The Hon’ble Supreme Court in Shri Rajinder Kumar Mishra Vs Shrimati Richa AIR 2005 All 379, held that “It is well settled that welfare of the minor child is of paramount consideration while deciding the dispute about the custody. If the custody of the father cannot promote the welfare of the minor child equally or better than the custody of the mother then he should not be allowed to the custody as the same may adversely affect the welfare of the child.
The Guardians and Wards Act, 1890, relates to appointment and declaration of guardians; duties, rights and liabilities of guardians and all laws relating to the Guardian and Ward.
Age of majority under Section 3 of the Indian Majority Act, 1875 stipulates “that every person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before”.
Therefore until one has attained the age of 18 years , one will be considered a minor. The Hon’ble High Court of Delhi while dealing with a habeas corpus petition in Mohammad Nihal Vs State ( decided on 8th July, 2008) has taken the aid of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 which states that, regarding matters pertaining to succession, inheritance, marriage, divorce, guardianship, etc, where the parties are Muslims, the Muslim Personal Law (Shariat) shall be applicable.
The Hon’ble Court has futhuur held that, “if some doubt prevails pertaining to the applicability of Shariat laws in guardianship matters, it stands clarified by virtue of Section 6 of the G&W Act. When a court is called upon to determine the welfare of a minor so far as appointment of a guardian is concerned, this exercise will have to be determined in consonance with Shariat Law”.
The Hon’ble Court even furthur held that in consonance with section 2 of the Majority Act which states that its provisions do not impact on matters of marriage, dower, divorce and adoption, the Indian Majority act cannot be looked into while ascertaining the age of a minor and the personal law of the parties would be the driving factor.
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