The competence of a mother to maintain an application under Section 25 of the Guardians and Wards Act, emphasizing the interpretation of the Act's provisions and the constitutional obligation to secure justice for women.

1. Whether a mother is competent to maintain an application under section 25 of the Guardians and Wards Act 1977 Svt for return of ward(s) to her custody, is the short controversy involved in this petition.

2. The appellant, mother of Master Naveed aged 4= years and Ms. Aiman aged below three years, approached the Court of Learned Ist. Additional District Judge, Srinagar with an application under Section 25 of the Guardians and Wards Act, 1977 Svt. (hereinafter called the Act) for the return of Master Naveed and Miss Aiman to her custody on the ground that they were removed from her custody by their father/respondent herein and she was better placed to take care of her wards as compared to respondent.

3. The appellants case before the Learned Trial Judge was that the wards were removed by the respondent from her custody on 8.11.2009 and were thereafter in custody of the respondent. The appellant in her application, after tracing the history of marital discord, insisted that the appellant under Muslim Shariat Law governing the parties in the matter of Guardianship, had a right to have custody of her male child till he attains the age of seven years and the female child till she attains the age of puberty and thus, the appellant had a right to ask for return of her children to her custody. The appellant insisted that as her son was four years of age and daughter was only of 2= years of age, the appellants right of hizanet, was to be respected by the respondent. The appellant pleaded that she was a house wife and always at her residence and thus able to take adequate care of her minor children, whereas respondent being a tailor by profession having a shop at Rajbagh, Srinagar at a distance of 15. K.ms from the house was not in a position to take good care of the children.

4. The application was resisted by the respondent on the ground that it was not maintainable and only course open to the appellant was to press into service Section 7 of the Act. The respondent put blame for differences and disagreement that afflicted marital relationship on the appellant and her confrontationist behavior. The appellant was accused to have exposed the respondent and his family members to discomfort, inconvenience and torture. The respondent claimed to have better right to the custody of his children having regard to his status of natural guardian of the minors and disputed that there was any cause for return of the custody of the minors.

5. The Learned Trial Judge restricted the consideration of the application to its maintainability and did not go into the question of welfare of the minors or whether the welfare of the minors warranted return of the minors to the appellant. Learned Trial Judge recorded agreement with the contention of the Counsel for the respondent and held the application under Section 25 of the Act to be not maintainable. Reason that persuaded Learned Trial Judge to hold the application under Section 25 of the Act not maintainable, finds expression in the following observations of the court:-

"Jurisdiction of a Court to grant relief to a suitor depends upon the pleadings made by her /him in this behalf and in view of the petitioners limited pleadings in the present case seeking only change in custody of the minor wards and nothing beyond that, thus no jurisdictional competence lies in this Court to grant the relief as prayed by the petitioner".

6. From the above observations, it appears that the appellants application under Section 25 of the Act was thrown out at the very threshold on the following grounds:-

i. That the application did not disclose that the wards had left or were removed from the custody of the appellant by the respondent.

ii. That the appellant did not aver in the application under Section 25 of the Act that custody of the minors with the appellant would be for the welfare of the minors.

7. The Learned Trial Judge before arriving at the conclusion that the application under Section 25 of the Act was not maintainable

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