Case Law (Matters to be considered by court in appointing guardian---Right of mother to custody of minor daughter--)

 Case Law: 2020 C L C 2099

(a) Guardians and Wards Act (VIII of 1890)---

----Ss. 25 & 17---Custody of minor---Matters to be considered by court in appointing guardian---Right of mother to custody of minor daughter---Mother, when disqualified for custody---Marriage of mother with a person not related to the child within the prohibited degree---Scope---Mother of minor assailed order passed by Appellate Court whereby judgment passed by Guardian Judge was set aside and the custody of minor was handed over to the father of minor---Contention of father was that the mother of minor had contracted second marriage and her husband was in the prohibited degree with the minor---Contention of mother was that the father of minor had contracted second marriage; that he had two daughters from said marriage and that she had no other child from her second marriage---Validity---Minor, since birth, had developed bonding with her mother; separating her from real mother and forcing her to live with step-mother (who had her own two daughters) in the house of her father would not only be harsh, unjust and traumatizing for her personality but would also disturb her mentally---Minor wanted to live with her mother and there was no reason not to respect her wish---Father of minor himself had admitted that he had no business or job---Mother of minor had married to a person who did not fall in the prohibited degree to the ward, therefore, High Court held that once the minor attained the age of puberty, her father could approach the court for her custody---Writ petition was allowed, order passed by Appellate Court was set aside, that of Guardian Judge was restored and father was allowed to have frequent meetings with the minor.

(b) Guardians and Wards Act (VIII of 1890)---

----S.25---Custody of minor---Right of mother to custody of minor daughter---Mother, when disqualified for custody---Marriage of mother with a person not related to the child within the prohibited degree---Exceptional circumstances---Welfare of minor---Scope---Mother, in circumstances, is entitled for the custody of her female child until she attains the age of puberty---Rule regarding prohibited degree is not an absolute rule and it may be departed from, if there are exceptional circumstances for the welfare of minor---Mere fact of re-marriage of mother does not ipso facto disentitle her from retaining custody of the minor daughter and entitle handing her over to the father, when it is not otherwise, in the welfare of minor.

(c) Guardians and Wards Act (VIII of 1890)---

----S.25---Custody of minor---Interlocutory in nature---Scope---Order relating to custody of child, by its very nature is not final but is interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interest of the child.