Welfare of the child would be paramount

consideration of the Court as it is the matter for

well being of the child.

2.

The present petition is filed by the father

of the minor child R.Asadulla, who is the husband of

the

respondent

assailing

the

order

dated

13.12.2018 on I.A. No.3 filed by the mother of the

minor under Section 12 of the Guardians and Wards

Act, 1890 (hereinafter referred to as ‘the G & WC

Act, 1890’ for short) in G and WC No.149/2018

3

pending on the file of I Additional Principal Judge,

Family Court, Bengaluru (hereinafter referred to as

‘the Trial Court’ for short) whereby the interim

custody of the minor child aged about four years

was directed to be handed over to the respondent-

mother herein.

3.

The parties herein are referred to as

petitioner-father and respondent-mother for the

sake of convenience.

4.

Heard the learned Counsel for the

petitioner-father and the learned Counsel for the

respondent-mother and perused the material on

records and also the impugned order of the Trial

Court.

5.

The respondent-mother filed petition

under Section 10 and 7(a) of the G & WC Act, 1890

read with Section 7(g) of the Family Court Act,

1984 seeking to appoint herself as the guardian of

4

the minor. During the pendency of the petition, the

respondent-mother filed an application-I.A.No.3

seeking interim measure for the custody of the

minor child R.Asadulla. The petitioner-husband filed

objections contending that the respondent-mother

is disentitled for the custody of the minor child R.

Asadulla.

6.

The learned trial Judge on appreciation

of the material on record held that the child is of

tender age which requires love, affection and care

of the mother, as such, reserving liberty of

visitation rights to the father, the custody of the

minor child was given to the respondent-mother

and accordingly I.A.No.3 was allowed and the

petitioner-husband was directed to hand over

interim

custody

of

the

minor

child/Master

R.Asadulla.

5

7.

Being unsatisfied with the order passed

by the I Additional Principal Judge, Family Court,

Bengaluru on I.A. No.3 in G &WC.No.149/2018

petitioner-father has preferred the present petition.

8.

It is the contention of the learned

Counsel,

Nandish

Gowda

G.B.

appearing

for

Sri. R.B. Sadashivappa representing the petitioner

that the parties are not governed by the Guardians

and Wards Act, 1890 but they are governed by the

Muslims Personal Law and contended that the

respondent-mother is not entitled for the custody of

the minor son as she is the divorced wife having

obtained Khulanama by mutual consent and as per

the provisions envisaged under the Mohammedan

Law and as such, sought to dismiss the application

filed by the respondent-mother and allow the

present petition.

6

9.

Per contra the learned Counsel for the

respondent-mother sought to justify the order

passed by the learned Trial judge and contended

that as per the provisions of the Mohammedan Law

the interim custody of male minor child upto the

age of seven years has to be accorded to the

respondent-mother and also contended that the

trial Court considering the interest and welfare of

the child has rightly ordered custody of the minor

child to the respondent-mother. It is also brought

to the notice of this Court the subsequent events

that have been transpired between the parties and

contended that the petitioner-husband during the

pendency of the petition, has remarried and in the

said wedlock a child is born and as such, contended

that the interim custody if given to the petitioner-

husband would be against the welfare of the child.

7

10. Having heard the learned counsel for the

parties the only point that arises for consideration

in the petition is :

‘whether divorced wife is entitled for custody

of minor child under the Mohammedan Law?’

11. It is not in dispute that the parties are

Muslims and governed by the Personal Law. It is

also not in dispute that a Khulanama was entered

into between the parties and the husband and wife

are livi