Law:

Section:

Guardians and Wards Act (VIII of 1890)--- ----Ss. 12, 17 & 25---Custody of male minors---Second marriage of mother---Effect---Preferential right of father for custody of male minor--- Scope--- Welfare of minor--- Scope--- Mother/petitioner contended that two courts below had wrongly decreed custody of minors to the respondent/father as there was no substitute to mother's lap---Father/respondent contended that the minors were actually living with their maternal grandparents after second marriage of their real mother---Validity---Welfare of the minors to be determined while keeping in view their mental, intellectual, moral and spiritual well-being---Guardian Court had also to look into qualifications of parents, the age, gender, religion of the minor, the character and capacity of the proposed guardian and his/her nearness of kin to the minor as provided under S.17 of the Guardians and Wards Act, 1890---Welfare of the minor was to prevail and should be the supreme consideration for deciding the issue of her/his custody---Record revealed that as a consequence of suit for maintenance, the maintenance was being provided by the father during execution proceedings---Mother produced contradictory evidence pertaining to the education of the minors and two courts below had rightly observed that the mother who was living with her second husband was blessed with a daughter while said husband had also liability to other children from his first wife---Islamic Law mandated that father being natural guardian of minors had preferential right of custody especially when the minors were male and were above the age of seven years---In order to challenge the said preferential right of the father, the mother was bound to establish some exceptional circumstances which could lead the court to come to the conclusion that the welfare of the minors lay with the mother---Father, in the present case, was a young man of about 34 years and was doing a job but left his job and also by not contracting second marriage had devoted his life for his children---Father of the minors was living in city area in joint family system with the paternal grandparents of the minors, who could look after…

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