The welfare of the child is the paramount consideration in determining custody of a minor child.

JUDGMENT - A.V. SAVANT, J. :---This is an appeal against the judgment and decree dated September 20, 1994 directing the father to hand over the custody of the minor son Mohammad Wasim to the mother Smt. Shahina Abdulsattar Kudachikar. There is no dispute before me that the original application was made by the mother under section 25 of the Guardians and Wards Act, 1890. On evidence being led, the trial Court has come to the conclusion that the mother was entitled to the custody of the child. Consequently, Miscellaneous Civil Application No. 81 of 1994 for custody has been allowed. Hence, this appeal.

2. A few admitted facts necessary for the disposal of this appeal may be stated as under:

The parties are Sunni Muslims and were married at Pune on 17th November, 1988. The father is working as a Medical Representative with Ebers Pharmaceuticals Limited and gets a salary of Rs. 4,500/- per month. He is stationed at Miraj in Sangli District, but from the very nature of his job he is required to travel around. The mother is working with the Telecommunications Department at Sangli and gets Rs. 3,000/- per month as her salary. On 7th May, 1990 son Mohd. Wasim was born out of the wedlock. On 15th August, 1991 daughter Heena Kausar was born. On 15th May, 1994 the appellant gave talaq to the respondent and there is no dispute before me that on April 20, 1995 he has married one Noorjehal Tahasildar.

3. Misc. Civil Application No. 81 of 1994, out of which this appeal arises, was filed by the mother on 13th June, 1994 for custody of her son Mohd. Wasim. The mother alleged in her application that in accordance with the Personal Law applicable to the parties, she was entitled to the custody of her son. The appellant was already having an affair with Noorjehan Tahasildar when the application was filed on the 13th June, 1994 and now he has married her on April 20, 1995. The mother complained that the child was snatched from her custody and was illegally detained by the father in his custody. The child needed mothers care, love and affection. Since the child was below 7 years of age, she was entitled to custody of her male child. She was able to look after her son and the welfare of her son was safer with her.

4. The appellant filed his say in reply to the application for interim relief, which say at Exh. 12 was treated as the written statement. He denied the allegations made against him. He contended that he was able to look after his son. He denied having an affair with Noorjehan Tahaslidar. In short, the appellant contended that he was able to look after his son Mohd. Wasim, whose welfare was safer with him. This say, at Exhibit 12 has been filed on 29th June, 1994.

5. The parties examined themselves in support of their contentions. The evidence of the respondent mother, who was the applicant in the trial Court, is at Exhibit 26 and the evidence of te appellant is at Exhibit 37. In her evidence, the respondent contended that she had two children from the appellant. She was entitled to the custody of both the children. However, the father had snatched the son away on 22nd May, 1994, at Miraj, and when the mother tried to see the child thereafter, the appellant had even refused to permit her to meet the son. She deposed that she was able to look after her son. There is nothing in her cross-examination which detracts from the claim which she made in her application and in her examination-in-chief.

6. The appellant examined himself and contended that he was better suited to look after his son, though his job involved touring. He contended that he was earning more than his wife. However, in his cross-examination he had to concede that his being a touring job, he had to go out of Miraj. He feigned ignorance about the School in which his daughter Heena was studying. He denied that he had snatched away the son from the mother or that he had denied permission to the mother to meet the son. He contended that it was on his own volition that the son was stayi

Click Here to Read the rest of this document