Custody of male children above age of 7 years - No evidence to show that husband remarried or contracted any illicit liaison with any other lady - Evidence showing that wife was having difficulty in maintaining children within Rs. 100/-p.m. awarded for their maintenance - Custody of children given to the father

BOMBAY HIGH COURT

Before :- Bharucha, J.
First Appeal No.603 of 1987. D/d. 15.2.1989.

Smt. Farjanabi - Appellant
Versus
Sk. Ayub Dadamiya - Respondent

For the Appellant :- Shashikant G. Surgana, Advocates.
For the Respondent :- N. B. Shah, Advocate.

Bombay High Court

JUDGEMENT

Bharucha, J. : - The appeal is directed against the judgment and order of the Addl. District Judge, Dhule, allowing the application of the present respondent for being appointed the guardian of his two minor sons
and for their custody.
2. The appellant and the respondent are Muslims. They were married under the Muslim Law in 1975. They cohabited together until 1979. On 17th. December, 1976 the elder child Sayyad and on 19th April, 1979 the younger child Yusuf were born to them.
3. After the appellant and the respondent started residing separately in 1979 the appellant filed an application under the Code of Criminal Procedure for maintenance for the two sons and on 12th October, 1981 the maintenance aggregating to the sum of Rs. 100/- p.m. was granted. In 1982 the respondent filed a suit against the appellant for restitution of conjugal rights and it was decreed on 10th January, 1983. The parties, however, did not reside together thereafter.
4. In 1986 the respondent preferred an application under the Guardians and Wards Act, the order whereon is challenged in this appeal. Evidence was led. The learned Judge noted that both the children were above 7 years of age and that under Muslim Law a mother was entitled to the custody of her male children only until they attained the age of 7 years. He found also that the welfare of the minors did not lie in favour of their residing with their mother. He noted, however, that the children had expressed the wish to stay with the mother; but he was of the view that they were not of an age when they could make an intelligent preference. The learned Judge found that the appellant's evidence did not support her case that the respondent had remarried.
5. The children, by reason of the stay order passed in this appeal remained with the appellant. At an earlier stage of the hearing of the appeal, a reconciliation between the parties was attempted but I am informed that they are no longer residing together.
6. There is no doubt that under Muslim Law the father is entitled to the custody of a son over 7 years of age (See Section 357 in Mulla's Principles of Mohammedan Law, 18th edition). The evidence on record does not establish that the respondent has remarried or contracted any illicit liasion. The evidence of the appellant indicates that she has difficulty. in maintaining the children within the sum of Rs. 100 per month awarded to her as and by way of their maintenance. There is, upon the record, some doubt as to the fixed residence of the appellant. There is, therefore, no good reason why the ordinary rule of Mohammedan Law should not be adhered to in the present case and it must in the circumstances, prevail over the desire of the children.
7. The learned Judge was, therefore, justified in awarding the custody of the children to the respondent. As he has observed, the respondent is under the law their guardian, so that no declaration in that behalf was really necessary.
8. It does appear, however, unfair that the appellant and the children should have no opportunity of seeing each other and living together for brief periods of time. Since the order under appeal makes no provision for access and since the advocates for the parties appearing before me are not sure of the schools that the children attend and the vacations therein, I make it clear that the appellant shall be at liberty to move the District Court for the purposes of obtaining access to the children.
9. The appeal is, accordingly, dismissed. Liberty, however, is reserved to the appellant to move the District Court for appropriate orders for access.
10. No order as to costs.

Appeal dismissed.
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