Kerala High Court

Ayisakkutty vs Abdul Samad on 12 November, 2004

Bench: K Radhakrishnan, K Thankappan
JUDGMENT

K.S. Radhakrishnan, J.

1. This appeal arises out of the order passed in I. A. No. 483 of 2004 granting custody of the minor child aged 4 years to the father in preference to the maternal grandmother.

2. Senior Counsel appearing for the maternal grandmother Sri. K.C. John submitted that the order passed by the Court below is in violation of Sections 352 and 353 of the Mulla’s Principles of Mahomedan Law with regard to guardianship. Counsel appearing for the respondent-father Smt. Molly Jacob on the other hand contended that the above mentioned provisions would give way to the provisions of the Guardian and Wards Act with regard to the welfare of the child. Father of the child filed O.P. before the Family Court, Manjeri for custody of his minor son who was in the custody of the maternal grand parents. Mother of the child had committed suicide and after her death child was brought up by the maternal grandparents. Father had filed an application for the custody of the child which was earlier allowed by the Family Court. Matter was taken up before this Court by the maternal grand parents by filing M.F.A. No. 847 of 2002 before this Court. This Court modified the order and father was only permitted to have visitation rights to take the child occasionally during festival sessions as well as on holidays. While holding so, this Court held as follows:

“The child is, since the death of its mother, living with the maternal grand parents. If a transplantation is made at this age of the child, it will badly affect the child especially when the father has re-married and a child is born to him in the new marriage. He had already been allowed, as per the interim order, to have visits at his choice, at the house of the appellant. That is being continued. In such circumstances, he can surely win over the affection of the child in due course and the child will also be aware in due course of the fact that its betterment will always be in the hands of the respondent.”

Later maternal grandfather died. Father then preferred I.A. No. 483 of 2004 for custody of the child. Change of circumstances were brought before the Family Court for seeking custody of the minor son. It was pointed out that on the death of the maternal grandfather grandmother alone would not be able to look after the child and for the welfare of the child it is necessary that the child be put in the custody of the father. Family Court on evidence found that for the welfare of the child it is necessary that the child be in the custody of the father. Petition was allowed giving custody of the child to the father. Right of the mother for custody of the infant children is dealt with under the Mahomedan Law.

3. Section 352 of the Mahomedan Law states as follows:

“352. Right of mother to custody of infant children. The mother is entitled to the custody (hizanat) 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 (e), unless she marries a second husband in which case the custody belongs to the father(f).”

Section 353 is also relevant and the same is extracted below.

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:-

1) mother’s mother, how highsoever;

2) father’s mother, how highsoever;

3) full sister;

4) uterine sister;

5) consanguine sister;

6) full sister’s daughter;

7) uterine sister’s daughter;

8) consanguine sister’s daughter;

9) maternal aunt, in like order as sisters; and

10) paternal aunt, also in like order as sisters.

Section 353 would indicate that in default of mother as per the Personal Law of Muslims, child has to be in the custody of the mother’s mother and then father’s mother, how highsoever. Father is not included in Section 353. Contention was raised that on the basis of the above mentioned provisions of Personal Laws of Muslims, mother’s mother is entitled to have the custody of the minor son.

4. We are of the view when the question of the custody of the child is involved, the primary consideration which weigh with the Court is the welfare of the child. Legal position is well settled by a catena of decisions of this Court as well as that of the Apex Court. Reference may be made to the decisions of the Apex Court in Jai Prakash Khadria v. Shyqm Sunder Agarwalla ((2000) 6 SCC 598) and R.V. Srinath Prasad v. Nandamuri Jayakrishna ((2001) 4 SCC 71). It is settled principle of law that custody orders, by their very nature, can never be final but a challenge should only be made if it is in the paramount interest of the child concerned. Custody of a minor is also a matter involving sentimental attachment. Such a matter is to be approached and tackled carefully. A balance has to be struck between the attachment and sentiments of the parties towards the minor children and the welfare of the minors which is of paramount importance. Principles exported by Personal Law and the provisions referred to herein before cannot be read in isolation and be divorced under the provisions of the Guardian and Wards Act. The overriding consideration is welfare of the child and the Personal Law would yield the provisions of the Guardian and Wards Act. Several decisions were cited at the bar for and against. See: Rafiq v. Smt. Bashiran (AIR 1963 Raj. 239), Salamat Ali v. Smt. Majjo Begum (AIR 1985 AH. 29), Mohammed Yunus v. Smt. Shamshad Bono (AIR 1965 All. 217), Zynab Bi alias Bibijan v. Mohammad Ghouse Mohideen (AIR 1952 Madras 284), Baby Sarojam v. S. Vijayakrishnan Nair (AIR 1992 Kerala 277), Yusuf v. Sakkeena (1998 (2) KLT 573), Merlin Thomas v. C.S. Thomas (2003 (2) KLT (SC) (SN) 15 = 2003 (1) KLJ 633) and Chakki v. Ayyappan (1988 (1) KLT 556).

5. The Court would always respect the sentiments of the grandmother. Child’s mother has committed suicide. Father later remarried and has got children. Conduct of remarriage by the father of the child itself is not a ground to reject the prayer for custody. Welfare of the child is of paramount consideration. By giving due respect to the sentiments expressed by the grandmother, we are of the view, it is for the welfare of the child that the child be with the father.

6. Grandmother is a diabetic patient and she is residing with her another daughter Amina. Petitioner’s son is residing in Amina’s house and grandmother is also depending on her. We are of the view, the mere fact that the father has remarried and has got children in that wedlock is not a ground to deny custody to him. In the second marriage he has got a child aged 1 1/2 years and that he would be a good company for his child also. In fact we are convinced the Family Court has taken the welfare of the child is of prime importance and ordered custody to the father. We find no reason to upset the order. The appeal is accordingly dismissed. The appellant can always move the Family A Court for visitorial rights.