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2008 DIGILAW 470 (JK)

Ishrat Maqbool v. Ashiq Feroz

2008-12-02

MOHAMMAD YAQOOB MIR

body2008
1. Impugned is the order dated 23.06.2008 passed by 1st. Addl. District Judge, Srinagar whereunder objections raised regarding maintainability of the petition for custody of the ward has been rejected. 2. Petitioner and respondent were married to each other. From the wedlock on child (ward) is born, but due to the acrimony between the couple, petitioner alongwith child are living separate, therefore, ward continues to be in the custody of the petitioner. 3. Respondent (father) has filed the petition for return of custody of the minor, maintainability of which was unsuccessfully objected. 4. The short point raised by the learned counsel for the petitioner is that the application moved by respondent has not been framed in accordance with Section 10 of the Guardian & Wards Act; therefore, application should have been dismissed as not maintainable. The submission is only to be rejected because format of application prescribed under Section 10 of the Act is required to be followed only when the application is with respect to the guardianship of the person or property of the minor. Admittedly, respondent is not required to file application as being the real father so a natural guardian, he has admittedly filed application under section 25 of the Guardian & Wards Act for which format of application prescribed under section 10 of the Act is not required to be adopted. To simplify, the Chapter-II of the Act deals with appointment and declaration of the guardian. Chapter-III deals with duty, rights and liabilities of the guardian, so distinction has to be drawn in between the two Chapters. 5. For appointment of guardian, procedure prescribed under Chapter-II is to be followed which includes format of application prescribed under Section 10 as figure in Chapter - II of the Act, then after appointment of the guardian if custody is disturbed, the appointed guardian like the natural guardian can file application under Section 25 as figure in Chapter III of the Guardian and Wards Act. If the contention of the learned counsel is taken correct then appointed guardian shall be required to follow the format of Section 10 afresh which is never the purport of section 25 of the Act. Therefore, contention raised by learned counsel on this count is misplaced. 6. If the contention of the learned counsel is taken correct then appointed guardian shall be required to follow the format of Section 10 afresh which is never the purport of section 25 of the Act. Therefore, contention raised by learned counsel on this count is misplaced. 6. Next learned counsel contended that as per Hanfia School of Thought, custody of the child in case of male is to remain exclusively with the mother for seven years and in case of female for twelve years. This position has been taken note of by the trial court and the learned trial court has rightly concluded that the domain of the court to look into the visitation right of the father as well as welfare of the ward is not taken away by any process and has also rightly concluded that on the grounds urged application of the father cannot be ignored at the threshold. 7. Revision petition is found devoid of merit, as such is dismissed. Copy of the order be sent to the Court of 1st Addl. District Judge, Srinagar for information. Disposed of as above alongwith connected CMP.