Law: Guardians and Wards Act, 1890

Section: VIII,7,17,25

(a)    Guardians and Wards Act (VIII of 1890)--- ----Ss. 7, 17 & 25---Custody of minor---Determining factors/ considerations--Welfare of minor---Paramount consideration---Foremost consideration to decide the question of custody of a minor is his or her welfare and betterment---Welfare of the minor would overweigh against all other considerations---Under S. 17(2) of the Guardians and Wards Act, 1890, (Act) character and capacity of the proposed guardian as well as age and sex, is also an important factor to be considered while determining the welfare of the minor---Right of custody of minor is not an absolute right of any of the parent rather it is always subject to the welfare of the minor---Court in the light of facts and circumstances of each case considers the question of custody on the basis of welfare of minors and there can be no deviation to this settled principle---Under Muhammadan Law a Muslim father being the natural guardian of the minor has the preferential right of custody of minor but this rule does not apply rigidly. (b)    Guardians and Wards Act (VIII of 1890)--- ----Ss. 7, 17 & 25---Custody of minor---Welfare of minor---Paramount consideration---Hizanat, right of---Plea of second marriage of wife/respondent--Right of the one of the parents versus welfare of minor---Preference---Trial court on the ground of second marriage of wife and mothering of another female child from second husband granted custody of minor to her first husband/petitioner---Appellate Court granted custody to mother/respondent on the ground of Hizanat---Validity---Right of Hizanat with respect to male child goes to the mother until minor becomes independent and capable of understanding things, that is to say, he becomes capable of easy walking, eating, drinking and performing other natural functions without assistance---Hizanat with respect to a boy ceases at the end of seven years of age---Although Muhammadan Law delineates that the mother loses her right to the custody of minor if she re-marries, however, this is not an absolute rule and may be departed from in exceptional circumstances to justify such departure, and even in a…