Law: Guardians and Wards Act (VIII of 1890)

Section: 25, 17, 8, 10, 19

(a) Guardians and Wards Act (VIII of 1890) -S. 25-Custody of minors-Christian spouses -Application by father for restoration of minor to his custody-Question of custody to be determined only on consideration of the welfare and interest of minors. It cannot be denied that Christians have no personal law governing the law of custody of minors. The matter must be decided by equity and good conscience, generally interpreted to mean the rule of English Law if found applicable to society and circumstances in the country. Turning to the principles of Court of Chancery it would be found that they are not different from the criteria laid down in section 17 of the Guardians and Wards Act. There also in cases of custody the welfare and happiness of the infant is the paramount consideration, to which all others yield. Regarding the preference of one parent over the other, the rule laid down in Halsbury's Laws of England, 3rd Edition, Volume XXI, at page 194, in para. 429 is that "other things being equal it is preferable that a child of tender years should be with its mother. As a general rule it is better for small children and especially little girls, to be brought up by their mother ; and this, of course is a consideration. It is generally desirable to keep brothers and sisters together and not to split the family up more than is necessary. The principle of preference is, therefore, in line with the provisions in section 17 of the Guardians and Wards Act about European British subjects. In regard to a female child the right of hizanat vests in the mother till the infant reaches age of puberty. Section 17(4) requires that the right of control of a female child should preferably be given to the mother without any limitation of age. The minors have been in the custody of the mother for some time and she had looked after their educational carreer. The minors are being educated in a very good institution. It is further established that the mother is. earning a salary of more than a thousand rupees per month while the respondent is earning only Rs. 550 per month. She has an exclusive accommodation for the family in a very good locality of the provincial metropolis.…