The paramount welfare of the minors is the sole consideration for allowing or disallowing an application for custody of the minor children.

MOHAMMED, J.:- This appeal arises from an order of the Family Court, Thrissur in a proceeding under Sections 7 and 25 of the Guardian and Wards Act, 1897 (hereinafter referred to as 'the Act'). The father of three minor children, who was the respondent before the Court below, is the appellant before us. The respondent-mother filed O.P. No. 743 of 1997 before the Court below seeking the custody of the three minor children.

2. The case of the respondent-mother is that her marriage with the appellant took place in the year 1985 and the three minor children shown in the petition were born out of the wedlock. The minor children were living with the mother till 14-9-1997. The two minor girls were studying in the VI standard in St. Joseph's High School, Enamakkal and the boy was studying in the II standard in G.M.L.P. School, Enamakkal. They were also attending to the instructions at Madrassa at Kettungal. From the custody of the mother, the children were forcibly taken away by the appellant's uncle and thereafter they were under the custody of the appellant. Since the children were forcibly removed from the custody of the mother, their education hindered. The children were not sent to the school or to the Madrassa and the father was not attending to the affairs of the children. Therefore, in view of the paramount interest and welfare of the minor children, the respondent-mother filed the above petition before the Court below.

3. The father of the minor-children appeared before the Court below and filed counter. His case is that he had divorced the mother of the children in October, 1997 and the allegations in the petition that he was not attending to the affairs of the children were denied. In sum, the contention of the appellant is that the interests of the minors had been sufficiently looked after and safeguarded by him and therefore the application should not be allowed.

4. The Family Court, after recording the evidence of the appellant and the respondent, came to the conclusion that the interests and welfare of the children require that the mother should be given their custody. In that view of the matter, the application was allowed and the mother was granted the custody of the minor children. The Court further directed the appellant to hand over custody of the children to the mother. Hence, the present appeal has been filed by the father of the minor children.

5. Heard the learned counsel appearing for the appellant and the respondent.

6. Since the parties are Muslims, the personal law applicable to them will have to be examined. Section 352 of Mulla's Principles of Mohammedan Law deals with the right of the mother to custody of infant children. The said section provides, thus :-

"The mother is entitled to custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband, in which case the custody belongs to the father."

It is an admitted case that the mother of the minor children has not contracted a second marriage. On the contrary, it has come out in evidence that the father of the minor children had contracted a marriage after divorcing the mother of the minor children. Hence the mother is entitled to the custody of minor children. Section 352 aforementioned will have to be read along with Section 17 of the Act. Section 17(1) of the Act provides thus :

"In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject appears in the circumstances to be for the welfare of the minor."

When Section 17(1) of the Act is read conjunctively with the provisions contained in Section 352 aforementioned, what would reveal is

that the paramount welfare of the minors is the sole consideration for allowing or disallowing an application for cust