Law: Guardians and Wards Act (VIII of 1890)

Section: 25

Guardians and Wards Act (VIII of 1890), S. 25 (1)-Father applying for return of his minor child from custody of its mother-- Guardian Judge restoring custody of minor to father on condition of his re-imbursing expenses incurred by mother in maintaining child-- Imposition of condition, held, illegal. JUDGMENT   By his order dated the 31st of March 1961, Mr. Sadiq Ali G. Khoja, First Class Sub-Judge at Hyderabad, has directed that the custody of a minor boy named Kalu alias Umar Din, aged about 10 to 12 years, shall be handed over to the father, namely, the appellant before me, on the condition that he pays a sum of Rs. 500 to the respondent mother Mst. Rahiman who had been maintaining the child from 1951 to 1961. In that very order it was further directed that the custody of the minor daughter of the parties, namely, Mst. Noor-un-Nisa, shall remain with the mother, as the girl had not attained the age of puberty. The learned Judge considered that the fact that the respondent had married a stranger was not enough to deprive her of the custody of the minor daughter at this stage.   Finally, it was ordered that the appellant father should pay a maintenance allowance of Rs. 10 p.m. for his daughter. In the present appeal, only that part of the order of the learned Guardian Judge is challenged which seeks to make the restora tion to the appellant of his son's custody conditional on his paying Rs. 500 to the respondent. It is contended that section 25 of the Guardians and Wards Act does not confer any such power on the Guardian Judge, as the sole criterion laid down in that section is the welfare of the minor. Mr. I. A. Kazi, the learned counsel appearing for the respondent, submits that thecondition regarding the payment of Rs. 500 was imposed by the Guardian Judge with a view to ensuring that the father had the necessary means to support the boy in case the latter is delivered to him. This argument does not find support from the judgment of the Guardian Judge. The relevant portion of the judgment bearing on this point is to the following effect:-   "The only grievance of the mother to be met with is the non-payment of the maintenance for the…