The welfare of the child is the paramount consideration in determining custody, and provisions of personal law should be considered in conjunction with the relevant statutory law.

K.K. Sonawane, J.

This appeal is directed against judgment and order dated 31st October, 2015, passed by learned Judge, Family Court, Nanded, in Petition No. D-03 of 2014, rebuffing the relief of custody of minor son, namely, “Umarkhan” claimed under section 25 of the Guardians and Wards Act, 1890 (for the sake of brevity hereinafter referred to as “Act of 1890”).

2. It is not in dispute that parties to the proceeding are governed by Mohammedan Law. The appellant-original petitioner was married with respondent on 28-3-2010 as per the Muslim rites. Appellant was in service as Headmaster in the school at Manwat. He used to travel daily from the place of his residence at Parbhani to place of avocation at Manwat. After the marriage, respondent-wife joined company of husband for cohabitation. During wedlock, she begotten one male child on 14-3-2011 from the appellant-husband. It has been alleged on behalf of respondent-wife that since marriage she was being harassed and maltreated by her husband and in-laws on one or other pretext. There was marital discord in between the spouses and since delivery respondent-mother was residing separately with her minor son “Umarkhan” from appellant-husband. There were efforts for reconciliation in between the spouses. But, all efforts did not evoke result. At last appellant husband pronounced “Talaq” in presence of Quazi and witnesses. The copy of “Talaqnama” as well as cheque of Meher amount were sent to the respondent-wife, which she received it on 20-1-2012 through RPAD. Eventually, after “Talaq” marital relations in between appellant and respondent came to an end.

3. After divorce, in between spouses, appellant performed second marriage with one Nazia. She has also given birth to two children from appellant-husband. Respondent-estranged mother and her minor son started residing with her parents at Nanded. In the meanwhile, taking recourse of section 25 of the Act of 1890, the appellant-petitioner moved application for custody of minor son “Umarkhan.” Pending application, appellant carried out amendment and blamed the respondent that she has performed second marriage with one stranger Shaikh Javed. Therefore, she is disqualified for custody of minor son “Umarkhan”.

4. In response to notice of the petition, respondent-wife appeared in the proceeding before Family Court, Nanded and vociferously opposed the contentions putforth on behalf of appellant. She denied all allegations and contended that since marriage while cohabiting at her matrimonial home, she was being maltreated and harassed by appellant-husband and her in-laws. She had also initiated proceedings under the provisions of Protection of Women from Domestic Violence Act, 2005 etc. The subsistence allowance was also granted for herself and minor son “Umarkhan”. But, the appellant did not deposit any maintenance amount nor he had taken care of minor child “Umarkhan” since his birth. According to respondent, in view of provisions of Mohammedan Law, mother is entitled for custody of male child till he attained age of seven years. Respondent-wife admitted the circumstances that she had performed second marriage with Shaikh Javed. But, their marital relations became strained, which ultimately resulted into dissolution of marital tie. She had obtained divorce from second husband-Shaikh Javed and once again she started residing with her parents at Nanded. Therefore, no question arises for disqualification of the respondent on account of her second marriage. Hence, she requested to dismiss the petition.

5. In order to prove the claim, appellant-father examined himself vide (Exhibit-30). He has also adduced evidence of his mother Nasim Akhtar (Exhibit-39). He relied upon the various documents produced on record comprising divorce deed (Exhibit-33), marriage certificate (Exhibit-31), marriage certificate of respondent with Shaikh Javed (Exhibit-34) etc. In refuttal, respondent examined herself vide (Exhibit-51). Respondent stated that she ha