GHULAM HUSSAIN vs Mst. BAKHAN
Ghulam Hussain sought leave to appeal against the dismissal of his civil revision by the High Court, which had upheld the dismissal of his application for the custody of his minor daughter under the Guardians and Wards Act, 1890. The petitioner had alleged that his divorced wife, Mst. Bakhan, was of bad character and suffered from Tuberculosis, but failed to produce any medical evidence to substantiate the illness claim. The Supreme Court observed that the petitioner failed to demonstrate that the welfare of the minor did not lie with her mother. Furthermore, the petitioner had remarried whereas the respondent mother had not, which further favored the respondent. Holding that the welfare of the minor was paramount and best served with the mother, the Supreme Court dismissed the petition for lack of merit, affirming the concurrent findings of the lower courts.
- Whether the custody of a minor child of tender years should remain with the mother when the welfare of the minor is best served thereby?
- Does the remarriage of the father weighed against his claim for custody compared to an unmarried mother?
- Is an allegation of illness without medical evidence sufficient to displace the mother's right to custody?
- Section 25, Guardians and Wards Act 1890
ORDER
ASLAM RIAZ HUSSAIN, J.--Ghulam Hussain petitioner seeks leave to appeal against the judgment of the High Court, dated 27-1-1982, dismissing his civil revision in a guardianship matter.
2. The petitioner was married to Mst. Bakhan respondent. A daughter (Mst. Zainab) was born out of their wedlock. Thereafter, differences arose between the parties which led to divorce. Mst. Zainab was only 3 years old at that the. The petitioner filed an application for her custody under section 25 of the Guardians and Wards Act, 1890, in which he made wild allegations against her ex-wife, including her being a woman of bad character. The application was, however, dismissed. The petitioner then approached the High Court. His civil revision was dismissed.
3. The main ground pressed before the High Court was that the respondent (mother of Mst. Zainab) had been suffering from Tuberculosis. No medical evidence was produced to establish this allegation. As stated earlier the civil revision was dismissed by the High Court.
4. We have heard the learned counsel for the petitioner and gone through the impugned judgment.
He has not been able to show that welfare of the minor does not lie with her mother. On being questioned he also informed us that while the petitioner (Ghulam Hussain father of the minor) has remarried, the mother of the minor, Mst. Bakhan, respondent has not remarried so far. This fact also goes in favour of the respondent and we feel that the Courts below have rightly held that the welfare of the minor lies in her mother.
The petition is, therefore, dismissed as having no merit.