Mohammad Hayat Ganie vs Mst. Raja

M. Yaqoob Mir, J.—Appellant's 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 Guardians and Wards Act has been declined by Sub Judge, Handwara vide judgment

dated 28-9-2002 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 along with 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.

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.

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.

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.

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.

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 any-thing 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.

Appellant least caring for the children has divorced the respondent and thereafter performed 2nd marriage while as respondent after divorce has

sacrificed 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.

In essence welfare of the children is in-keeping with the object of Guardians 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.

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 upheld. Resultantly,

appeal is dismissed.

Copy of the order along with record be sent back.