Law:

Section:

(a) Guardians and Wards Act (VIII of 1890),S. 4 (2)­"Guardian"----Includes person having custody of child. Under section 4 (2) of the Guardians and Wards Act, a `guardian' is defined as any person who has the care of the person of a minor and in this sense even a mother who has only the custody of the child is its guardian. The word `guardian' is used in the Act in the sense which includes a person who has the custody of the child. A I R 1932 All. 215 ref. (b) Guardians and Wards Act (VIII of 1890), S. 25-Children in custody of mother removed by father-Mother can apply under S. 25-Removal-Nature of. It is to be remembered that Muhammadan Law gives the mother a right to custody, even though the father is a person who is entirely fit to be the guardian of his child. If the child be removed from the custody of the mother, even though the person who takes away the child be the father, who is the guardian himself, section 25 is applicable. Any other interpretation leaves the mother entirely without a remedy so far as the Guardians and Wards Act is concerned. A removal from custody would take place even if the mother voluntarily left and was prevented from taking the children with her, just as it would occur if she was turned out of the house and the children remained where they were. The application under section 25 is maintainable. (c) Muhammadan Law--- Female's right to custody of minor----­Ordinarily not to be defeated on ground of her inability to main­tain child, Ordinarily a female's right to custody cannot be defeated on the ground of want of funds to maintain the child. The Muhammadan Law does not regard it as a disqualifica­tion for a female. We are to presume that the benefit of the minor is in that custody which Muhammadan Law enjoins till the contrary is proved. Muhammad Bashir v. Ghulam Fatima P L D 1953 Lah. 73 ref. JUDGMENT B. Z. KAIKAUS, J.---This first appeal from order arises out of an application under section 25 of the Guardians and Wards Act filed by Mst. Niaz Bi appellant against Fazal Elahi respon­dent for the custody of her three daughters aged 13, 10 and 6, respectively. This application was filed on the 10th of January 1952 and the…

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