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Sri Abdul Abu Bakar Siddiq vs Smt Zainab Saniya on 2 April, 2018

1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 02ND DAY OF APRIL 2018

BEFORE

THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN

WRIT PETITION No.8801/2018 (GM-FC)

BETWEEN :

SRI ABDUL ABU BAKAR SIDDIQ
S/O ABDUL WAHAB,
AGED ABOUT 30 YEARS,
R/AT NO.42/1, 4TH CROSS,
AROKYAMMA LAYOUT,
3RD STAGE, PILLANNA GARDEN,
BENGALURU-560 045.
… PETITIONER

(BY SRI MOHAMMED THOUHEED, ADV.)

AND:

1. SMT. ZAINAB SANIYA
D/O. AND C/O. JANAB,
MOHAMMED AMMERULLA (AMEER) SAHEB,
AGED ABOUT 25 YEARS,
R/AT NO.3 SHAMPURA MAIN ROAD,
OPP. AMBEDKAR HOSPITAL,
NEAR GANDHI NAGAR PETROL BUNK,
R. T. NAGAR (P),
BANGALURU-560 032.

2. SRI JANAB L. MOHAMMED
AMMERULLA (AMEER) SAHEB,
AGED ABOUT 58 YEARS,
R/AT NO.3 SHAMPURA MAIN ROAD,
OPP. AMBEDKAR HOSPITAL,
NEAR GANDHI NAGAR PETROL BUNK,
R. T. NAGAR (P),
BANGALURU-560 032.
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3. SMT. SULTHANA BANU
W/O. JANAB L. MOHAMMED,
AMMERULLA (AMEER) SAHEB,
AGED ABOUT 50 YEARS,
R/AT NO.3, SHAMPURA MAIN ROAD,
OPP. AMBEDKAR HOSPITAL,
NEAR GANDHI NAGAR PETROL BUNK,
R. T. NAGAR (P),
BENGALURU-560 032. … RESPONDENTS

THIS WRIT PETITION IS FILED UNDER ARTICLES 226
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 03.01.2018 ON I. A. NO.2 IN G AND WC
NO.107/2017 PASSED BY THE III ADDITIONAL FAMILY JUDGE,
BANGALORE VIDE ANNEXURE-F; DIRECT THE RESPONDENTS
TO GIVE THE CUSTODY OF THE CHILD TO THE PETITIONER
UNTILL THE FINAL ORDER IN G AND WC NO.107/2017.

THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING :

ORDER

The petitioner, Mr. Abdul Abu Bakar Siddiq, is

aggrieved by the order dated 03.01.2018, passed by the

III Additional Principal Family Judge, Bengaluru, whereby

the learned Family Court has rejected the petitioner’s

application, filed under Section 25 of the Guardians and

Wards Act (“the Act”, for short), wherein the petitioner had

sought visitation rights to visit his minor daughter Umme

Haney on every Saturday and Sunday.

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2. Briefly the facts of the case are that the petitioner

was married to Ms. Zainab Saniya. During their wedlock, a

daughter, namely Umme Haney was born. However, as

disputes had not just arisen between the husband and wife,

but more so between the two families, on 28.01.2012, the

petitioner and the respondent-wife signed a Kulanama and

their marriage came to an end. Subsequently, the petitioner

filed an application under Section 25 of the Act, wherein he

prayed that he should be given visitation rights to see his

daughter on every Saturday and Sunday. However, by the

impugned order dated 03.01.2018, the said application has

been rejected by the learned Family Court. Hence, this

petition before this Court.

3. Mr. Mohammed Thouheed, the learned counsel for

petitioner, has vehemently contended that the learned trial

Court has committed an error while relying on the Kulanama

dated 28.01.2012. For, the Kulanama relates only to the

dissolution of marriage, and does not relate to the child

custody. Therefore, the conclusion drawn by the learned

Family Court that since the petitioner has given up his right
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over the child in the Kulanama dated 28.01.2012, he is not

entitled to file an application under Section 25 of the Act,

the said conclusion is clearly erroneous.

Secondly, the petitioner was forced to sign the

Kulanama. Therefore, any condition contained in the

Kulanama, qua the child custody, is not binding on the

petitioner. Hence, the said condition cannot be read against

the petitioner. Therefore, the impugned order deserves to be

set aside by this Court.

4. Heard the learned counsel for the petitioner, and

perused the impugned order.

5. According to the Kulanama dated 28.01.2012, both

the parties had agreed that the custody of the child shall be

with the respondent-wife. In fact, the petitioner had clearly

stated in the Kulanama as under:-

“Further, we are having a female child,
namely Umme Hani, aged about 2 ½ years, she
will be in the custody of my wife and she will take
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care of her and I will have no right, claim of
whatsoever nature over the said female child.”

6. Undoubtedly, a commitment was made by the

petitioner to the respondent-wife. Therefore, even if the

Kulanama does not have any relation to the custody of the

child, nonetheless once the commitment is made by the

petitioner to the respondent under the doctrine of estoppel,

he cannot be permitted to wriggle out of the promise made

by him. After all, the respondent-wife had changed her legal

position, qua the petitioner only on the basis of the promise

made by the petitioner that he will not seek any custody or

right over the child. Therefore, the first contention raised by

the learned counsel for the petitioner is clearly unacceptable.

7. Although the learned counsel claims that the

petitioner was forced to sign the Kulanama, interestingly

since 28.01.2012, the petitioner has not taken any action,

either civil or criminal, against the alleged perpetrator who

had forced him to sign the Kulanama. Moreover, the

petitioner has not even bothered to mention the name of the

person who had forced him to sign the Kulanama.
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Therefore, the contention that he was forced to sign the

Kulanama is clearly an afterthought, and a clever ploy to

escape the commitment made by the petitioner. Therefore,

even the second contention is clearly unacceptable.

8. Hence, there is no illegality, or perversity in the

impugned order. This petition being devoid of any merit is

hereby dismissed.

Sd/-

JUDGE
Np/-

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