The welfare of the child is the paramount consideration in custody disputes, overriding legal rights under personal laws.

JUDGMENT :

Hon'ble Anil Kumar, J.

1. Heard, Sri S.P.Singh, learned Counsel for the appellant and Ms. Archana Singh Advocate, holding brief of Sri Ziauddin Khan, learned Counsel for the respondent.

2. Facts in brief of the present case, as per record, are that marriage between appellant Israr Ahmad and Smt. Zaafrana was solemnized on 03.06.2006 as per Muslim rites and customs and out of the wedlock of appellant and Smt. Zaafrana and on 16.05.2007 one baby boy was born namely Azazul Hussain. Matrimonial relation between the appellant Israr Ahmad and Smt. Zaafrana became strained and on 26.04.2008 Smt. Zaafrana left her matrimonial home. In view of the said factual background, the appellant Israr Ahmad filed a case bearing Misc. Case No. 30 of 2010 ( Israr Ahmad Vs. Izazul Hussain ) before the Principal Judge, Sitapur for custody of his minor child i.e. respondent no. 1-Azazul Hussain.

3. On 07.08.2018, Principal Judge, Family Court, Sitapur dismissed the case of the appellant for custody of minor child namely Azazul Hussain.

4. Challenging the judgment and order dated 07.08.2018, the present appeal has been filed.

5. Learned Counsel for the appellant submits that the matter pertains to the MOHAMMEDAN LAW and the question of guardianship was to be considered by the Principal Judge, Family Court in the light of the MOHAMMEDAN LAW , in which it has been provided that in respect of custody of a male child the father is entitled to its custody after the male child attains the age of seven years and the mother has no right and authority to retain custody of a male child after it attains the age of seven years. Learned Counsel for the appellant further submits that plaintiff-appellant has specifically pleaded and led evidence to the effect that the future of defendant-respondent no. 1 under the guardianship of defendant-respondent no. 2 is in dark as she is unable to give proper education. This fact remained uncontroverted and it amounts to admission by the defendant-respondent no. 2, but the learned Principal Judge, Family Court, Sitapur has failed to consider the undertaking, the fact and the evidence led by the plaintiff-appellant and recorded a perverse finding to the effect that welfare of defendant-respondent no. 1 is with defendant-respondent no. 2.

6. Learned Counsel for the appellant further submits that the judgments which have been cited in the order impugned are not related with the Muslim law and have been misinterpreted while specific undertaking was given by the plaintiff-appellant before the Court that he will look after the defendant-respondent no. 1 and provide good education and facilities to defendant-respondent no. 1.

7. Learned Counsel for the appellant further submits that the impugned judgment and order dated 07.08.2018 has been passed ex-parte and as such, the fact which was pleaded by the plaintiff-appellant and the evidence which was led by the plaintiff-appellant amounted to admission and, as such, on the basis of the uncontroverted fact and evidence, learned Principal Judge, Family Court, Lucknow ought not to have dismissed the application filed by the appellant, rather the same was liable to be allowed.

8. In rebuttal, Ms. Archana Singh Advocate, holding brief of Sri Ziauddin Khan, learned Counsel for the respondent submits that there is no illegality or infirmity in the impugned order dated 07.08.2018 passed by the Principal Judge, Family Court, Sitapur and in its order the learned court below has specifically mentioned that divorce/talak has already been taken place between the appellant Israr Ahmad and Smt. Zaafrana on 06.07.2013 and since 2008, when the responden