Mst. NAZIR vs Hafiz GHULAM MUSTAFA ETC.S
This petition for special leave to appeal arose from proceedings under Section 25 of the Guardians and Wards Act 1890, wherein the Guardian Judge directed the petitioner mother to restore custody of her minor daughter to the respondent father, which decision was affirmed on appeal by the High Court. The core legal questions involved whether a mother who remarries a man outside the prohibited degree to her minor daughter retains custody, and the effect of a previous agreement surrendering custody. The Supreme Court dismissed the petition, refusing to grant leave to appeal. The Court held that awarding custody to a mother who has remarried a person not within the prohibited degree to the ward effectively places the minor under the charge of a stranger, which is contrary to her welfare. Additionally, the Court noted that the mother's voluntary agreement executed at the time of divorce to surrender custody after five years served the minor's welfare in the circumstances. Finding sound reasons and no legal error in the concurrent orders below, the Court declined to interfere.
- Whether a mother who remarries a person not within the prohibited degree to her minor daughter is entitled to retain custody of the minor?
- Whether a voluntary agreement entered into at the time of divorce surrendering minor custody can be given effect to determine the welfare of the minor?
- Whether the Supreme Court will grant leave to appeal against concurrent lower court findings on minor custody where no legal error is shown?
- Section 25, Guardians and Wards Act 1890
ORDER
KARAM ELAHEE CHAUHAN, J.-Hafiz Ghulam Mustafa respondent filed an application under section 25 of the Guardians and Wards Act VIII of 1890, for return of the custody of his minor daughter Mst.
Shamim Mai (now aged about 8 years). The application was accepted by tile learned Guardian Judge by his order dated 4-6-1979, who directed the petitioner, who is a divorcee of Ghulam Mustafa to return the custody of the child to him.
2. The petitioner filed an appeal being F.
10. No. 203/79 but without any success as the same was dismissed by the High Court on 10-12-1979.
3. The petitioner has now come up in petition for special leave to appeal against the same to this Court.
4. It is conceded before us that after the divorce, the petitioner ha married another husband and is living with him. It is also conceded that from the new wedlock the petitioner has a son. In these circumstances it is obvious that the custody of minor daughter of the petitioner from her previous wedlock with Hafiz Ghulam Mustafa cannot bf given to her because in the very context hereinbefore mentioned, it will amount to placing the minor in the custody of a new husband of the petition; who does not fall within a prohibited degree to the ward. Another thing to be taken note of is that Mst. Nazir, petitioner at the time of taking divorce from the previous husband voluntarily agreed to surrender the custody of Mst. Shamim Mai to him after five years. This agreement in the overall context explained above, in our opinion, is in the welfare of the minor and the circumstances of this case, we do not find any justification to ignore it. The orders of the Courts below contain sound reasons in their support, and as the learned counsel has not been able to point out any factual or legal errors therein, or violation of any principle of law, in our opinion it is not a fit case for grant of leave to appeal.
5. The result is that this petition has no merits and is dismissed.
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