Ms. Usha Dhanajayan vs Fairoza Qamruddin Popere on 15 November, 2017

FA1118_2014.doc

Vidya Amin

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 1118 OF 2014
WITH
CIVIL APPLICATION NO. 573 OF 2015 IN F.A. NO. 1118 OF 2014
WITH
CIVIL APPLICATION NO. 1976 OF 2015 IN F.A. NO. 1118 OF 2014

Mrs. Firoza Popere … Appellant
Vs.
Mrs. Usha Dhananjayan … Respondents

WITH
CIVIL APPLICATION NO. 2851 OF 2015 IN F.A. NO. 1118 OF 2014
WITH
CIVIL APPLICATION NO. 3730 OF 2015 IN F.A. NO. 1118 OF 2014

Mrs. Usha Dhananjayan … Applicant
Vs.
Mrs. Firoza Popere … Respondent
……

Mr. Rajiv B. Chavan, Senior Advocate a/w. Ms. Priyanka B. Chavan
i/b. Ms. Asha Mittal for the appellant.
Ms. Flavia Agnes a/w. Mr. Prasad Shenoy, Advocate for the
respondent.
……

CORAM : MRS.MRIDULA BHATKAR, J.
RESERVED ON : OCTOBER 04, 2017
PRONOUNCED ON : NOVEMBER 15, 2017

JUDGMENT:

. The paternal and the maternal grandmother both have

conflicting claim to be appointed as guardian of a minor girl Zeenat.

1 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

2. This First Appeal is directed against the order dated 5 th May,

2014 passed by the District Judge, Mangaon, District Raigad, below

Exhibit 1 of Civil Miscellaneous Application No. 7 of 2014 preferred

by the maternal grandmother/present respondent under Guardians

and Wards Act, 1890 for her appointment as guardian of minor girl

Zeenat. The facts of the case are summarized as follows:

On 11th May, 2008 Nimmy and Aatif got married. It was a love

marriage. Aatif is muslim and Nimmy was hindu. On 8 th August,

2008 Nimmy was converted to Islam and was renamed as Bushra.

On 2nd March, 2009 Zeenat was born. On 11th March, 2013 Aatif

strangulated Nimmy (Bushra) and committed murder of his wife in

Dubai. At the relevant time, the child was kept with her paternal

mother temporarily, as the deceased mother was to return from

Dubai in April to take the child with her. Bushra was cremated at

Nandvi (Raigad) as per muslim rites. On 20 th March, 2013 the

maternal grandmother/respondent took Zeenat to Kerala. On 29 th

April, 2013 the appellant/paternal grandmother took custody of

Zeenat to perform the last rites of Bushra and thereafter she was

never returned to the respondent. The maternal grandmother asked

for custody of the child. However, it was refused by the appellant. A

criminal case was filed with Mangaon police station in June, 2013.

The respondent/maternal grandmother filed Habeas Corpus Writ

2 of 37

::: Uploaded on – 15/11/201716/11/2017 01:59:57 :::
FA1118_2014.doc

Petition in this Court for production of the child, which was

dismissed, as alternate remedy was available for seeking custody of

the child. Thereafter the respondent filed Miscellaneous Application

No. 7 of 2014 for custody and guardianship of the minor girl at

Mangaon, District Raigad where Zeenat was residing with the

appellant/paternal grandmother. On 19th February, 2014, Aatif was

convicted and given a death penalty. At present he is in Dubai. The

Application under the Guardian and Wards Act, 1890 was contested

by the appellant by filing reply. Both the grandmothers claim that

they are financially well to take care of the child. Both claim that

they can provide better education and environment for the

development of the child. The appellant claims that the child being

muslim, she should stay in a Muslim family so that she can profess

her religion in a proper manner. The trial Court, after considering

both the sides, passed the order and appointed the

respondent/maternal grandmother as guardian of the minor child. It

was directed that the child is to be handed over to the maternal

grandmother on or before 21st May, 2014. Hence, this First Appeal.

3. The Appeal is admitted on 15th September, 2014 and directed

that the matter is to be heard expeditiously. The order of the District

Court was stayed. However, access is given to the

3 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

respondent/maternal grandmother for a week during Diwali vacation

of 2014 and 15 days in summer vacation of 2015. During Diwali

vacation from 19th October to 30th October, i.e., for 10 days Zeenat

stayed with her maternal grandmother and the child was returned to

her paternal grandmother on 30th October, 2014.

4. On 16th November, 2014 Zeenat was medically examined at

Raigad Hospital. (The report states that the injury is 7 days old). On

17th November, 2015 the child was again medically examined at J.J.

Hospital. (The report states that the illness of the child is 10 days

old). On 26th November, 2014 a criminal case of sexual assault

bearing C.R. No. 1682 of 2014 under POSCO was filed against the

maternal uncles Nigel Dhananjay by the appellant in Mangaon

Police Station, Raigad. On 17 th December, 2014, the case of sexual

assault was transferred to Thrissur, Kerala on the ground of

territorial jurisdiction for further investigation and was registered

under sections 4, 8. 12 of POSCO r/w. section 376(2)(f)(i)(l). The

history stated by the victim is that in the vacation, her nani, i.e.,

Usha Dhananjay took her to Kerala from 19 th October, 2014 to 20th

October, 2014. After returning from kerala, her dadi, i.e., Firoza

Popere noticed wounds around vulva. The child, on query, informed

that her nani tied her and gave injection. After giving injection, she

4 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

tied her eyes and then nani and one man named Raju abused her,

hit her on private parts. This had happened twice 20 days back. On

30th December, 2014 Zeenat was medically examined in

Government Hospital at Thrissur. At that time, consent was given by

Firoza. The history was given by the victim that from 19 th October,

2014 to 30th October, 2014 at Thanikkudam, by two persons pressed

the genital area at unknown time and date. Despite the order of this

Court dated 15th September, 2014 in Civil Application No. 3195 of

2014, on 4th May, 2015 the appellant/paternal grandmother refused

to handover the custody of Zeenat for three weeks during the

summer vacation. On 3rd July, 2015, the Circle Inspector of Police

at Peramangalam (Thrissur) filed the report that Case No. 1682 of

2014 under section 376(2) and POSCO Act is false. In November

2015, custody of the minor child for three days was given to the

respondent/maternal grandmother. In May, 2016 this court

dismissed the Civil Application No. 2851 and held that the custody

to be given to maternal grandmother during Diwali vacation;

thereafter the custody was given to maternal grandmother during

vacation. On 19th May, 2017 the child was again examined by the

panel of medical experts at the Trissur Medical College in Case No.

1682 of 2014.

5 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

5. On this background of subsequent events pending appeal, the

submissions and evidence is to be appreciated. The learned senior

counsel submitted that it is necessary to take into account the

background of the child where she has stayed and spent 8 years of

her life. The child is staying with appellant/paternal grandmother

since she was 4 years of age. At the time of leaving for Dubai on 9 th

September, 2012, Bushra had handed over the custody of her child

to the appellant/paternal grandmother and thereafter the child

remained in custody with the appellant/paternal grandmother. The

learned counsel submitted that the learned Judge has lost sight of

very important fact that the child is born muslim, as the mother

accepted Islam religion before her birth and this fact is very relevant

and material while deciding the issue of Guardianship of the child.

The learned counsel has relied on Sections 351, 352 and 353 of

Mahomedan Law and also Section 17 of the Guardians and Wards

Act, 1890. He argued that the factors which are to be considered

while fixing the guardianship of a minor under the Muslim Personal

Law and the factors which are to be taken into account by the Court

while appointing guardian specified under section 17 of the

Guardians and Wards Act are same and consistent. In both the

provisions, the age, sex and religion of the minor are material

factors in appointing the person as a guardian.

6 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

6. The learned senior counsel argued that Zeenat goes to

Madarsha in the morning to learn Arabic which is required to

understand Quran. She has to perform the religious rites as per the

Muslim Religion. She will be pardanashin lady at the age of 15. The

muslim customs are required to be taught and inculcated with the

child. He argued that the learned trial Judge did not frame issues

while deciding the Application but conducted the matter as a

summary procedure which is not expected and is illegal. He further

argued that the learned Judge did not interview the child. Thus, the

preference of the child was not ascertained by the Judge while

appointing the respondent as her guardian. The learned Judge has

unnecessarily given importance to the criminal background of the

son of the appellant, i.e., father of the minor child. Instead he

should have considered the status of the appellant, her financial

condition and the attachment and bond between the child and the

appellant. He submitted that the learned Judge ought to have

recorded the evidence before passing order. He pointed out that

under section 13, it was necessary for the learned judge to hear the

evidence before passing the order. He argued that the financial

condition of the appellant is excellent. Her husband Kamaruddin

Abdul Rehman Popere is working in Dubai and he is drawing

monthly salary of AED 5000. She owns an agricultural field at

7 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

village Mandvi. He submitted that the child is continuously speaking

Urdu and Hindi. The child is not conversant with Malayam, so if at

all the respondent/ grandmother shifts the child to Kerala from

Raigad, then the child will have psychological trauma and she will

not be comfortable at all. The learned counsel relied on the

progress card and other certificates received by the child. He

submitted that the progress of the child is excellent. The child is

participating in drawing, painting competition and has achieved

success and has many friends and relatives. Thus, the child is

growing well in the house of her paternal grandmother.

7. The learned senior counsel for the appellant relied on

following judgments:

(i) On the appointment of guardian, the judgment of

Jammu and Kashmir High Court in the case of Master

Aisha Anr. vs. Bashir Ahamad Haji1.

(ii) On the point of summary, he relied on the case of

Sayad Shahu vs. Hapija Begam2.

(iii) Gopalrao Anr. vs. Shrawan Anr.3.

(iv) Sunil Gulabrao Satav vs. Balu Karbhari Kutal Anr. 4

1 AIR 1987 (J K) 68
2 ILR Vol. XVII 560
3 1923 Nag. 36
4 2012(1) ALL MR 323

8 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

(v) Fiza Developers and Inter-Trade Pvt. Ltd. vs. AMCI

(India) Pvt. Ltd. Anr.5

(vi) For ascertaining the wishes of the child, the judgment

of the Hon’ble Supreme Court in the case of Kirtikumar

Maheshankar Joshi vs. Pradipkumar Karunashanker

Joshi6

(vii) Louella Fernandes vs Rajan Chawla7

(viii) Judgement of the Supreme Court in the case of R.V.

Shrinath Prasad vs. Nandamuri Jayakrishna Ors.8

8. Per contra, the learned counsel for the respondent submitted

that the learned Judge has passed a well reasoned order. The

evidence was tendered on affidavits. She submitted that the learned

Judge has discussed about the relevant provisions of the

Mahomedan Law, i.e., Sections 351, 352 and 353 and has held that

in default of mother, the custody of the female girl under section 353

is to be given to the mother of the mother. She further submitted

that long association does not create ties. Thus, the continuous

custody of the appellant/paternal grandmother is not a ground to

reject the appointment of respondent as guardian. She submitted

5 (2009) 17 SCC 796
6 (1992) 3 SCC 573
7 2013 (6) Mh. L.J. 469
8 (2001) 4 SCC 71

9 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

that the respondent is equally financially well off to look after the

child. The learned counsel submitted that weightage is to be given

to the subsequent development of tutoring which has occurred in

November, 2014. The case of sexual assault is false and bogus.

She submitted that the medical report of Thrissur Hospital of the

child discloses that the hymen was intact and her statement is

recorded under section 164 before the Magistrate on 31 st December,

2014. The case is treated as “B Summary”, i.e., false. The child is

to be handed over to the maternal grandmother. She submitted that

these are the pressure tactics used by the appellant so that the

respondent/grandmother signs the mercy petition of her son, i.e.,

father of the child.

9. In reply, the learned senior counsel Mr. Chavan has submitted

that Section 353 of the Mahomedan law is not applicable because

under section 353, both the grandmothers should be muslim. There

is no discussion on Mahomedan Law in the judgment. The learned

Judge was not sensitive in deciding the custody. He further pointed

out that the respondent/grandmother got married to one Christian

man, so the child will face problem in following her religion.

10 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

10. Before dealing with the submissions it is useful to reproduce

the relevant provisions of Mahomedan Law:

“Section 351. Matters to be considered by Court in
appointing guardian

(1) In appointing or declaring the guardian of a minor, the
Court, shall, subject to the provisions of this section, be guided
by what, consistently with the law to which the minor is subject,
appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the
court shall have regard to the age, sex, and religion of the
minor, the character and capacity of the proposed guardian and
his nearness of kin to the minor, the wishes, if any, of a
deceased parent, and any existing or previous relations of the
proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference,
the Court may consider that preference.

Section 352. Right of mother to custody of infant children

The mother is entitled to the custody of her male child until he
has completed the age of seven years and of her female child
until she has attained puberty. The right continues though she
is divorced by the father of the child unless she marries a
second husband in which case the custody belongs to the
father.”

Section 353. Right to female relations in default of mother

Failing the mother, the custody of a boy under the age of
seven years, and of a girl who has not attained puberty, belongs
to the following female relatives in the order given below –

(i) mother’s mother, how highsoever;
(ii) father’s mother, how highsoever;
(iii) full sister;
(iv) uterine sister;
(v) consanguine sister;
(vi) full sister’s daughter;
(vii) uterine sister’s daughter;

11 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

(viii) consanguine sister’s daughter;
(ix) maternal aunt, in like order as sisters; and
(x) paternal aunt, also in like order as sisters.

On the point whether the proceedings under the Guardians and
Wards Act are summary or not:

11. In the case of Sayad Shahu (supra), the Application for

certificate of Guardianship was made under the Guardians and

Wards Act, 1890. Her appointment was made under a will. In the

said matter, Hapija applied to be appointed as Guardian of minors.

However, opponent Sayad Shahu objected on the ground that he

has been appointed guardian of the minors and of their property

under a will made by deceased Gouskhan, the father of the minors.

The District Judge after recording some evidence, refused to take

further evidence on the ground that the proceedings were summary

and that it was open for the opponent to establish his position in a

regular suit and he accordingly granted certificate of guardianship of

the minor children in favour of Hapija. Sayad Shahu appealed. The

Judge held that when a guardian is appointed under the will, there is

special provision under section 5 which relates only to European

British subjects, (that is deleted after repeal of the Act of 1951).

However, the High Court Judge held that the District Judge has

committed error in holding that the proceedings are summary.

12 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

12. In the case of Gopalrao (supra), the opponent Shrawan was

appointed by the trial Court as guardian of the minor. Gopalrao and

Ajabrao, cousins of deceased husband of the minor, prayed that

they are also to be appointed as guardian. The Court held that

before appointing one Shravan, the trial Court should have made a

proper enquiry. In the said judgment, reliance was placed in the

case of Sayad Shahu vs. Hapija Begam that the proceedings

under the Guardian and Wards Act are not intended to be summary.

13. In the case of Sunil Gulabrao Satav (supra), after death of

the mother, the custody was with the grandfather, i.e., father of the

deceased mother. Thereafter, an application was made by the

father of the minor. The Single Judge of this Court held that it is the

duty of the Court to frame proper issues. So the matter was

remanded.

14. In the case of Fiza Developers and Inter-Trade Pvt. Ltd.

(supra) the proceedings were under the Arbitration and Conciliation

Act and the Hon’ble Supreme Court held that the object of framing

of issues is to focus upon questions on which evidence is required

to be led by the parties and also to give indication to the parties on

whom the burden of proof lies.

13 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

On preference of the child-

15. In the case of Master Aisha (supra), the child was 7 years old.

The High Court held that the trial Court should ascertain the wishes

of the minor as to with whom he wanted to live. The process of

growth and development is to be made the manner which gives him

education, physical, psychological and moral welfare and does not

allow him to go astray in such a manner so as to lose the values in

life which are essential for the development of a good man.

16. In the case of Kirtikumar Maheshankar Joshi (supra), a

claim was made by the father and maternal uncle of the children of

10 to 12 years under the Guardian and Wards Act, 1890. The father

was prosecuted under Section 498A of the Indian Penal Code,

1860. The children started residing with the maternal uncle. The

father filed a claim. The Judges talked with the children to assess

their state of mind and found that the custody of the children was

not to be handed over to the father though father has preferential

right. Considering the age of the children, the Court held the

children are intelligent to understand their well-being and so they

were handed over to some other person.

14 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

17. In the case of Louella Fernandes (supra) the Division Bench

of this Court has held that first set of circumstances relate to the

minor and the second set of circumstances relate to the character,

position and fitness of the proposed guardian. These two sets of

circumstances are to be read together and not in isolation. In that

case, there was an unnatural death of Hindu woman leaving behind

a girl child. The father of the child was in jail charged for murder.

The facts are similar to the present case. The child was in the care

and protection of maternal grandparents. So paternal aunt filed

Guardianship Petition. The mother was not converted to Christianity

during her life time. In the said case, the maternal grandfather was

appointed as guardian. The child was born in a family where the

father professed Christianity and mother was Hindu. So, the child

was born in Christian family and due to that, though the child was

considered as Christian, the mother remained Hindu and hence, the

intention of the mother not to opt for conversion was taken into

account.

18. In the case of R.V. Shrinath Prasad (supra), the mother died

in, apparently, a case of suicide. The maternal grandfather filed the

Petition for custody. That Application was allowed. It was held that

the custody was not to be disposed of hastily and parties to be given

15 of 37

::: Uploaded on – 15/11/2017 ::: Downloaded on – 16/11/2017 01:59:57 :::
FA1118_2014.doc

reasonable opportunity to place their material on record. The

custody, being a sensitive issue, can never be final but a change

can be made in the paramount interest of the child.

19. If at all the order passed by the learned trial Judge is found

perverse or is inconsistent with the legal principles or it is contrary to

the welfare of the child, then that order requires to be set aside. In

the present case, the main objections raised by the counsel for the

appellant are that the trial Court has erroneously treated this as a

summary proceedings which is not permissible under the law but

should have recorded evidence and the factor of religion is

overlooked by the Judge. I have referred the above the ratio laid

down by the different High Courts on the point of procedure laid

down by the Court while deciding the Application for guardianship.

In the present case, evidence is not recorded. The Court has

decided the Application on the basis of the affidavits and documents

filed by both the parties and submissions made by their respective

counsel. The entire facts were before the Court. The recording of

evidence is required only if the Court finds disputed questions of fact

which require to be examined and secondly, if at all the party prefers

application to lead evidence and if the Court rejects it, then it may

amount to deviation from the procedure and the matter is to be

16 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

remanded for recording of evidence. In the present case, the

appellant did not even move an application before the trial Court to

lead evidence. Once the appellant chose to proceed without

examining the witnesses, then it cannot be said that the Court has

violated the procedure. It is made clear that in Appeal also, the

party can move an application under Order 41 Rule 27 of the Code

seeking permission to lead evidence at the appellate stage.

However, no such application was made before this Court. Under

such circumstances, the submissions that only because the trial

Court did not record evidence and it was treated as summary

proceedings, therefore, the order is to be set aside and the matter to

be remanded cannot be accepted.

20. On account of very peculiar facts, this case places itself apart

from other cases. The ratio laid down in the above cases are the

guiding principles to decide the issue of guardianship. The facts of

the present case and the case of Louella Fernandes (supra) are

similar except a fact that the mother in the case of Louella

Fernandes did not convert herself to the other religion unlike in the

present case. The marriage between Nimmi and Aatif, i.e., parents

of Zeenat was a love marriage and within 3 months from marriage,

Nimmi opted to profess Islam and she was renamed as Bushra.

17 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

The child was born to a muslim couple. Thus, today undoubtedly,

religion of Zeenat is Islam and she is to be acquainted with the

principles and teachings of Islam. Her introduction with Holy Quran

and her offerings and prayers to Allah are integral part of her

religion. So, she should be aware and also taught about her

religion. Under Hindu and Mahomedan Law, the father controls and

dominates the religion of the child. In India, most of the states

follow patriarchal system. The Guardian and Wards Act which was

enacted in 1890 has not undergone much changes by our

legislature. Chapter 2 of the Act is about appointment and

declaration of guardian wherein under section 17, the lawmakers

have laid down the factors which ought to be considered by the

Court while appointing guardian.

21. Looking into section 17 of the Guardian and Wards Act, 1890

in threadbare is thus essential.

17. Matters to be considered by the court in
appointing guardian

(1) In appointing or declaring the guardian of a minor, the
court shall, subject to the provisions of this section, be
guided by what, consistently with the law to which the
minor is subject, appears in the circumstances to be for
the welfare of the minor.

(2) In considering what will be for the welfare of the minor,
the court shall have regard to the age, sex and religion of
the minor, the character and capacity of the proposed

18 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

guardian and his nearness of kin to the minor, the wishes,
if any, of a deceased parent, and any existing or previous
relations of the proposed guardian with the minor or his
property.

(3) If minor is old enough to form an intelligent
preference , the court may consider that preference.
(4) [* * *]
(5) The court shall not appoint or declare any person to be
a guardian against his will.

22. Section 17 is divided in 5 sub-sections. Sub-section (4) is

deleted. Sub-section (1) of Section 17 highlights that the Court

shall, subject to provisions of the said section, be guided by the

principle of welfare of the minor and while doing so, will be

consistent with the law to which the minor is subject. It means, the

Court shall take a view consistent with the personal law of the child

under which the child is governed.

23. In sub-section(2) of Section 17, the legislature has given the

list of the factors which are the determinant to decide guardianship.

It is divided in two sets. In the first set, the Court has to consider

factors related to age of the minor , i.e., whether minor is an infant, a

kid, a child or a teenager. The Court has also to consider the sex,

i.e., whether minor is a male or female. Due to biological changes in

the body of a girl child, she normally needs care and help of female

19 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

member in the family. The religion of the minor is also a determining

factor. In the second set, the Court has to consider the character

and capacity of the proposed guardian and the nearness of the kin

to the minor. The Court has also to take into account, the wishes of

the deceased parents and also existing and previous relations of the

proposed guardian with the minor and his property.

24. Sub-section (3) of Section 17 states that the Court may

consider the preference given by minor, i.e., choice of minor if the

minor is old enough to perform an intelligent preference. Thus, it is

not only the mere preference but it should be sensible and proper

preference.

25. Sub-section (5) is a negative guideline to the Court that no

person should be appointed as a guardian against his will.

26. On this backdrop, let me advert to the present set of facts.

Here both the parties are having same nearness to the minor. Both

are the grandmothers; one is paternal and the other is maternal.

However, the child had stayed for nearly all the time and longer

period with her paternal grandmother. She has school and friends

at the place where her paternal grandmother stays. The child is with

20 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

her since 6 months prior to the death of child’s mother. As stated

earlier, the law recognizes the religion of the father as the religion of

the minor. Under Article 25 of the Constitution, the constitution

framers have guaranteed the right of religion as the fundamental

right. Being democratic country, an individual after attaining

majority, may decide to renounce a religion to which he/she belongs

by birth or may convert himself/herself in any religion of his/her

choice or may choose to be non-religious. Such option is always

available in secular India. Thus, Section 17 of the Guardian and

Wards Act is consistent with the fundamental right under Article 25

of the Constitution. Though a fact of religion is to be taken into

account by the Court while deciding guardianship, this is not the

sole determinant which should cloud all other aspects. The welfare

of the child depends on the number of factors, which are not defined

anywhere in any Act including Guardians and Wards Act, 1890 or

the Hindu Minority and Guardianship Act, 1956.

27. “Welfare of the child” is nevertheless the paramount

consideration while handing over the custody or appointing the

guardian. The term “welfare of the child” has many facets, unfolded

layers and, therefore, it is left to the understanding and wisdom of

the Court. The welfare of the child is a bundle of facts, which the

21 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

Court has to take into account; it would entail broadly, health,

hygiene, nourishment, education, shelter, economic condition, love

and affection etc. There may be some other circumstances, which

are also to be taken into account while considering the welfare of

the child. Thus, though the welfare of the child is a umbrella word,

sometimes a particular circumstance becomes the decisive factor.

28. The paternal grandmother of Zeenat, i.e., appellant is muslim.

So as argued by the learned senior counsel Mr. Chavan, the

appellant would definitely be a proper guardian so far as criterion of

religion is concerned. It is correctly argued and mentioned in the

affidavit of the appellant that Zeenat is learning arabic so that she

will be able to read verses of Quran. Similarly, she will be

pardanashin lady after attaining 15 years of her age, so the training

to follow Islam is necessary and which is possible and available

under the guardianship of paternal grandmother. While reading

Section 17, I am of the view that sub-section (1) lays down a major

statement wherein it is made loud and clear that though the religion

by which the child is governed is to be taken into account, the

welfare of the minor is the paramount consideration. Thus, the

religion is one of the determinants and is not the only determinant.

22 of 37

::: Uploaded on – 15/11/201716/11/2017 01:59:57 :::
FA1118_2014.doc

29. In the case of Sheila Umesh Tahiliani vs. Soli Phirozshaw

Shroff Ors., reported in AIR 1981 Bom. 175, the Single Judge

of this Court while dealing with the similar issue of guardianship

where a Parsi mother after death of her Parsi husband embraced

Hindu religion and claimed for guardianship of her child, held that “In

the society in which we live, religion is a matter of one’s personal

faith and conversion cannot be regarded as a disqualification for the

custody of the minor so long as the guardian is capable of providing

a congenial, comfortable and a happy home for the minor”.

30. In the case of Gaurav Nagpal, reported in 2009(1) SCC 42,

the Supreme Court while explaining the term “welfare of the child”

has stated that mature and humane approach is required when

conflicting demands are made by the parties. In the said judgment,

the Supreme Court, dealing with Section 13 of Hindu Minority and

Guardianship Act, 1956, explained that the word “welfare” used in

Section 13 of the Act has to be construed literally and must be taken

in its widest sense. The moral and ethical welfare of the child must

also weigh with the Court as well as its physical well-being.

31. The learned counsel Ms. Agnes has heavily relied and argued

on the case filed by/on behalf of Zeenat against

23 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

respondent/maternal grandmother and her maternal uncles under

POSCO and the Indian Penal Code for the offence of child rape in

the Court of Thissur, Kerala. In reply, Mr. Chavan has pointed out

that in the order under challenge dated 5 th May, 2014 passed by the

learned District Judge, these facts were not before the learned

Judge and these were not the considerations to decide the custody.

But the learned Judge has unnecessarily given weightage to the

criminal background of the father and has refused the custody. The

learned Judge has erred in holding that the provisions of the Act are

having overriding effect over the personal laws in view of the welfare

and benefit of minor Zeenat. He has wrongly read Clause 352, 353

of the Mahomedan Law and did not consider section 17 in proper

perspective. Persuasively Mr. Chavan argued that the incidents

which have taken place after the impugned order and during the

pendency of First Appeal should not be given any weightage; the

criminal Court would deal with the said matter.

32. Let me deal with this aspect. The criminal record of the father

is taken into account as one of the major circumstances by the

learned Judge of the trial Court while deciding the issue of

guardianship. However, it is made clear that only because one

member in the family has committed murder, the entire family need

24 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

not carry the stamp of being criminal, but the safety of the child

should be a weighing factor on the mind.

33. Mentally both the grandmothers are capable of taking care of

Zeenat. At present, she is comfortable with her paternal

grandmother as she has stayed there for a longer period. The

comfort zone of the child is also required to be considered. Whether

the maternal grandmother can give her such comfort zone? The

learned counsel for the respondent/maternal grandmother has made

a statement that the respondent has dropped the idea to go to

Kerala, but she is going to stay in Dombivali, so there will not be

changed of language, medium and other conditions. It is

categorically denied that the respondent /maternal grandmother had

performed second marriage with Christian person. The maternal

grandmother has initiated the application for guardianship and she

is ready to provide a good quality of education. Thus, the

respondent/maternal grandmother is also offering the similar comfort

zone to Zeenat.

34. Admittedly, the alleged sexual assault, molestation occurred

after the impugned order was passed. As per the record, the

incident of molestation has taken place during the mid-term vacation

25 of 37

::: Uploaded on – 15/11/2017 ::: Downloaded on – 16/11/2017 01:59:57 :::
FA1118_2014.doc

when the custody of the child was given to the maternal

grandmother for 15 to 18 days. This Court is fully aware that when

a criminal case is registered, then the Criminal Court which is the

competent Court has to decide and give verdict in the said matter.

However, in the present case, the criminal case and safety of the

child being a major issue and there is a basic necessity to refer to

and discuss the circumstance of criminal case while deciding the

guardianship. The allegation is very serious and cannot be ignored.

After 15/16 days of temporary custody in vacation, the baby was

handed by the maternal grandmother to paternal grandmother on 1 st

October, 2014.

35. Zeenat was medically examined first time at Raigad Hospital

on 16th November, 2014. The report is as follows –

(i) redness over right and left thigh near groin and vulva;

(ii) contusion over right thigh region near groin;

(iii) tenderness at local side;

(iv) Gynaecologist opinion – Baby is irritable. Hymen is not

intact, hence internal examination cannot be done. So,

for expert opinion about internal examination of vagina,

baby is transferred to Higher Centre.

26 of 37

::: Uploaded on – 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

36. Hence, the baby was examined at J.J. Hospital, Mumbai. The

medical examination report of Zeenat at J.J. Hospital on 17 th

November, 2014 is as under-

        (i)      Hymen torn at 6 O'Clock
(ii) Congestion
(iii) labia minora congestion
(iv) No bleeding
(v) redness on right inner thigh region
(vi) suspected rash
(vii) adviced skin reference
(viii) No fresh external injury over body

Thus 20 days after the alleged incident in Summary of the
injuries shows-

        (i)      Congestion
(ii) tenderness over genitals
(iii) Hymen torn at 6 O'Clock

37. She was again medically examined third time at Government

Hospital, Thrissur. The medical examination report of Zeenat of

Government Hospital, Thrissur on 30 th December, 2014 is as

follows:

(i) pubic region, perineum and thighs - blackish skin

augmentation of upper thighs

(ii) Vulva- unhygienic with evacuations;

        (iii)    Hymen - intact;

(iv) Fourchette Posterior commissure - WVL

27 of 37

::: Uploaded on - 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

(v) Vagina - WVL

The observation made was that the child was not cooperative

for local examination.

       Injuries on the body (if any)      -     No injuries

Scientific examination findings - WVL

Opinion - ?

38. In the case of guardianship and custody, day-to-day

development and the change of circumstances ought to be taken

into account by the Court deciding the Application for guardianship.

This is the First Appeal. Hence it is the continuation of the Suit or

Application. In the present case, the father is held guilty for the

murder of his wife. He is awaiting the death sentence and has filed

mercy petition before the Dubai Court. The appellant is the mother

of the culprit. Naturally, she wants to save her son at any cost. It

was argued by the respondent/maternal grandmother that the

criminal case filed by the appellant is with ulterior motive to bring the

maternal grandmother to the terms of negotiation. If the mother of

victim, Nimmi forgives the murderer, then the Court may take a

lenient view in mercy petition and death sentence can be avoided as

per the law of Dubai. Such situation may be possible, however, no

importance can be given at this stage to such hidden agenda. Yet

28 of 37

::: Uploaded on - 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

the fact of criminal case of rape on a child filed by the paternal

grandmother is itself to be examined from a proper perspective, as it

involves a very different angle. If the entire sequence of the three

physical examinations of the child, lodging of the FIR is taken into

account, then this Court can see the only fact that the child had

undergone a tremendous physical as well as mental trauma.

39. I have interviewed the child personally on this issue. A child

cannot be sent to a house where there is slightest apprehension of

molestation. The physical assault necessarily follows mental trauma

and thus, where physical as well as psychological health of the child

is in danger, then handing over the custody of child to maternal

grandmother does not arise. However, there are continuous

persuasive counter arguments pointing out certain important

circumstantial and physical facts placed before the Court to show

that such criminal case is false. Therefore, I found that it is the

demand of this peculiar set of facts and circumstances to assess

prima facie the medical reports and the facts and to confirm whether

the child is really in danger of sexual molestation or these are false

allegations. The criminal court will take its own course to arrive at a

conclusion of guilt. However, this Court also has to undergo the

exercise of analyzing these facts to arrive at the truth in the interest

29 of 37

::: Uploaded on - 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

of safety, security and mental health of the child, as the

circumstances, relief claimed and remedy available are all

entangled with each other.

40. The child had to undergo internal medical examinations thrice

when she was 6 to 8 years old which shocks the conscience of this

Court. Her first medical report expresses doubt, her second medical

report is positive and third medical report is negative. The time gap

and manner in which the FIR was given also raise prima facie some

questions. In fact the medical reports show that the hygiene of her

private parts was not good. On 11th November, 2014 the appellant

filed Civil Application (St.) No. 29386 of 2014 in the Bombay High

Court for modification of the order of access, however, that was not

pressed. There is no reference of alleged sexual abuse of the child

during 15 to 31st October, 2014 in the said Civil Application.

41. Besides these documentary as well as factual record, I

interviewed the child. I have recorded my observations as follows:

"Today the child Zeenat Popere was interviewed by me in
presence of my (female) Private Secretary and Sheristedar
from 5.35 p.m. to 6.35 p.m. The child was friendly, looking
happy, ready to interact. She talked about her school
friends (Alisha and Maliya), her favourite food, her

30 of 37

::: Uploaded on - 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

ambition in life, about her relatives. She told that she is
staying with her mama (grandmother), Halima didi (college
student), Safia kala (who is now married) and choti dadi.

2. When the conversation was diverted towards her
grandmother whom she called as Nani, she became
tensed and told that she did not like her Nani. When I
asked her why she does not like her Nani, she gave two
reasons; firstly, her Nani shouts at her; and secondly, few
years back Nani took her to a doctor on the pretext that
she was taking her to a shop and then, nani blind folded
her and the doctor gave injection on her forearm and also
on her private part. Then, I asked her how many persons
are staying at Nani's house, to which she answered that
her two Mamus (uncles), namely, Nijal Mamu and Raiju
Mamu are staying with Nani. I asked her whether she like
her Mamus. At that time, she immediately said "No". Then
I asked the reason for this. She told that both the Mamus
had bad intention to touch her. I asked her what is meant
by bad touch. She told that her Nijal mamu removed her
nicker and did all sorts of things i.e., "Meri sath kuch bhi
kartha tha". So, I asked her "kuch bhi" means what. At that
time, she answered that Nijal Mamu pinched her on my
thighs and her thighs have became black. So, I
specifically asked her that besides pinching, whether he
has done anything to her private parts. So told "No" but
she told that Raiju Mamu used to lick her private part
(chattha tha). I asked her how many times it was done to
her, she told only once and it was long back.

31 of 37

::: Uploaded on - 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

3. She told me specifically that she does not want to go to
her Nani's house. Both the grandmothers and other
persons including lawyer of the respondent were called in
the chamber. At that time, she refused to talk with her
Nani."

42. Incidentally, earlier on 16th November, 2015 I had an occasion

to interview the same child on the point of access between two

grandmothers. At that time, I have recorded my finding in this way:

"Today, the child of 5 to 6 years old is produced before me

in Chamber. The child is continuously crying. She speaks

more in Urdu. However, she is referring to sexual assault

by her maternal uncle and she says that she was taken to a

Doctor and was given injection. She says that her private

part gets black whenever she plays because of sexual

assault committed by her maternal uncle.

It appears from her talk that the child is completely

tutored. Sexual assault was committed in October 2014

when access was given to her maternal grandmother by

the order of this Court. I am of the view assuming the child

is sexually abused, private part never gets blackened after

one month or more than one month if the child plays. Thus,

she is completely tutored and it appears that she is brought

32 of 37

::: Uploaded on - 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

up in an unhealthy atmosphere. In all fairness, access to

maternal grandmother is to be facilitated today itself.

Child's belongings are to be handed over to the maternal

grandmother. I am informed by the maternal grandmother

that the maternal uncle is not staying with her at present

and he is in Dubai and he will not visit during her access

period i.e., on 16th November, 2015 to 19th November,

2015. The child will stay with the maternal grandmother at

Dombivli and she will not be shifted to any other place. On

Friday, the 20th November, 2015 at 2pm, the child will be

brought to the Chamber and the paternal grandmother will

take the child back. The same arrangement i.e., 50%

access, shall continue further in all the vacations, till the

appeal is finally decided. I must mention here that the

paternal grandmother shall not try to contact the child

during this period."

43. It is to be noted that while interviewing her for the second time,

I have kept the first finding out of my mind and like a blank slate I

tried to understand what had happened to her. The child had

stayed with her maternal grandmother for 15 days and thereafter

also in 2014 she stayed with her for few days and no complaint is

33 of 37

::: Uploaded on - 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

made by the child. The children imagine and sometimes tend to

pretend. Considering all the circumstances, I am of the view that

Zeenat is unable to give intelligent preference and is tutored and

tend to imagine the sexual acts.

44. If the allegations are apparently false, then what is its effect?

They are very much related to the body of the child. Lodging an

apparently false case of rape is a very serious thing. Allegations

against each other by the parties claiming the guardianship may not

disqualify them for appointment of guardian but one cannot use a

child as a pawn to settle the score against another. To make the

child aware of possible sexual assault or misbehaviour is one thing

and to exploit her sexuality to blacken the face of the opposite party

and bring it to disrepute is very objectionable and does not fit in the

parameters of the "welfare of the child". Hence, there is an attempt

to create malice in the mind of the child against the family of her

deceased mother. She is the most unfortunate child who has lost

the love of both her father and mother and is shuttling between her

two grandmothers.

45. The right to live with dignity, the right to preserve childhood

and the human rights of the child are contemplated within the

Fundamental Right to Life under Article 21 of the Constitution of

34 of 37

::: Uploaded on - 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

India. Though the Constitution grants the Right to Religion under

Article 25, under such circumstances, Article 21 stands on a higher

pedestal than the right of religion. In fact, all the religions have

noble principles and thoughts wherein human dignity is revered. No

religion teaches that the child be exposed to vices, dishonesty and

falsity. The child is innocent, rather innocence is itself the

inseparable from the child. Thus, the welfare of the child very much

includes protection of innocence of the child. To be innocent is itself

the fundamental right of the child. If at all the child is staying in such

an unhealthy atmosphere, then it is bound to crush her innocence

and will scuttle her normal mental growth, as she will be a victim of

continuous malice, false allegations, vengeance etc.

46. After considering all the necessary parameters of the welfare

of the child, I maintain the order passed by the learned District

Judge, Mangaon, District Raigad appointing the maternal/

grandmother as guardian of minor child Zeenat with further

directions as follows:

(a) The custody of Zeenat is to be handed over to maternal

grandmother immediately.

35 of 37

::: Uploaded on - 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

(b) The maternal grandmother shall stay with the child

Zeenat at Dombivili and not to shift to Kerala or outside

the State of Maharashtra without the permission of the

Court.

(c) The maternal grandmother shall make immediate

arrangement for admission of Zeenat at school for the

second term. The child is to be shifted to the new

school in the month of December/January or with

special permission may be allowed to appear her in

school in Mangaon for the annual examination.

(d) By way of abundant precaution, the maternal uncles

not to stay in the house with Zeenat till the criminal trial

gets over.

(e) The child is to be sent to her paternal grandmother on

Ramzan Id, Bakrid Id, Moharam and other religious

occasions. For other special circumstances, with the

permission of the Court, access may be granted.

(f) The paternal grandmother is to be given 50% access in

the summer vacation.

47. In view of the above, First Appeal is disposed of.

36 of 37

::: Uploaded on - 15/11/2017 16/11/2017 01:59:57 :::
FA1118_2014.doc

48. In view of disposal of the First Appeal, Civil Applications stand

disposed of accordingly.

(MRS.MRIDULA BHATKAR, J.)

37 of 37

::: Uploaded on - 15/11/2017 16/11/2017 01:59:57 :::

Leave a Comment

Your email address will not be published. Required fields are marked *