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Allahbad High Court
M.P.MEHROTRA
Ainunnisa - Appellant
Versus
Mukhtar Ahmad - Respondent
Decided On : 05/06/1974
GUARDIANSHIP - CUSTODY OF MINOR - WELFARE OF MINOR - FATHER'S RIGHT AS NATURAL GUARDIAN - SECTION 25, GUARDIANS AND WARDS ACT, 1890 - INTERPRETATION AND APPLICATION.
Fact of the Case:
A father, Mukhtar Ahmad, filed an application under Section 25 of the Guardians and Wards Act, 1890, seeking the return of his alleged son, Mohd. Yusuf, from the custody of the child's mother, Smt. Ainun Nisa. The trial court allowed the application, holding that the minor was the son of Mukhtar Ahmad and not from Smt. Ainun Nisa's second marriage. The mother appealed the decision.
Finding of the Court:
The High Court found that the trial court's finding on the paternity of the minor was debatable and that there was a possibility that the finding may not be correct. The court also found that the welfare of the minor would not be served by disturbing his present custody with the mother, considering his age, preference, and psychological well-being.
Issues: 1. Whether the trial court erred in finding that the minor was the son of Mukhtar Ahmad and not from Smt. Ainun Nisa's second marriage. 2. Whether the welfare of the minor would be better served by disturbing his present custody with the mother.
Ratio Decidendi: 1. The court held that the trial court's finding on the paternity of the minor was debatable and that there was a possibility that the finding may not be correct. The court emphasized that the welfare of the minor is of supreme importance and not much weight is to be attached to the rights of the natural guardian. 2. The court found that the minor had exercised an intelligent preference to remain in the custody of the mother and that disturbing his present custody would not be in his best interests. The court considered the minor's age, preference, and psychological well-being in reaching this conclusion.
Final Decision: The High Court allowed the appeal, set aside the judgment of the trial court, and dismissed the application of Mukhtar Ahmad under Section 25. The parties were ordered to bear their costs throughout.
Key Points: - Welfare of the minor is the paramount consideration in Section 25 custody decisions; not the rights of the natural guardian. (!) (!) - The minor's intelligent preference and psychological well-being are weighed in determining custody, especially when the minor has resided with the mother since birth. (!) (!) (!) - Disturbing the existing custody arrangement requires showing that such disturbance serves the minor’s welfare, even if the father is the natural guardian; the court may retain custody with the mother where it serves the minor’s best interests. (!) (!) (!) - The trial court’s findings on paternity may be debatable and are not conclusive; welfare considerations can override contested paternity findings. (!) (!) (!) - The decision emphasizes aligning with welfare over strict application of personal or religious law, allowing the court to override the natural guardian’s rights when necessary for the child’s welfare. (!) (!) (!) - The court can consider the minor’s age, upbringing, and the presence of another guardian (mother or step-parent) when determining custody in the minor’s best interests. (!) (!) (!)
JUDGMENT :- This appeal is directed against the order of the District Judge allowing an application under Section 25 of the Guardians and Wards Act of 1890. The respondent No. 1, Mukhtar Ahmad, claiming to be the real father of a male minor named, Mphd. Yusuf, sought for the return of his custody as the guardian of the said minor.
2. The brief facts are these: The appellant, Smt. Ainun Nisa, is the daughter of the respondent no. 2, Mohd. Munir. The appellant was married to the respondent No. 1, Mukhtar Ahmad. In 1962 she was divorced by her said husband and after that divorce the latter remarried another woman from whom he has several children. Smt. Ainun Nisa also remarried one Sheikh Bhullan. There is a minor son of Smt. Ainun Nisa whose name, according to Mukhtar Ahmed, respondent No. 1, is Mohd. Yusuf but according to Smt. Ainun Nisa, the appellant, and Mohd. Munir, the respondent No. 2. his name is Ghani, Mukhtar Ahmad claimed that the said son of Smt. Ainun Nisa was begotten by him. However, the lady denies this allegation and says that the said son is from her second marriage with Sheikh Bhullan and his real name is Ghani and not Mohd. Yusuf as alleged by Mukhtar Ahmad. In fact, Ainun Nisa has denied that she ever lived with Mukhtar Ahmad as husband and wife and, therefore, there was no question of any issue being begotten by Mukhtar Ahmad. It has been further pleaded by the lady and by her father, Mohd. Munir, that in any case, the welfare of the said minor demands that he should continue to reside with his mother and should not be transferred to the custody of Mukhtar Ahmad who has a second wife with him and from whom he has several children. The District Judge, before whom the application under Section 25 was made has held that the minor in question is the son of Smt. Ainun Nisa from Mukhtar Ahmad and not from her second marriage with Sheikh Bhullan. The trial Court reached the said conclusion on the basis of its examination of the oral and documentary evidence. So far as the documentary evidence is concerned, the trial Court has placed its principal reliance upon a notice dated 19-7-1962 which was allegedly issued by Smt. Ainun Nisa to Mukhtar Ahmad applicant. In this notice, there is a statement to the effect that she had gone to her Maika along with her son. The trial Court has said that the document in question had been duly proved on behalf of the respondent No. 1. Mukhtar Ahmad. I do not think that the said finding is correct. The notice dated 19th July, 1962, has not been exhibited. No one has proved the handwriting of the said notice. Mukhtar Ahmad appeared as A. W. 4 and he has only said:
"Uske bad Ainun Nisa ki taraf se notice mujhko mili jo kagaz No. 1 fihriest 12 Ga 1 ka hai."
This is not proving the handwriting. The notice is in Hindi whereas it has not even been proved that the lady could read and write. Her disputed thumb impressions have been proved and the handwriting expert has been believed on that point. If the lady was affixing her thumb impression on the postal acknowledgment it is not clear how she could pen the notice dated 19-7-1962 in Hindi. This notice has not been sent on her behalf by any counsel but purports to be by the lady herself. It is to be remembered that we are dealing with a case of a Mohammedan lady and the alleged reply is in Hindi. Therefore, I do not think that the trial Court' finding on the question of the paternity of the minor can be said to be completely beyond the pale of doubt. However, I will not discuss this aspect of the matter in detail as I do not propose to base my judgment on this aspect of the controversy, I am basing it on other considerations which I state hereinafter.
3. Even if the minor be held to be the real son of Mukhtar Ahmad, still, in the circumstances of the case, I do not think the trial court was justified in directing that he should be taken away from the custody of the real mother and should be sent to the custody of the father. It is true
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