.V. Varad, the learned Counsel appearing on behalf of the appellants scathingly assailed the order passed by the learned Judge of the trial Court, specifically arguing that the child who, at the time of death of his mother, was hardly of 18 months and since then he is under the care of his grand-parents from maternal side, who are looking after the child with great love and affection and who are providing all types of facilities and amenities to the child including that of educational facilities. Shri Varad, argued that the daughter of the present appellants, namely, Nazmunnissa, was married to the present respondent on 5th November, 1989 and out of this wedlock two children i.e. Miss Salma and Sajid (Sk. Muddassar) were born to the couple. Miss Salma is elder to Sajid. Some time in the month of December 1992, Nazmunnissa, died of burn injuries while in the house of her husband. At that time, the present child, Sajid was hardly 16 months old. Because of the loss of the mother, naturally the child was taken by the appellants with them. Shri Varad, argued that present respondent was prosecuted and tried for the offences punishable under section 498-A read with sections 306, 302 and 304-B and section 34 of the Indian Penal Code. Along with the present respondent, the parents of the present respondent were also accused persons. However, all of them are acquitted of the offences charged with. Even, as on today, the respondent is working as Lecturer in the College where he was previously working. After the death of the first wife i.e. Nazmunnissa, the present respondent, on many occasion tried to visit his in-laws' place to see his son Sajid. However, the parents of deceased Nazmunnissa had by then developed so much hatred and ill will towards this respondent that they even did not allow the respondent to enter in the house and even to have any access towards his child. During the intervening period, the respondent married, to one Kausar Zabin on 5th December, 1996. 7.Inspite of very many efforts on the part of the respondent to have the custody of his child; the maternal grand-parents of the child did not allow the present respondent to have custody or even to have an access to the child, hence the respondent was compelled to initiate the present proceedings which resulted into granting custody in favour of the respondent. 8.Shri Varad, argued that the respondent at no point of time even visited the child. He did not even care for his well-being. Taking into consideration this conduct of the father for years together and further that since the child has been put in a good School i.e. Indira Gandhi Public School, Dharmabad and is taking education through English medium, according to Shri Varad, it would not be, now, in the interest of the child and his welfare to change the custody. Taking into consideration this conduct of the father for years together and further that since the child has been put in a good School i.e. Indira Gandhi Public School, Dharmabad and is taking education through English medium, according to Shri Varad, it would not be, now, in the interest of the child and his welfare to change the custody. The child himself, according to Shri Varad, has developed hatred for his father. Shri Varad, further, pointed out that since the respondent has married second time, the child will be having a step-mother and it would be difficult to believe prima facie that the step-mother would give a motherly treatment to the child, which otherwise he is now getting from his grandparents. Shri Varad, further, argued that the present appellants have developed very much love and affection and they are much involved in him. It would be very difficult for them to lead the life without the child. Shri Varad, further, tried to suggest that from the second marriage, the present respondent is also having a child though it is just a baby but, according to Shri Varad, that may also and or may cause partial treatment that would be meted out to the child in case the child is sent to the father. 9.As against the arguments of Shri Varad, Shri P.V. Mandlik, the learned Counsel appearing on behalf of the respondent-father argued that father is a highly educated person in as much as he is working as a Lecturer in College and has every anxiety to see that his son is properly educated. Shri Mandlik, further, argued that all type of efforts were made by the father to go and see the child and to see about his welfare and well-being and further to bring him to his home, but all were in vain and, therefore, according to Shri Mandlik, the father was compelled to initiate the present proceedings. Shri Mandlik argued that the second wife of the present respondent was also ready to file an affidavit before the Court, pointing out that she will not even in slightest manner, give any partial treatment to the present child in question i.e. Sajid nor shall she in any other manner neglect the child. On the other hand the child will be treated and will be brought up a if it is her own child. On the other hand the child will be treated and will be brought up a if it is her own child. 10.After having heard the Advocates at length, this Court on July 2nd, 1999 had directed the learned Counsel to ask their respective clients to remain present in the Court along with he boy Sajid and it was more so because the matter was being hotly contested. This Court solely with an intention to find out the wish of the child, his capacity and capability of understanding and as to what he understands about his own future, this Court interviewed the child in the Chamber. This Court had a long chat with the child who, no doubt, happened to be and appeared to be a child with good understanding and a discerning boy. This Court put very many questions to the child and from his answers this Court noticed that, in fact, the boy does not appear to have seen his father, particularly when this Court put a question about the father. He said that his father is at Dharmabad and is old and is a timber-merchant. This clearly shows that at no point of time the child was made aware about his father. However, surprisingly, the child answered in one of the questions, saying that he knew that he has an elder sister, by name, Salma. However, he said that he had no occasion to see his sister. It would be appropriate to point out here that the present respondent is already having one more child i.e. Salma who is elder to the present boy, Sajid and who is staying with the father and step-mother right from the beginning. Miss Salma is also taking education in a good School at Nanded. From the talk with the child, the Court has come to know that whatsoever the malice and hatred the child may have for his father, does not appear to be his own feeling but appears to be totally tutored and naturally because the child is staying with the grandmother who appear to have definitely injected this grudge and hatred into the mind of this innocent lad. The child could answer about the business of his grandfather to whom the child says that the old man is his father. The child could answer about the business of his grandfather to whom the child says that the old man is his father. 11.This Court after having interviewed the child and after having a talk with him, also had a talk with the father of the child as also with the grandmother who had come along with the child. No doubt, this Court had a talk with these above-mentioned persons separately, but in the chamber itself. During the course of parley with the grandmother of the child, this Court realised that the mother even till this day is under the impression that her daughter was either killed or burnt by the present respondent and a severe hatred could be seen from her talk. She however stated that now it would not be possible for her to part with the child and further that among other things, the child is happy in her home. She further pointed out that her husband i.e. grandfather of the child, is having a good business and, according to her, the grandfather is in a position to spend whatsoever amount is necessary for the welfare of the child. However, at the same time she could not deny that she is having her own grown up married children who are having their own children. 12.Taking into consideration this aspect, this Court looked into the matter from some different angle. It is no doubt true that today the old persons i.e. grandparents of the child are, no doubt, with the child and nurturing the child with due care, love and affection whatsoever they can shower on him. However, this Court cannot lose sight of the fact that till the child is in the company of the grandparents he may be happy. However, this Court, at least at this stage would not be in a position to foretell as to what would be fate of the child if the child is to live in the house along with his uncles, maternal aunts and cousins in that house whether those persons would be in a position to give and pour the same love and affection as is being received by the child Sajid from his grand-parents. No doubt, it is a matter of "ifs" and "buts". No doubt, it is a matter of "ifs" and "buts". However when we have to see the welfare of the child, then, all these aspects and particularly in the circumstances of the present case, will have to be definitely considered. As against this, no doubt, in the father's house also the child will be having a step-mother and the step-mother having her own child again. However, at the same time it also cannot be forgotten that Salma, the eldest daughter of the present respondent and the elder real sister of the child is being brought up in the same house and that too under the due care and umbrella of her step-mother. Another aspect to be noted is that Salma is being given all type of good treatment. She is attending the School and according to Shri Mandlik, and as this Court had talk with the father i.e. the present respondent Sk. Abdullah, the child does not appear to have any trouble or partial treatment even from her step-mother. If the fact would have been otherwise, a wise man like the present respondent, who is a highly educated person, in ordinary course, would not have dared to bring this child if Salma would have received ill-treatment from her stepmother. When the father dares to bring the child and is anxious to bring the child at his home inspite of he being aware that the child will be having a step-mother in the house, clearly indicates that the treatment which Salma is being given the child Sajid will also be looked after with the same love affection and due care. 13.As pointed out earlier, this Court also had a talk with the father i.e. respondent Sk. Abdullah in the chamber on the very same day. During the discussion and after questioning the father, this Court has definitely gathered a strong impression that the father is not only anxious merely because he happens to be a natural father but he has definitely a great anxiety to see that the child is brought up properly and is properly educated and that too in a city like Nanded instead of at Dharmabad. The anxiety which is seen from his talk is also as regards, till the old persons are there may not be any difficulty as regard the welfare of the child. The anxiety which is seen from his talk is also as regards, till the old persons are there may not be any difficulty as regard the welfare of the child. However he also expressed that what would be treatment and behaviour and approach of his maternal uncles and maternal aunts and their children in that house, nothing can confidently be said it would be appropriate at this stage itself and which also could be said to be a proper age of the child to have channelised and developed love and affection for his father and who within a short span of time will get himself adjusted and accommodated in this new family and environment which otherwise. If the time is lost will not be possible all through the life of both. He expressed that there is every possibility. Otherwise of the child developing the hatred all though the life for the father. 14.The another aspect to be looked at in this matter is as regards the education of the child. According to the old lady she herself has admitted that she and her husband both are virtually tired and they need the child in their house as a company and to keep them engaged. It is also to be noted that the grandfather is an uneducated person and is doing the business in timber. The present respondent-father expressed and as is seen also from the child's statement that there is every possibility, looking to his tender age, he may start taking interest in the business in such a tender age and deal with money and get spoilt. 15.In these circumstances, this Court thinks it better and finds it appropriate that the welfare of the child if to be seen, the child will have to go and stay with his father and this could now be the right age. As it is the child has now crossed the age of seven years. Even otherwise, he is, in ordinary course, entitled to be in the custody of his natural guardian-father. 16.Shri Varad, the learned Counsel appearing on behalf of the appellants, brought to my notice the decision of the Supreme Court reported in 1992(3) S.C.C. 572 in the matter of (Kirtikumar Joshi v. Pradeep Joshi)1. This is a matter relates to the custody of a minor child which was sought by the father as well as maternal uncle. 16.Shri Varad, the learned Counsel appearing on behalf of the appellants, brought to my notice the decision of the Supreme Court reported in 1992(3) S.C.C. 572 in the matter of (Kirtikumar Joshi v. Pradeep Joshi)1. This is a matter relates to the custody of a minor child which was sought by the father as well as maternal uncle. The Supreme Court of India, in that matter, taking into consideration the facts of that case, and strictly in the circumstances of that case, thought it better and in the interest and welfare of the child to handover the custody of the child to the maternal uncle instead of the father. In that case also, it is clear that the father, at the relevant point of time, was facing a charge for an offence punishable under section 498-A of the Indian Penal Code. However, it appears that it was during the trial the problem as regards custody had cropped up. It is also further clear from the said judgment itself that the Supreme Court also had given liberty to the parties concerned to move an application for custody or for modification of orders if there would have been any change in the circumstances or for the welfare of the child. 16-A.Another decision which is tried to be relied upon by Shri Varad is the decision of this Court reported in 1998(4) Bom.C.R. (O.O.C.J.)815 in the matter of (Irfan Ahmed v. Mumtaz)2. In this case also, my Brother Judge who dealt with the matter, taking into consideration the facts of that case and specifically in the circumstances of that case itself, reached to the conclusion that handing over of the custody of the child to the mother in that case, was in the welfare of that child, even though the mother had married a third person. It was specifically because the mother merely had remarried would not by itself, disqualify her, for having the custody of her own child. 17.Another aspect to be looked into the matter is that in the house of the present respondent, not only the respondent and his wife along with his children are there but the father and the mother of the present respondent also often visit the house of the present respondent who also will take the care of the child. 17.Another aspect to be looked into the matter is that in the house of the present respondent, not only the respondent and his wife along with his children are there but the father and the mother of the present respondent also often visit the house of the present respondent who also will take the care of the child. It will always be better if the child is in the company of his father, sister and other blood relations than to be in the company of his relations on the maternal side and cousins in that branch. 18.Shri Varad, the learned Counsel heavily relying on the provisions of section 102 of Islamic Law (Personal) and particularly as regards the Chapter of Guardianship of Persons (Hizanat) pointed out that even as per this Law after the mother, the mother's mother or relations on the mother's side can have the custody and it cannot be illegal. There is no doubt about this. Even according to this provision, it is clear that the child below seven years of age and a girl till she attains puberty, in the absence of their mother, the custody would be generally with the family members on the maternal side. However, this Court need not go into all these aspects and this Court specifically observes that, in the present case, dealing with the custody of the child who has now crossed the age of seven years, the only thing this Court has to consider is and which would carry more weightage is the welfare of the minor. Even applying the provisions of the Personal law referred to above, the same will have to be also applied in consonance with and synchronising the provisions of both the Acts together i.e. Personal Law and Guardianship and Wards Act, 1890. Both the provisions ultimately aim at one point i.e. welfare of the child. From the another aspect also if we look at the matter, in fact, the father remains in constructive and legal custody of the child even though physical and actual custody rests with the mother or other female relatives. Both the provisions ultimately aim at one point i.e. welfare of the child. From the another aspect also if we look at the matter, in fact, the father remains in constructive and legal custody of the child even though physical and actual custody rests with the mother or other female relatives. In the instant case, the child was taken to the grandparents place during the happening of the sorry episode of the death of his mother and that too when the child was of 16 months only and since then naturally the child had no knowledge about his father or any other relative on the paternal side. 19.In the circumstances, this Court has no hesitation whatsoever in dismissing the present Appeal and upholding the order passed by the learned Judge of the trial Court whereby the custody is directed to be handed over to the father. 20.Shri Varad, at this stage, argued that the old persons since they have developed very much intimacy, love and affection with the child, it would be difficult for them to straightaway part with the custody of the child and to be away from him. Shri Mandlik, on this point, fairly stated that though the respondent was not allowed entry in the house of his in-laws, that old story would not be repeated and the old persons will be at liberty to come and see the child as and when they would wish. Not only this but Shri Mandlik fairly offered that all type of respectable treatment will be given to those persons as ultimately they remained to be his in-laws. I think, this attitude on the part of the respondent is enough to demonstrate the mental get up of the man concerned. In the circumstances, the appellants may go and see the child as and when they wish or they happen to go to Nanded. Shri Varad, further, raised one more question as regards the education of the child for the present year. According to Shri Varad, the child has already started attending the School which has recently opened in the month of July and the boy is already admitted to 3rd standard. Shri Mandlik stated that this client/respondent-father, would see that the child gets admission in a good school at Nanded and it is in the interest of the respondent himself that the boy is given good education. Shri Mandlik stated that this client/respondent-father, would see that the child gets admission in a good school at Nanded and it is in the interest of the respondent himself that the boy is given good education. The moment the father is in a position to get the admission the father is at liberty to take custody of the child and the appellants are directed not to resist handing over the custody in any manner. In the circumstances, the First Appeal stands dismissed C.A. also stands disposed of. 21.Shri Varad, requested that the effect and operation of this order be stayed for a period of four weeks. I am not inclined to accept this request. Request stands rejected. Appeal dismissed. -----