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Civil Miscellaneous Appeal No. 48 of 1961, decided on 16th May 1963.

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.

Syed Mazhar Ali for Appellant.

I. A. Qazi for Respondent.

Date of hearing :16th May 1963.

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.

2. Mr. I. A. Kazi, the learned counsel appearing for the respondent, submits that the condition 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 children of the appli cant since 1951. I, therefore, direct the applicant to pay Rs. 500 to the opponent towards the maintenance allowance of both the minors before 29‑4‑1561, and the opponent is directed to hand over the custody of the boy to the applicant on receipt of this amount. 1f the applicant fails to pay Rs. 500 to the opponent by 29‑4‑1961, his application for the custody of the minor boy will stand dismissed."

3. It will be seen from the above extract that the condition regarding payment of Rs. 500 to the mother was not imposed by the learned Guardian Judge with a view to ensuring future maintenance of the minor son, but only to compensate the mother for the past expenses incurred by her on the mainten ance of the two children. The question is whether the imposi tion of such a condition is permitted by section 25 of the Guar dians and Wards Act.

4. Subsection (1) of section 25, which is relevant in the present context, lays down that

"If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of the guardian, may make an order for his return . . . . ."

It is clear from the language used in this provision of law that the primary consideration in ordering the return of the ward to the custody of the guardian is the welfare of the ward, and not the welfare of the person in whose custody the ward may be for the time being or of the person who may be demanding its custody. In the present case, as already observed, the payment of a sum of Rs. 500 to the respondent for the expenses incurred by her in the past on the maintenance of the two minor children, cannot be said to be conducive to the future welfare of the minor boy whose custody is being conditionally restored to the appel lant. There is perhaps a case for the reimbursement of the expenses incurred by the mother for maintaining the two children, but section 25 of the Guardians and Wards Act does not make any provision in this behalf. The mother may have another remedy for the recovery of these expenses. The result, therefore, is that I am of the view that the condition in question could not be imposed under section 25 of the Guardians and Wards Act.

5. In the result, the appeal is accepted and the order of the learned Guardian Judge is modified to the effect that the custody of the minor boy Kalu alias Umar Din shall be restored to the appellant without the payment of any money to the respondent. The custody shall be restored within seven days from the date of this order.

6. In view of the relationship of the parties, there will be no order as to costs.

K.B. A.

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