The father's right to custody of his child under Muslim law is paramount, but the court must also consider the welfare of the child and whether the father is a fit guardian.

( 1 ) THIS appeal arises under the Guardians and Wards Act No. 8 of 1890 as to the custody of a child born on 1/10/1970. His name is Mohd. Aquil Ahmed Ansari alias suheel in 1982 he is studying in VI th Class in the city of Hyderabad in standard public school at Kilwat at Lad Bazar. The parents of the child were married on Jam, 8, 1970 and were divorced on 28/12/1970. The wife married again on 30/08/1974 to one jawood Ali and left for saudi Arabia on 29/11/1976 she has three issues from the second marriage: the husband also re-married on 11/12/1975 and has another son by the second wife.

( 2 ) THE father of the child by application on 12/06/1973 sought the custody of his child, principally, on the ground that he is the legal guardian. In the application, he alleged his father, Mohd. Barket Ahmed ansari, mother Mukdoom Bee. His second wife, Aliya all are willing to take the custody of the child that among his three brothers Mohd. Khaleel ahmed Ansari , isiter, Zubaida Begum, the two in addition, are willing to look after the child. It is alleged, the mother left the child to her parents. Between the parties, an agreement on 28/12/1970 was referred wherein the parents inter alia, agreed, the mother will not claim Maher claim maintenance for the child till sharai period, known as Hizna which prescribes the age of seven years. The child it was agreed will be entrusted to the father before the expiry of sharai period if she so desired. In the petition, it is further alleged the mother was studying B. Sc in womens college at Kothi (even after birth of child) and as student, from morning to the evening, moves about and cannot look after the child. He sent his friends, relatives. Neighbours and all his attempts failed. Finally the father issued a lawyers notice on 29/05/1973 in which it was alleged the father was not allowed to see the child. The mother not even accepted the clothes, fruits. Chocolates and biscuits brought for the minor but bluntly refused. In reply notice on 24/06/1973, it was stated, the child was 2 years and 8 months, therefore, cannot live without mother, cannot be looked after properly except by the mother. The mother resisted the petition in the Court she averred, for the first time, in June 1973 a paltry sum of Rs. 25 was sent; except that the child was neglected for three years by the father. Even this amount was sent with the ulterior motive to substantiate the illegal claims over the minor. It was added the father is an L. D. C. in Unani Dispensary at Narayanguda, therefore not a person to be entrusted with the child.

( 3 ) THA Additional chief Judge, city civil Court, Hyderabad dismissed the application 26/07/1978 holding merely because the petitioner happens to be the father he must not necessarily be given custody of the minor. On appeal, a learned single Judge of this Court considered the circumstances; interviewed the child in chambers and found the child was willing to stay with maternal grand-parents. It was found, from the birth of the child, till the date of Judgment ( 25/01/1982), for eleven years, the child grew up at grand-parents house. That the father never took interest in the child for eleven years. That from saudi Arabia. The mother is sending money for the upkeep of the boy, that the mothers father is a retired Tahsildar; owns buildings in Hyderabad and lands. His two other sons are in saudi Arabia and they are sending monies to him for maintenance therefore the maternal grandfather was in a position to take good care of the child. The learned single Judge observed, the father did not take any interest in the minor. The father has married again and has also a child. It is true that his present wife also averred in the Court that she would take care of the minor. But that was before the child was born. There is no knowing as to how she would treat the minor when he is sent to the petitioner-appellants house and it would psychologically affect him if he is asked to go and stay wi