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2008 DIGILAW 29 (JK)

Mohd. Hayat Ganie v. Raja

2008-02-05

MOHAMMAD YAQOOB MIR

body2008
1. Appellants petition seeking custody of wards i.e. minor sons and daughter namely Shahid Hayat, Tanveer Hayat, Nadeem Hayat and Shugufta in terms of Section 25 of Guardian and Wards Act has been declined by Sub Judge, Handwara vide judgment dated 28.09.2002 which is now impugned. Basically appellant and respondent were married. From the wedlock three sons and a daughter are born. Nuptial knot got untied due to the divorce but respondent alongwith children continued to live in the house of the appellant. Appellant who is Head Constable in the J&K Armed Force has remarried and has got children from the 2nd wife so is putting with her at Srinagar. 2. Appellant with the object of divesting respondent of her children filed petition for custody of the children, contending therein that educational career of the children is not safe in the hands of respondent as respondent is not in a position to maintain them due to economic backwardness. It is also contended that though appellant in connection with employment is away from his home but his sister is available to take care of the children in his absence. 3. Learned trial court after evaluating all the facts and circumstances and on proper appreciation of evidence led by the parties has come to the conclusion that the application is without any merit, accordingly dismissed the same. 4. Learned counsel appearing for the appellant projected that the appellant is natural guardian so is entitled to the custody of the male minors at the age of seven years whereas female minor at the age of 12 years. This contention of the appearing counsel is not acceptable. Apart from such position of law, welfare of the minors is of paramount importance, various factors have to be taken into consideration so as to safeguard the interests of the minors. 5. Learned counsel next contended that the court below has mis-read and mis-appreciated the statements of the appellant but on perusal of the statements and observations of the trial court, it appears that trial court has correctly read and appreciated the whole material. 6. Learned counsel further contended that as the respondent has retained the custody of the children, their future is likely to get affected. This submission is not acceptable because no mother on the earth would like to see her children in lurch. No mother can compromise with the welfare of the children. 6. Learned counsel further contended that as the respondent has retained the custody of the children, their future is likely to get affected. This submission is not acceptable because no mother on the earth would like to see her children in lurch. No mother can compromise with the welfare of the children. The appellant has not brought anything plausible on record to show that future of the children, in any way, is getting adversely affected. Instead, it is admitted position that the appellant is working in the J&K Armed Force and is living with his 2nd wife. If custody of the children is given to the appellant that will amount to real destruction of the children as they would be put in the hands of stepmother. 7. Appellant least caring for the children has divorced the respondent and thereafter performed 2nd marriage while as respondent after divorce has scarified herself for the maintenance and welfare of the children. It is the moral as well as legal duty of the appellant to maintain the children, and to support them economically. Economic back-up is meaningless unless the wards are put in a good environment. Cozy lap of the mother for the children has no substitute. A mother no doubt in exceptional cases, may not be a proper person to retain the custody i.e. when the mother morally and behaviourally is in disarray, no such exceptional circumstance has been brought on record during trial which would warrant her to be deprived from retaining the custody of the children 8. In essence welfare of the children is in-keeping with the object of Guardian and Wards Act. The paramount consideration is welfare of the minor, regard being had to the age sex and religion then coupled with the choice of the children provided they are intelligent and have capacity of distinguishing between good and bad. 9. Learned trial court has looked into all aspects, has interviewed the children and found them rational in preference, therefore, learned trial court has, on proper appreciation of evidence, taken correct view which does not warrant interference. Hence the order is up held. Resultantly, appeal is dismissed 10. Copy of the order alongwith record be sent back.