Straight, Offg. C.J.
1. This is an appeal from an order passed by the Judge of Jaunpur, on the 20th February last, rejecting an application made by the present appellant under Section 1 of Act IX of 1861. The parties are respectively husband and wife, and the minors, in regard to whom the application was made, are Yusaf Ali and Basit Ali, respectively aged 12 and 9 years, they being the sons of the appellant and respondent. At present they are in the possession of the respondent, and the application was to have them taken out of such custody and handed over to the appellant, their father. The Judge refused the application, and hence this appeal. It has been urged as an objection to our hearing the appeal that it has been preferred as an appeal from an order, whereas, in view of Section 5 of Act IX of 1861, the appeal should have been as from a decree, and it should have been made under the rules applicable to a regular appeal. Looking to the peculiar nature of the proceedings, it seems to me that this is a highly technical objection, and as all the evidence of the case is upon the record and is all taken down in English, it is clear that we should be only delaying the hearing of the appeal upon very inadequate grounds were we to accede to the learned Munshi's contention. We have therefore heard the case, and have no doubt whatever that upon the materials disclosed in the record, the learned Judge was wrong in rejecting the application made to him by the appellant. The Muhammadan law takes a more liberal view of the mother's rights with regard to the custody of her children than does the English law, under which, if my memory serves me rightly, the lather's title to the custody of his children subsists from the moment of their birth; whilst, under the Muhammadan law, a mother's title to the custody of her children remains until they attain the age of 7 years. I may observe in passing that this principle of Muhammadan law was enunciated by my brother Mahmood, J, very recently in the determination of First Appeal No. 129 of 1885 (see next case). Prima facie, therefore, the appellant, who is the father of the two boys, was by law entitled to have them in his custody, subject always to the principle which must govern a case of this kind, that there was no reason to apprehend that by being in such custody they would run the risk of bodily injury. I do not say that this exhausts the considerations that might arise that would warrant the Courts in refusing an application for the custody of minors; but it is enough to say, in regard to the present case, that there is nothing in the record which discloses any proper grounds to justify the Court below in refusing to grant the application which the appellant made. Under these circumstances, the appeal is decreed with costs, the rejection of the application of the appellant is set aside, and his application is granted; and it is ordered, that the respondent do, within one month from the date on which this order readies the Court below, deliver up the two boys, Yusaf Ali and Basit Ali, into the custody of their father, the appellant; and it is further ordered that, in the event of respondent failing so to do, coercive measures to enforce tin's order, as provided in Section 260 of the Civil Procedure Code, may be adopted.
2. I concur.