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First Appeal from Original Order No. 346 of 1979, decided on 22nd March 1980.
----Ss. 7, 17 & 25‑Appointment of guardian‑Welfare of minor to be guiding factor‑Principal consideration : to secure welfare of minor. [Custody of minors].
The welfare of the minors has been pointed out as the guiding factor in section 7 of the Guardians and Wards Act, 1890 in the matter of appointment of a guardian. Section 17 of the Act has expressly subordinated the personal law of the minors regulating guardianship to the paramount consideration of welfare of the minors and certain directions in which the welfare of the minors should be considered are also laid down therein. Again in section 25 of the Act it is enacted that the Court may order the return of the ward to the lawful custody of the guardian only if it thinks it necessary for the "welfare" of the ward. The principal considerations which have been laid down under section 17 of the Guardians and Wards Act in order to secure this welfare are at least nine in number, namely (a) age, (b) sex, (c) religion of the minor, (d) character and capacity of the proposed guardian, (e) nearness of kin to the minor, (f ) wishes of the deceased parent, (g) any existing or previous relations of the proposed guardian with the minor or his property, (h) if the minor is old enough to form an intelligent preference, that preference has to be considered. These tests are no doubt laid down under section 17 of the Act but are equally relevant in considering the welfare of the minor under section 25 of the Act. Therefore an arduous duty falls upon the Court to arrive at a just conclusion in such matters and the Court should place himself in the position of a wise father in selecting a person best fitted to assure the welfare of the minor.
Mst. Masna Devi v. Makhar A I R 1936 Pesh. 207 ; In re: Lovejoy Patell A I R 1944 Cal. 433; Mst. Feroze Begum v. Lt.‑Col. Muhammad Hussain 1978 S C M R 299 and Rahim Ullah Choudhury v. Mst. Sayeda Helali Begum and others 1974 S C M R 305 ref.
‑‑ Ss. 7, 17 & 25‑Appointment of guardian‑Two girls aged 16 years and 3 years and two boys aged 10 and 7 years‑Mother of minors not shown to be leading an immoral life but leading proper family life after divorce ‑ Mere fact that she herself does not enjoy sound financial position ‑ Held : Of no significance while dealing with custody of minors‑Sex of girl aged 16 years to be given important consideration and should remain in custody of mother Consideration whether minor aged enough to make an intelligent preference plays a decisive role in determining suitability and desir ability of a person desirous of custody of minor‑Father, although natural guardian, guilty of culpable negligence and inimical attitude towards minors‑Held: Not a fit person for custody of minors in pre ference to mother.‑[Custody of minors].
Mst. Feroze Begum v. Lt.‑Col. Muhammad Hussain 1978 S C M R 299 ref.
Syed Faqir Hussain for Appellant.
M. Anwar Sipra for Respondent.
Dates of hearing : 19th February and 22nd March 1980.
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