Custody – Fathers 2nd Marriage

Andhra High Court

Mohammed Jameel Ahmed Ansari vs Ishrath Sajeeda And Ors. on 5/10/1982

JUDGMENT : Raghuvir, J.

1. This appeal arises under the Guardians and Wards Act No. 8 of 1890 as to the custody of a child born on October 1, 1970. His name is Mohd. Aquil Ahmed Ansari alias suheel in 1982 he is studying in VIth Class in the city of Hyderbad in standard public school at Kilwat at Lad Bazar. The parents of the child were married on Jam, 8, 1970 and were divorced on December. 28, 1970. The wife married again on August. 30, 1974 to one jawood Ali and left for saudi Arabia on November. 29, 1976 she has three issues from the second marriage: the husband also re-married on December. 11, 1975 and has another son by the second wife.

2. The father of the child by application on June 12, 1973 sought the custody of his child, principally, on the ground that he is the legal guardian. In the application, he alleged his father, Mohd. Barket Ahmed ansari, mother Mukdoom Bee. His second wife, Aliya all are willing to take the custody of the child that among his three brothers Mohd. Khaleel ahmed Ansari , isiter, Zubaida Begum, the two in addition, are willing to look after the child. It is alleged, the mother left the child to her parents. Between the parties, an agreement on December. 28 1970 was referred wherein the parents inter alia, agreed, the mother will not claim ‘Maher’ claim maintenance for the child till ‘sharai’ period, known as ‘ Hizna’ which prescribes the age of seven years. The child it was agreed will be entrusted to the father before the expiry of ‘ sharai’ period if she so desired. In the petition, it is further alleged the mother was studying B.Sc in women’s college at Kothi (even after birth of child) and as student, from morning to the evening, moves about and cannot look after the child. He sent his friends, relatives. Neighbours and all his attempts failed.
Finally the father issued a lawyer’s notice on May 29, 1973 in which it was alleged the father was not allowed to see the child. The mother ‘not even accepted the clothes, fruits. Chocolates and biscuits brought for the minor but bluntly refused’. In reply notice on June 24, 1973, it was sstated, the child was 2 years and 8 months, therefore, cannot live without mother, cannot be looked after properly except by the mother. The mother resisted the petition in the Court she averred, for the first time, in June 1973 a paltry sum of Rs. 25 was sent; except that the child was neglected for three years by the father.
Even this amount was sent with the ulterior motive to substantiate the illegal claims over the minor. It was added the father is an L.D.C. in Unani Dispensary at Narayanguda, therefore not a person to be entrusted with the child.

3. Tha Additional chief Judge, city civil Court, Hyderabad dismissed the
application July 26, 1978 holding merely because the petitioner happens to be
the father he must not necessarily be given custody of the minor. On appeal, a
learned single Judge of this Court considered the circumstances; interviewed the
child in chambers and found the child was willing to stay with maternal grand-
parents. It was found, from the birth of the child, till the date of Judgment
(January. 25, 1982), for eleven years, the child grew up at grand-parents’
house. That the father never took interest in the child for eleven years. That
from saudi Arabia. The mother is sending money for the upkeep of the boy, that
the mother’s father is a retired Tahsildar; owns buildings in Hyderabad and
lands. His two other sons are in saudi Arabia and they are sending monies to him
for maintenance therefore the maternal grandfather was in a position to take
good care of the child. The learned single Judge observed, the father did not
take any interest in the minor. The father has married again and has also a
child. It is true that his present wife also averred in the Court that she would
take care of the minor. But that was before the child was born. There is no
knowing as to how she would treat the minor when he is sent to the petitioner-
appellant’s house and it would psychologically affect him if he is asked to go
and stay with the petitioner-appellant. That would completely transplant him
from the present surroundings and it may tell upon his mental health. The order
of the single Judge is assiled in the Letters patent appeal.

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4. The learned counsel for the appellant argued that the father is the legal
guardian and is not held ‘unfit’ so long, it is not so held, the father is fit
person; the father should have the custody of the child. The personal law of
Muslims in s. 352 of the principles of Mohammadan law, 16th Edition, was
referred. We see from the order under appeal. The learned single Judge did not
advert to the evidence, therefore, we think it proper to consider the evidence.

5. The father Moh. Jameel Ahmed Ansari deposed to have demanded the custody
of the child on several occasions. He visited the house of his father-in-law to
see the child, but was not allowed to see. When his father wanted to see the
child, he was not allowed to enter the house. Though his father and his mother-
in-law are brother and sister. His father reported to have been refused to see
the child and asked him to take legal steps. Thereafter, the witnesses, sent his
elder sister, brother-in-law to inquire the welfare of the child. They were
similarly treated; not allowed to see the child. Thereafter he sent his friend.
Mr. Kishen a lecturer in Hindi arts college. It is the evidence of the lecturer
that he knows the father ever since 1964. He attended his marriage. In 1973. At
the request of the father visited the house of the wife’s parents along with
another friend Mohd. Osman to see the child. His request was refused. He was
asked to convey, for all intents, the father to forget the child. Thereafter,
the father sent vizarath Ali pasha, a neighbour and a friend to the maternal
grand-parents of the child to settle the matter. Pasha informed the witness,
grand-parents have informed he may forget him the child. The witness deposed,
prior to May 29, 1973 he sent Rs. 30 for the use of child through one Asraf
jahangir and in the year 1971 through his father and elder brother but the money
was refused. He states his second wife is an employee. She is working in the
ECIL. When the child was ill in 1972. That fact the father was not made aware of
a lawyer’s notice on May 29, 1973 was sent. On date of evidence the witness was
working in Nizam’s general Hospital as a Lower Division Clerk Hospital as a
Lower Division Clerk on Rs. 500 per month. Now he is a practising advocate in
the city courts. It was suggested to the father, the child will be entrusted to
his sister, Zubaida Begum by him who is issueless. The suggestion was denied.

6. Aliya, the second wife of the father, deposed on November. 9, 1977, “I
have no issue till now. If the minor is brought I am prepared to look after him
as my own child”. It is her evidence, she was informed of the conditions of the
“khula’ agreement she agreed to take the custody of the child even before her
marriage was settled.

7. The child’s paternal grand-father, Haji Mohd. Barkath Ahmed Ansari deposed
that his daughter-in-law has divorced her husband she is in saudi Arabia and got
three children from the second husband. One among the three died and two are
living with them. The paternal grand-parents of the child are willing to look
after the minor child. They complain, the child is kept away from them. Haji
Mohd. Barkath Ahmed Ansari stated from January. 1975 he has been residing in
Hyderabad permanently.

8. Syed Shabir Ali the father of Jaweer ali, deposed his son is now married
to the mother of the child. It is his evidence, the mother did not bring the
child to his house and added, there is no possibility of his son returning to
India at present as he is employed there.

9. The child’s maternal grand-father, Mohd. Khairath Ahmed Ansari Deposed,
till the date of his evidence the mother of the child remitted Rs. 1,700 for the
maintenance of the minor that he himself has got an income of Rs, 1,500 per
month and is looking after the child dutifully. He denied that Kishen Zaheer
Ahmed Osman and some other friends of the father requested him to show the minor
at any time and he has refused. Biliquis Fatima, the maternal grandmother
deposed the intention of her son-in-law is not to give the child to Zaheda Begum
his elder sister, who has no issues. That her daughter is not working at Jeddah.
Shakeela Begum, Abdul Rahman and Wajira Begum, Abdul Rahman and Wajira Begum
were examined, but their evidence is not of much relevance.

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10. The evidence shows, ever since the birth, the child was in the custody of
mother. She is her turn, entrusted the custody to her parents or perhaps, after
she was married or when she left for saudi arabia in 1976.

11. In the face of the evidence the question is what is the approach of the
Court? This aspect was considered by this Court in the decisions collected is L.
Chandran v. Mrs. Venkatalakshmi, . The old cases are collected in Reginald
Danieal v. Sarojam, where it is observed that only if the father is unfit to be
the guardian, can the question of the welfare of the child come into
consideration by the courts. It is observed “in the first class of cases, it
must be established that any Act or conduct of the husband or father renders him
unfit for guardianship: the fact that the child may be happier and more
comfortable with other relations is not sufficient to deprive the two relations
referred to of their right and duty. The same sanctity does not attach to the
rights claimed by the other relations”. In Atchayya v. Kosaraju narahari, AIR
1929 Mad 81 on the same aspect, it is observed:

“when the guardian of the person of a ward applied for the custody of the
ward he is only seeking the Court to help him to discharge the duty cast on him
by law, with reference to his ward and it is for those who oppose such an
application to make out that the welfare of the ward will be better served by
its being kept out of the custody of its guardian and retained in the custody of
its guardian and retained in the custody of the person against whom the
application is made, the father has therefore a paramount right ot the custody
of his children of which he cannot be deprived unless it is clearly shown that
he is unfit to be their guardian”.

The cases of the Court in M. Basavalingam v. Swarajayalakshmi, AIR 1957 Andh
Pra 704; Narasima Rao v. Manikyamma, (168) 1 Andh :LT 132: V.V.N. Narasaiah v.
Ch. Peddi Raju were referred in case

and it is held:

“…………….. we do not therefore consider that it would be in the
interests of the minor child to be handed over from the care and custody of the
active and loving maternal grand-mother to the passive and silent paternal
parents. We have seen the child in this Court. It looks not only very healthy
but also very happy with its maternal grand-mother. The maternal grand-mother
appears to us to be rearing up the child for all these months with great love
and affection”.

It is in this regard the case in Dr. Mrs. Veena Kapoor v. Varinder Kumar
Kappor, and the observations made therein and in regard to a parsi family in the
case of Thirty Hoshie Dolikuka v. Hosmiam Shavaksha Dolikuka, were cited.

12. The observations in case were heavily relied on by the learned counsel
for the maternal grand-parents to contend that if father has the right the Court
can ignore the rights of the father and hold the interests of the minor are
better served, if the child is allowed to remain in the custody of the maternal
grand-parents.

13. We have understood the law on this aspect to be in the following terms;
That children are normally expected in the custody of the legal guardians. Under
Muslim law, after the age of 7 years, it is the father who is entitled to the
custody of the child, unless the Court holds on evidence, the father is not a
fit person or that it is not conducive to the health whether physical or mental
of the child. Ordinarily, the children are to be with the father.

14. In the instant case, it is the father who is seeking the child. The child
is above seven years. The trial courr in the instant case. Has not recorded a
finding that the father is not a fit person or that it is not conductive for the
child to remain with the father. The learned singel Judge observed for eleven
years, the child was not taken care of cannot be sustained for the reason that
till the child attained seven years, the child was to remain with the mother
because she was the legal guardian. Even in the ‘Khula’ agreement it was
understood between the parties, if for some reason, within the sharai’ period
she was to deliver the child, the father was willing to take the child. When he
was married, he informed his second wife that it was her duty to maintain the
child. The second wife agreed. She was willing. She swore to that fact in the
bos. The father made attempts sent his friends, his brother-in-law, his sister
his father to see the child. All of them in the evidence state they were not
received; they were not allowed inside the house to see the child. The
contention that he has not maintained the child properly or that has not cared
to maintain the child is unsustainable for it was agreed, till the child attains
seven years of age, the mother will not claim any maintenance. In 1973 the
father sent money; that was refused. His friends informed him that the grand-
parents communicated them, he may treat for intents, the son does not exist for
him. There is no credible evidence to hold, if the child is entrusted to his
custody, he is likely to hand over the child to his elder sister. The grand-
parents from the paternal side, both are anxious to have the child. In the face
of this evidence when the father is not stated as not a fit person. What is the
course to be adopted? The learned singlo Judge had not adverted to evidence; did
not hold the father is not a fit person. We have considered the evidence to see
whether anything was suggested to show the father was not a fit person. It is
seen, he is a practising Advocate. His parents are living with him at hyderabad
since 1975 and they are willing to have the custody of the child, whether in the
counter or in reply notice on May 29, 1973 or on June 24, 1973 nothing is stated
as to the fact that the father is not a fit person. In the face of such a
record, we are unable to hold, the welfare of the child is not served better if
the child is entrusted to the father. The courts will have to give proper regard
to the circumstances that he is willing to take the child. He has examined his
second wife: he has examined his parents who are willing to take the child.
There is thus nothing to hold the father is not a fit person or it is not
conducive to the safety and health of the child to entrust the child.

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15. In the decision in Audiappa v. Nalledran. AIR 1916 Mad 605, the following “The fact that the father has married a second wife is not a sufficient ground for holding that he is unfit to be the guardian of his children. The learned vakil for the appellant relies on Bindo v. Shamlal, (1907) ILR 29 All 210 which seems to lay down that if the father marries again, he ought to be deprived of his legal right of guardianship. The learned Judges refer only to S.17 and say that the welfare of the girls is the primary consideration. There is no doubt that that would be the consideration which would influence the Court ultimately: at the same time, it ought not to be forgotten that the legislature advisedly draws a distinction between the legal rights of husband and parents on hte one side and those of her near relations on the other. In the first class of cases, it must be established that any Act or conduct of the husband or father renders him unfit for guardianship the fact that the child may be happier and more comfortable with other relations is not sufficient to deprive the two relations referred to of their right and duty the same sanctity does not attach tot he rights claimed by the other relations…..”

16. We are of the view that on the evidence since nothing is brought out against the father to show he is unfit we hold, he is entitled to the custody of the child. We allow the appeal direct the child be delivered to the father. The appeal is allowed No costs.

17. The learned counsel for the respondents orally sought leave to the Supreme Court. The question raised in the appeal is a question of fact. No substantial question of law arises in the appeal which requires to be considered by the Supreme Court of India leave. Therefore, is refused.

18. Appeal allowed.

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