The welfare of the minor children is the paramount consideration in custody disputes, and the personal law of the parties must be considered alongside the best interest of the child.

1.These two appeals under Section 19 of the Family Courts Act have been filed by the appellant-husband against the judgment and order dated 20.11.2012 passed by the Principal Judge, Family Court, Kanpur Nagar whereby the application filed under Section 25 of the Guardianship and Wards Act by the appellant-husband being Misc Case No. 50/70 of 2009 was rejected and the application filed by the defendant-wife under Section 25 of the Guardianship and Wards Act being Misc Case No. 26/70 of 2009 was allowed with directions that the Master-Irish (minor) shall be in the custody of her mother till he attains majority and further the appellant-father was directed to give the custody of minor daughter namely Km. Urooz aged about 8 years to her mother Isma Alam, the respondent wife.

2.The brief facts, which are relevant for disposal of these appeals, are recapitulated as under:

3.The marriage of appellant-husband and defendant wife was solemnized on 11.8.1998 according to Muslim rites and customs at Kanpur. After the marriage, the wife stayed at her husband's house happily and out of the said wedlock and cohabitation one male child namely Iris Irshad Alam was born on 13.11.2002 and a female child namely Urooj Irshad Alam was born on 5.12.2005. On 17.12.2008 the respondent wife left her matrimonial home along with her male child on account of matrimonial discord between them and thereafter she did not return. The appellant husband even went to the extent of making allegations of character assassination against his wife. The appellant husband allegedly used to abuse the respondent wife and vice versa and they were reportedly indulged in beating each other very often.

4.On 19.12.2008, the appellant husband gave 'Talaq' to the plaintiff-respondent wife and fatwa of ‘Talak’ was issued by the 'kaji' and notice of 'Talaq' was sent to the respondent wife through registered post. After the 'Talaq', the appellant husband is stated to have filed a suit for the declaration of divorce being suit no. 1294 of 2010, which was decided ex-parte in favour of the appellant husband vide order dated 15.7.2011. It was held that the 'Talaq' was given in presence of the witnesses and according to ‘Shariyat’. The said decree has become final as it has not been challenged any where in any proceedings by the respondent wife.

5.In between, the appellant husband re-married another muslim lady on 17.5.2009 according to the Muslim customs. Differences between the appellant- husband and his first wife ultimately resulted into decree of divorce in favour of the plaintiff-husband. Thereafter husband filed petition under Section 25 of the Guardians and Wards Act, 1890 (for short as “'1890 Act'”) being Petition No. 50/70 of 2009 seeking custody of the male child Iris Irshad Alam who had been taken away by the respondent wife at the time of leaving the house. The respondent wife objected to this claim of custody of the male child by filing objections and simultaneously she also filed a petition being Petition No. 26/70 of 2009 under Section 25 of the 1890 Act' for the custody of the female child namely Urooj Irshad Alam who was left at the house of the appellant-husband at the time of her departure from matrimonial home.

6.Both the petitions filed under 1890 Act' were clubbed together and the petition No. 50/70 of 2009 was made the leading case by the court below. The parties led their evidences. The appellant-husband appeared as P.W-1 and the respondent wife appeared O.P. W.-1 and she also produced one private detective namely Kirtikesh Kavi as O. P. W.-2 whose testimony was rejected by the court below.

7.In the meantime, during the proceedings of the case under Section 25 of the Act 1890, the court below passed orders dated 4.12.2009 and 17.9.2009 that the respondent wife would not take away the male child Iris Irshad Alam out of the city of Kanpur. Despite the aforesaid orders, the respondent wife took away the male child Irish Irshad Alam out of the city of Kanpur to Farida

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