K.K. Desai J.
1. This is an application of one Nurjehan, the mother of the minor mentioned in the petition, for delivery of the custody of the minor to her.
2. It appears that prior to the petitioner Nurjehan's marriage with the respondent he was married to another lady who was at the time of Nurjehan's marriage absent from the house of the respondent. Nurjehan discovered the existence of the first marriage of the respondent subsequent to her marriage with the respondent. The parties appear to have lived together for some time and it is alleged in para. 5 of the petition that on July 31, 1957, the respondent drove the petitioner out of the house though she was pregnant at that time after snatching away the minor child from the petitioner's hands.
3. The minor is 3 years old. Prima facie it must be for the welfare and in the interest of any minor that it should be with the natural mother during tender age and I have therefore requested Mr. Chitre who appears for the respondent to tell me how it is for the welfare and in the interest of the minor that the child should not be delivered over to the petitioner. Mr. Chitre made only the following points:
1. Nurjehan has no means of maintenance.
2. Nurjehan is staying with her two brothers Dadamiya and Abdul Hamid in a small hut and there are altogether five persons residing in the hut.
3. It is alleged in the affidavit in reply that Nurjehan left shelter of the respondent on her own accord leaving the child behind and she was moving with others.
As regards the question of income of the respondent, Mr, Chitre pointed out that he is earning Es, 145 per month and some times extra for extra work. As against that Mr. Dharmaraj has pointed out that Dadamiya is earning about Ks. 5 per day and Abdul Hamid is earning about Rs. 100 per month. Both of them are willing to give an undertaking to the Court that they will during the child's residence with Nurjehan make provisions for the maintenance of the child in the usual way.
4. As regards this contention made by Mr. Chitre, it appears to me that both the sides appearing before me are poor and there is no question of a very rich existence for the child with either of the parties. Since the mother wants the child to be with her1 and since both her brothers are willing to give an undertaking as mentioned above, I do not see how the child being left with the father is to be more benefited than its being with the mother.
5. As regards the allegations against Nurjehan, they seem to be frivolous and I am informed even by Mr. Chitre that it would certainly be very difficult to prove any such allegations. Mr. Dharamaraj has rightly pointed out that if left with the respondent the minor will receive the usual treatment from its stepmother.
6. In my view it is for the benefit and welfare of the child that the child must remain with the mother and I should make an order as asked for in the petition.
7. Mr. Chitre has, however, argued that the petition is made under Section 25 of the Guardians and Wards Act and that a Muslim woman is only entitled to custody and is not a natural guardian within the meaning of the Act and the petition is, therefore, misconceived. Since it is in the interest and for the welfare of the child that the custody of the child must be given to the mother I will treat this application as an application under the general and inherent jurisdiction of this Court in matters relating to minors. (Under Section 3 of the Act that jurisdiction has continued to vest in the Court.) It cannot be that the Court is powerless where an. order is necessary for the welfare and in the interest of a minor and the application is of the kind as in this petition. I am of the view that if the Court has no jurisdiction to make this order under Section 25 of the Act, the Court should exercise its general and inherent jurisdiction for the purpose and make the order as prayed for.
8. There will, therefore, be an order in terms of the prayer in the petition. The respondent will pay costs of the petitioner fixed at Rs. 100. This order is made on the basis of the undertaking given to the Court by Dadamiya and Abdul. Hamid being the brothers of the petitioner that they undertake to provide for the maintenance of the minor Mahomed Rafiq during his stay with Nurjehan the petitioner. There will be liberty to apply if it becomes necessary to change the custody of the minor for any other circumstances.
9. Solicitors for the respondent: Vasant & Co.