Law: Guardians and Wards Act, 1890

Section: 17,25

Law: Guardians and Wards Act, 1890

Section: 17,25

Guardians and Wards Act (VIII of 1890)-------Ss. 17 & 25---Azad Jammu and Kashmir Family Courts Act (XI of 1983), S.5, Sched. & S.14---Guardianship---Welfare of minor---While deciding the question of guardianship and custody of minor, the paramount consideration would be welfare of the minor---Provisions of personal law to which a minor was subject, should be guideline for entitlement to the custody which was further subject to two limitations viz. provisions of S.25 of the Guardians and Wards Act, 1890 and welfare of the minor---If consideration of welfare of minor or the conclusion arrived at in consequence of the guideline in S.25, Guardians and Wards Act, 1890 would make it impossible to follow the guidelines of personal law then the same could be abandoned and steps most conducive to the welfare of minor should be taken---If the consideration of personal law was not inconsistent then it should be followed---While appreciating the welfare of the minor, it had to be seen that the welfare would include moral, spiritual and material well-being and a court would have regard to the age, sex and religion of the minor; the character and capacity of the proposed guardian, his nearness of kin to the minor and preference of the minor, if he or she was intelligent enough to make it---Father being a natural' guardian was responsible for the maintenance of minor, but while deciding the question of custody, the mother must be preferred because of her warmth of affection---In the present case appeal had been directed by the mother of a minor daughter against of the Family Court whereby custody of one daughter was given to appellant/mother while the father/respondent was held entitled to the custody of other daughter---Respondent/father did not file any application claiming the custody of daughter---No justification, in circumstances existed to hold that father, who neither claimed the custody nor was able to look after the minor himself, was entitled to the custody---Impugned order was amended in appeal and appellant (mother) was also held entitled to the custody of daughter given by the Family Court in custody of father/respondent. Sardar Shoukat Hayat Khan for…

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