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.
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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
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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
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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
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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.
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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.
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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
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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
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(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
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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.
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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;
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(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.
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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.
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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.
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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
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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
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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.
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
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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 bodyThus 20 days after the alleged incident in Summary of the
injuries shows-(i) Congestion
(ii) tenderness over genitals
(iii) Hymen torn at 6 O'Clock37. 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
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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 injuriesScientific 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
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FA1118_2014.docthe 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
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FA1118_2014.docof 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
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FA1118_2014.docambition 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
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FA1118_2014.doc3. 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
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FA1118_2014.docup 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
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FA1118_2014.docmade 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
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FA1118_2014.docIndia. 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.
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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.
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FA1118_2014.doc48. In view of disposal of the First Appeal, Civil Applications stand
disposed of accordingly.
(MRS.MRIDULA BHATKAR, J.)
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