JUDGMENT
S.B. Sakrikar, J.
1. The appellant has filed this appeal under Section 47 of the Guardian and Wards Act, 1890 against the order dated 5.4.1989 passed by the Civil Judge, Class-I, Mandleshwar in Misc. Civil Case No. 15/87 whereby the learned Civil Judge had allowed the application of the respondent, Mohd. Khan which was filed under Section 25 of the Guardian and Wards Act, 1890.
2. The undisputed facts of the case are that the parties are Mohammedans and governed by the provisions of Mohammedans Law. The appellant and the respondent are husband and wife. The appellant, Jugan Bai had two daughters and two sons out of the marital relations of the respondent, Mohd. Khan. Somewhere in the year 1981 the appellant and the respondent started living separately and ultimately respondent-Mohd. Khan divorced his wife Jagan Bai. After fl”e divorce all the four children continued to remain in the custody of the appellant-Jugan Bai.
3. On 17.2.1987 the respondent Mohd. Khan filed an application before the Civil Judge, Class-I, Mandleshwar, under Section 25 of the Guardian and Wards Act, 1890 praying for the delivery of the custody of all the four children in his guardianship. The said application was resisted by the non-applicant/appellant. On the basis of the evidence the learned Judge, partly allowed the application of the respondent and ordered for the custody of the eldest daughter namely Jinnat Bi and two sons namely Parvesh and Rafiq to be given in the custody of the respondent. Being aggrieved by the said order of delivery of the custody of the minor children, the present appellant, Jgan Bai has filed this appeal under Section 47 of the Guardian and Wards Act, 1890.
4. It is not in dispute that at the time of filing of the application the age of the eldest daughter Jinnat was about 17 years, the age of Parvesh was about 10 years and that of Rafiq was about 7 years. At the time of the argument both the learned Counsels appearing for the parties have conceded that at present the eldest daughter Jinnat and son Parvesh have become major and therefore, so far as the order of the Trial Court is concerned, the same has become ineffective with regard to the delivery of custody of daughter-Jinnat and Parvesh and the appeal in this respect becomes infructuous. But looking to the age of the minor son Rafiq, at the time of filing of the application which was at that time about 7 years, has not attained the age of majority at present. Both the Counsels agreed that at present the minor son Rafiq must have attained the age of about 15 years and looking to his age he is in a position to give his consent with regard to his custody. So the Counsels agreed on the point that the case may be remanded back to the Trial Court with a direction that the Trial Court should take the consent of the minor son Rafiq, with regard to delivery of his custody to his father i.e. Respondent-Mohd. Khan and then decide the matter afresh only with regard to the custody of minor son Rafiq in favour of the respondent-Mohd. Khan.
5. The learned Counsel for the respondent in the circumstances of the case, does not oppose the application filed on behalf of the appellant i.e. I. A. No. 1574/ 93; under the provisions of Order 41 Rule 27 of the Code of Civil Procedure. The learned Counsel for the respondent contended that the two documents which were filed alongwith the application, are the certified copies of the order passed by Civil Judge, Class-I, Mandleshwar and therefore, the documents are beyond suspicion and they can be taken on record.
6. In the aforesaid circumstances, the application filed on behalf of the appellant i.e. I. A. No. 1574/93 is allowed and the certified copies of the order filed alongwith the application are included in the record of the Trial Court by way of additional evidence under the provisions of Order 41, Rule 27 of the Code of Civil Procedure.
7. As a result of the fore-going discussion the appeal is partly allowed and the case is remanded back to the Trial Court with a direction that the Trial Court should take the consent of only minor son Rafiq who is now aged about 15 years on the point of delivery of his custody to his father, the respondent i.e. Mohd. Khan and after doing so, pass a fresh order with regard to his custody according to the law.
8. The parties are directed to appear before the Trial Court for further proceedings on 19.10.1995.
9. There shall be no order as to cost of the appeal.