JUDGMENT By the Court.—Heard learned Counsel for the appellant and perused the record. Perhaps one of the most crucial issues that comes up after getting a divorce is the matter of child custody, so is in the instant case where the appellant has approached this Court assailing the judgment and order dated 20.8.2015 passed by the learned Principal Judge, Family Court, Ambedkar Nagar in Case No. 4 of 2014 (Akbal Ahmad v. Jamila Khatoon and another), under Section 7/25 of the Guardians and Wards Act, 1890, when the claim of the appellant for custody of his minor children has been refused. The appellant has challenged the aforesaid judgment and order dated 20.8.2015 inter alia on the ground that the findings recorded by the Family Court are perverse and contrary to the materials available on record. The contention of the appellant is that not only the mother but also the other members of his in-laws are not well-educated and they have also no knowledge about the modern and technical education. In these circumstances, they would not be able to provide better education to his minor children, namely, Sahista Sana (aged about 7 years) and Wahisatunnisha (aged about 3 years). It has also been asserted that there is no educational atmosphere in house of his in-laws which would have adverse impact on the children. According to the appellant, he is in better position to provide best education to his minor children but as they were taken away, by his wife, the studies of the children are hampered. Being natural father, he is entitled for the custody of the children so that their educational career may not suffer any further. 2. The Guardians and Wards Act, 1890, is the enactment that regulates and governs the law relating to appointment and declaration of guardians; duties, rights and liabilities of guardians and all laws relating to the Guardian and Ward. As per Section 4 of the Guardians and Wards Act, 1890 a minor is a person who, under the provisions of the Indian Majority Act is deemed not to have attained the age of majority. As per Section 4 of the Guardians and Wards Act, 1890 a minor is a person who, under the provisions of the Indian Majority Act is deemed not to have attained the age of majority. As it is well known that the age of majority for a person in India has been defined under Section 3 of the Indian Majority Act, 1875 stipulates “that every person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before”. Thus on the face of it an inference is drawn that all persons are considered minors if he or she has not attained the age of 18 years. Further the Hon’ble High Court of Delhi while dealing with a habeas corpus petition in Mohammad Nihal v. State (decided on 8th July, 2008) has taken the aid of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 which states that, regarding matters pertaining to succession, inheritance, marriage, divorce, guardianship, etc, where the parties are Muslims, the Muslim Personal Law (Shariat) shall be applicable. The Hon’ble Court has held that, “if some doubt prevails pertaining to the applicability of Shariat laws in guardianship matters, it stands clarified by virtue of Section 6 of the G&W Act. When a Court is called upon to determine the welfare of a minor so far as appointment of a guardian is concerned, this exercise will have to be determined in consonance with Shariat Law”. The Hon’ble Court further reiterated that in consonance with Section 2 of the Majority Act which states that its provisions do not impact on matters of marriage, dower, divorce and adoption, the Indian Majority act cannot be looked into while ascertaining the age of a minor and the personal law of the parties would be the driving factor. Where the husband and wife are living together, the child must stay with them, and the husband cannot take the child away with him, nor can the mother, even during the period that she is entitled to the custody of the child, take it away without the permission of the father. Where the child is with one of the parents, the other cannot be prevented from seeing and visiting it. The term ‘’Guardianship’ (Wilayat) connotes the guardianship of a minor. Where the child is with one of the parents, the other cannot be prevented from seeing and visiting it. The term ‘’Guardianship’ (Wilayat) connotes the guardianship of a minor. Guardianship of a minor person means an overall supervision of the minor’s personality. It means care and welfare of the child including the liability to maintain it. It is more than simply custody of the child upon a certain age. Under Muslim law, it is called HIZANAT. Although mother is not the natural guardian of the child but she is entitled (1) in Hanafi law to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty and (2) According to Shiah Ithna Ashari Law, the mother has the right to the custody of a male child until he attain the age of two years and of a female child until she attains the age of seven years. In Shiah Ithna Ashari law after the child attains the age, as stated above, the father has the right to the custody of the child. In the absence of either the father or the mother, the other parent has the right to the custody of a minor child, whatever its sex and age. Hence the maternal grandmother cannot, if the parties are governed by Shiah law, claim the custody of a female child 3 ½ years old, during the life-time of the father. 3. Under the Hanafi law in the absence, or on the disqualification, of the mother, the custody of the child-until, being a male, he has attained the age of seven years, or being a female, she has attained puberty-belongs to (1) the mother’s mother;(2) the father’s mother(3) the mother’s grandmother how high-soever (4) the father’s grandmother how high soever (5) the full sister and (6) the uterine sister. It may be clarified that a mother is the de facto guardian. She cannot execute a waqf on behalf of the minor as she has no right to alienate minor’s property unless appointed as a guardian by Court. To begin with, one has to bear in mind that there are two types of guardianship over a minor : 1. Wilayah or guardianship of the property and education and marriage of the ward 2. Hizanah or guardianship over the rearing and bringing up of the child. To begin with, one has to bear in mind that there are two types of guardianship over a minor : 1. Wilayah or guardianship of the property and education and marriage of the ward 2. Hizanah or guardianship over the rearing and bringing up of the child. Further, the Guardians are appointed in the following manner : 1. by natural right, or 2. by testament, or 3. by appointment by a judge Neil B.E. Baillie in his ‘Digest of Moohummadan Law’, which is a condensed presentation of the Hanafi code of jurisprudence (Fatawa-e-Alamgiri-page xxxiii of the Introduction), treats these three methods of appointment in this way: “Of Guardians there seems to be two kinds the lineal and the testamentary guardian. The powers and duties of the former are limited to the marriage of his ward, and of the latter to the care of his person and property. The testamentary guardian does not appear to be distinguished from the ordinary executor. No executor has authority to contract minor in marriage, unless he happens to be the lineal guardian also.” 4. A Division Bench of this Court in Mt. Sakina Begum v. Malka Ara Begum, AIR 1948 All 198, had thus to say : “According to the Hanafi law, as between a mother and a father, the mother has a preferential claim to the custody of their children. It cannot be laid down as an absolute proposition that she loses the right of custody if she goes and resides at a distance from the father’s place. ‘It all depends upon circumstances. If the stay is only temporary or forced or is due to circumstances beyond her control, it is difficult to hold that she should even then be deprived of the custody of her own children. She loses the right of custody of her children only if she has any defect of character such as would render her unfit to have the custody of her own child”. 5. In the case of Mohammed Khalid v. Smt Zeenat Parveen and others, AIR 1988 All 252 , a similar view was taken. It is well established that in a proceeding under the Act for the custody of a minor it is the welfare in the widest sense of the term that is to be considered, though the father as natural guardian may have a prima facie right to a minor’s custody. It is well established that in a proceeding under the Act for the custody of a minor it is the welfare in the widest sense of the term that is to be considered, though the father as natural guardian may have a prima facie right to a minor’s custody. It can be negated only if minor’s welfare lies in keeping him in the custody of his mother. Merely because the father is the natural guardian under the personal law applicable to him, the custody of the minor cannot be entrusted to him having in mind overall consideration of his physical and material well being, education, up-bringing, happiness etc., the dominant consideration shall be the interest of the minor than the claims of the rival parties. Ordinarily, the mother is the most competent and suitable person to protect the interest of the minor and safeguard his welfare. To the affection and love of a mother there is no substitute. Universal phenomenon and human approach have acknowledged that the mother’s affection for the child is unparalleled. In Smt. Farzanabai v. Ayub Dadamiya; AIR 1989 Bom. 357 , the Bombay high Court observed that under Guardians and Wards Act, the personal law of the parties is a factor which is to be kept in mind by the Court subject to the interest of the minor : “Guardianship of a person in relation to a child belongs primarily to its father, the mother’s being only a pre-emptive right to keep the father away for a legally prescribed period only from a particular aspect of the guardianship of person, namely, the custody and physical upbringing of the child’’. 6. It may be said, therefore, that mother has a right to the custody of her child for some time, because except her, no one can handle and nurse a child during its infancy. But her custody of the child is subject to the supervision of the father who, as a legal guardian, is under an obligation to provide means for the upbringing of child. 7. In the instant case, one of the grounds of the appellant is that being the natural father is entitled for custody. But her custody of the child is subject to the supervision of the father who, as a legal guardian, is under an obligation to provide means for the upbringing of child. 7. In the instant case, one of the grounds of the appellant is that being the natural father is entitled for custody. In this context, it would be relevant to point out that in the case of Smt Ajnunnisa v. Mukhtar Ahmad and another, AIR 1975 Allahabad 67, it was held that where a minor aged about 10-11 years is in the custody of his mother and has intelligently exercised his preference to continue to stay with her, his custody cannot be disturbed and be given to his father though he is legal guardian of the minor in the personal law (Mohammedan Law). A mere claim to legal guardianship in such a situation will not stand on a higher footing than the claim of the real mother to continue to have the custody of the minor who has remained in her custody since the birth of the child. At this juncture it would be useful to mention that the Bombay High Court in Abdulsattar Hussain Kudachikar v. Shahina Abdulsattar Kudichikar, AIR 1996 Bom 134 , has held that the mother is entitled to the custody of a son aged 5 years even though the father is earning more money than the mother. 8. In the instant case, the two female children aged about 7 years and 3 years are living with the mother. The company of a mother is more valuable to a growing up female child unless there are compelling and justifiable reasons, a child should not be deprived of the company of the mother. The company of the mother is always in the welfare of the minor child. A child gets the best protection through the mother. It is a most natural thing for any child to grow up in the company of one’s mother. Neither the father nor any other person can shower the same kind of love, affection, care and sympathies to a child as that of a mother. 9. A child gets the best protection through the mother. It is a most natural thing for any child to grow up in the company of one’s mother. Neither the father nor any other person can shower the same kind of love, affection, care and sympathies to a child as that of a mother. 9. In Irshad Alam v. Isma Alam (First Appeal No. 1011 of 2012; decided on 9.5.2013) the husband filed a petition under Section 25 of the Guardians and Wards Act, 1890 seeking custody of the male child Iris Irshad Alam, who had been taken away by the wife at the time of leaving the house. The respondent wife objected to this claim of custody of the male child by filing objections and simultaneously she also filed a petition being Petition No. 26/70 of 2009 under Section 25 of the ‘1890 Act’ for the custody of the female child, namely, Urooj Irshad Alam who was left at the house of the appellant-husband at the time of her departure from matrimonial home. The Division Bench while dismissing the appeal of the husband held as under : “In view of the aforesaid discussions of facts and law and keeping in view the paramount consideration of the welfare of the children, we are convinced that children’s interest and welfare will be best served if they are in the custody of the mother. In our opinion, it is not desirable to disturb the custody of male child. It is also desirable that the custody of the female child is given to her mother. Therefore, the order of the Court below in giving the exclusive custody of the male child till he attains majority and of female child to the mother deserves to be maintained.” 10. In view of the aforesaid discussions, I find no illegality in the impugned judgment dated 20.8.2015 passed by Sri B.S.Mishra, Principal Judge, Family Court, Ambedkarnagar in Case No. 4 of 2014, which is hereby approved. The instant appeal dismissed accordingly. However, the appellant is granted visitation rights with regard to the minor female child. He could meet the children once in a month in the presence of the respondent-Jamila Khatoon on an undertaking that there will be no breach of public peace by either parties, which shall be filed by both the parties before the Family Court. However, the appellant is granted visitation rights with regard to the minor female child. He could meet the children once in a month in the presence of the respondent-Jamila Khatoon on an undertaking that there will be no breach of public peace by either parties, which shall be filed by both the parties before the Family Court. Let a copy of this order be sent to the Principal Judge, Family Court, Ambedkarnagar.