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Legal Provisions Based On Given Case

The document discusses legal provisions around child custody and guardianship under Mohammedan Law, the Guardians and Wards Act of 1890, and relevant case laws. Mohammedan Law entitles the mother to custody of children under certain ages. The Guardians and Wards Act states courts should consider factors like the child's welfare, age, sex, religion, proposed guardian's character, and the child's wishes. Key case laws emphasized the paramount importance of the child's welfare in custody decisions.

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42 views1 page

Legal Provisions Based On Given Case

The document discusses legal provisions around child custody and guardianship under Mohammedan Law, the Guardians and Wards Act of 1890, and relevant case laws. Mohammedan Law entitles the mother to custody of children under certain ages. The Guardians and Wards Act states courts should consider factors like the child's welfare, age, sex, religion, proposed guardian's character, and the child's wishes. Key case laws emphasized the paramount importance of the child's welfare in custody decisions.

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advocatetiwarisandep
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Legal Provisions:

1. Mohammadan Law:
According to Section 352 of the Principles of Mohammedan Law by Mulla, the mother
is entitled to the custody of her male child until he reaches seven years of age and her
female child until she attains puberty. This right continues even after the mother is
divorced by the father, unless she remarries. If she remarries, custody then belongs to
the father.
2. Guardians and Wards Act, 1890:
Section 17 of the Act states that in appointing or declaring the guardian of a minor,
the court should be guided by what appears to be for the welfare of the minor,
consistent with the law applicable to the minor. Factors considered include the minor's
age, sex, religion, character and capacity of the proposed guardian, nearness of kin to
the minor, any wishes expressed by a deceased parent, and the minor's own wishes if
old enough to express an intelligent preference.
Case Laws:
1. Mir Mohammed Bahauddin v. Mujee Bunnisa Begum Sahiba (CDJ 1951
MHC 072):
In this case, the court emphasized that the welfare of the child is of utmost importance
in deciding custody and guardianship matters. The judgment indicated that even if the
mother is entitled to custody under Muslim law, the court may still award custody to
the father if it's deemed in the best interest of the child, considering factors such as the
child's attachment to the father and the availability of caregiving within the father's
family.
2. Nil Ratan Kundu v. Abhijit Kundu (CDJ 2008 SC 1566):
The Supreme Court emphasized that the welfare of the child is the paramount
consideration in determining custody matters. It highlighted that while the father may
be presumed better suited to care for the child due to financial resources or societal
roles, the court must weigh all relevant factors and exercise judicial discretion
judiciously to promote the child's welfare.
3. Prabhati Mitra v. D.K. Mitra (25 (1984) DLT 186):
This judgment underscores the importance of considering the child's wishes, if old
enough to express them, in custody matters. It emphasizes that the court should factor
in the child's preferences along with the child's welfare to make decisions in the child's
best interest.
4. S.Rehan Fatima v. Syed Badinudin Pariviz (AIR 1984 ANDHRA PRADESH 1): In
this case, the Andhra Pradesh High Court upheld the provision of Muslim Law stating that
the mother is entitled to custody until the minor female child attains puberty.
5. Gaurav Nagpal v. Sumedha Nagpal ((2009) 1 SCC 42): In this case, the Supreme Court
reiterated the importance of considering the welfare of the child above all else when
determining custody and guardianship.

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