Law:

Section:

Guardians and Wards Act (VIII of 1890)--- ----Ss.17 & 25---Application for custody of male minors above the age of seven years by mother---Preference of minors---Scope---Minors were living with father and step-mother since birth---Effect---Welfare of minors--- Scope--- Petitioner/father contended that both the courts below had wrongly granted custody of minors above the age of seven to the mother---Respondent/mother contended that there was no substitute for mother's lap---Validity---Record revealed that father had moved application under S.17(3)(5) Guardians and Wards Act, 1890 before Family Court and appellate court praying to record the statements of minors but request was disallowed for no cogent reasons---While deciding the issue of custody of minor Court had to consider all the circumstances---In the present case, admittedly, the minors were living with their father since 2015, when the parents of the minors started living separately and finally the marriage was dissolved by way of Khulla the same year---Father was a natural guardian of minors and with him the children were living since their birth and there was step-mother and grandmother to look after their well-being and there were no adverse allegations against their attitude towards minors---Right of Hizanat lay in favour of mother only up to seven years in case of male child, admittedly in the present case both the minors were more than seven years of age---High Court during the course of hearing sent both the parents out of the Court room and one by one both of minors were asked to disclose their preference as they looked intelligent enough to form their opinion---Minors disclosed about their schooling, their daily routine and repeatedly expressed their wish to live with their father as they were being properly looked after by their grandmother, step-mother and father---Preference of the minors could not be ignored altogether and had to be given due importance---Minors needed supervision of their father at such growing age to groom properly---High Court observed that welfare of the minors, in the present case, lay with the father while charting out visitation schedule for mother to meet them…

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