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Judgments of Supreme Court of India and High Courts

Dr. Rasheed Jameel Siddiqui vs Dr. Smt. Sadiya Hussain on 15 February, 2018

M.A. No. 3634/2013.
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HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR

(Division Bench: Hon’ble Shri Justice S.K. Gangele
Hon’ble Smt. Justice Anjuli Palo)

Miscellaneous Appeal No. 3634/2013

Dr. Rashid Jamil Siddiqui
Versus
Dr. Smt. Sadiya Hussain others

Shri Rakesh Pandey, learned counsel for the appellant.
Shri S.A. Khan, learned counsel for the respondent.

Whether approved for reporting:

Law laid down:

Significant paragraphs:

JUDGMENT

(Pronounced on 15/02 /2018)

Per S.K. Gangele J

Appellant has filed this appeal against the judgment dated

30/09/2013. By the aforesaid judgment, the trial court refused

to grant custody of children Mohd. Aman Siddiqui and Mohd.

Fadil Siddiqui to the appellant, however, the trial court granted

permission to the appellant to meet with the children.

2. Marriage of appellant and respondent no. 1 wife was

solemnized on 28/09/2002 at Jabalpur in accordance with

Muslim rituals. Appellant and respondent both lived in

Barabanki, thereafter at Saudi Arabia. It is an admitted fact that
M.A. No. 3634/2013.

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appellant is working as doctor at Saudi Arabia. Respondent is

also a doctor (eye surgeon). She is working at Jabalpur.

Respondent was in service and served as doctor in Saudi

Arabia, however, she returned back after sometime.

Respondent pleaded that nature and act of the appellant was

not proper. He practiced cruelty that is why she left job at

Saudi Arabia and returned back to Jabalpur. At present she has

a private clinic and also working in a Nursing Home.

Respondent lodged report under Section 498-A against the

appellant and case is pending.

3. Appellant sought guardianship of children on the ground

that respondent is not able to maintain them properly. They are

not getting good education. Appellant has sufficient means to

incur the expenses of education of his children. Appellant

further pleaded that his family members are living in Barabanki

and he is working in Saudi Arabia and there is good facility of

education to his children. Same facts have been argued by the

counsel for the appellant. Learned counsel for the appellant

further submitted that the trial court did not consider the

statutory provisions of Section 7 and 25 of Guardians and

Wards Act, 1890 while rejecting application of appellant for

grant of guardian-ship and custody of minor children.

4. Learned counsel for the appellant relied on following

judgments in support of his contentions.

M.A. No. 3634/2013.

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1. Ram Kishore Singh Vs. Nirmala Devi Kushwaha
2006(3) MPLJ 194.

2. J. Selvan Vs. N. Punidha 2007(4) CTC 566.

3. Mohan Kumar Rayana Vs. Komal Mohan Rayana
(2010) 5 SCC 657.

5. Learned counsel for the respondent has submitted that

since birth, both the children have been living with the

respondent. They are getting proper education. They have

refused to live with appellant. Welfare of children is very well

looked after by respondent. The trial court has considered all

the aspects and granted proper custody.

6. Apex Court in the case of Purvi Mukesh Gada Vs.

Mukesh Popatlal Gada and another (2017) 8 SCC 819

has held that welfare of minor is paramount consideration while

considering the case of custody of minor. The Apex Court has

held as under:-

“10.5 The High Court has discussed the law on custody
of children and explained the ‘welfare principle’, which
is the paramount consideration while deciding custody
matters is to see where the welfare of children lies.
Applying this principle, the direction is given to restore
the custody of the children to the respondent after the
end of academic term in April or May 2016.

11. We may say at the outset that though the ‘welfare
principle’ is correctly enunciated and explained in the
impugned judgment, no reasons are given as to how
this principle weighed, on the facts and circumstances
of this case, in favour of the respondent. Instead two
main reasons which have influenced the High Court
are: (i) earlier detailed orders are passed by the
Additional ACMM allowing the respondent to retain the
custody; and (ii) the appellant here had not given
access of children to the respondent even during
weekend, in spite of orders passed by the High Court.

12. After hearing the counsel for the parties at length,
M.A. No. 3634/2013.

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we are of the opinion that the matter is not dealt with
by the High Court in right perspective. Before
supporting these comments with our reasons, it would
be apposite to take note of certain developments from
June 17, 2015, the date on which the respondent had
himself handed over the children to the appellant, till
the passing of the orders by the High Court. It is also
necessary to state the events which took place during
the pendency of these proceedings.”

7. Section 7 of Guardians and Wards Act 1890 reads as

under:-

“7. Power of the Court to make order as to
guardianship.–

(1) Where the Court is satisfied that it is for the welfare
of a minor that an order should be made–

(a) appointing a guardian of his person or property or
both, or

(b) declaring a person to be such a guardian the Court
may make an order accordingly.

(2) An order under this section shall imply the removal
of any guardian who has not been appointed by will or
other instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or
other instrument or appointed or declared by the Court,
an order under this section appointing or declaring
another person to be guardian in his stead shall not be
made until the powers of the guardian appointed or
declared as aforesaid have ceased under the provisions
of this Act.”

8. The aforesaid section has been considered by the Apex

Court in the case of Ruchi Majoo Vs. Sanjeev Majoo,

(2011) 6 SCC 479 and has held as under:-

“Interest and welfare of the minor being paramount, a
competent court in this country is entitled and indeed
duty bound to examine the matter independently, taking
the foreign judgment, if any, only as an input for its final
adjudication. Decisions of this Court in In Dhanwanti Joshi
v. Madhav Unde 1998(1) SCC 112 and Sarita Sharma v.
Sushil Sharma (2000) 3 SCC 14 (supra) clearly support
M.A. No. 3634/2013.

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that proposition. ”

9. The dictum of law is that court has to consider welfare of

minor while making order in regard to guardianship of a minor.

In the present case both the minor sons have stated during

mediation proceeding that they did not want to live with the

appellant. The same facts have been recorded in the mediation

proceeding dated 20/11/2017. It is mentioned that children

refused to have meeting with the appellant. The appellant

himself made allegation that minds of the children poisoned.

Apart from this it is a fact that the appellant has been working

in Saudi Arabia. Respondent is also in job. She is earning

decent amount because she is an eye surgeon. She has private

clinic as well as she is working in a Nursing Home. Both sons

are getting good education. They have been living with the

respondent from their birth. At present they are aged near

about 13 and 12 years.

10. Taking into consideration of the aforesaid facts, in our

opinion, the trial court has rightly passed the impugned order.

We do not find any merit in this appeal, it is hereby dismissed.

No order as to costs.

(S.K. GANGELE) (SMT. ANJULI PALO)
JUDGE JUDGE

Digitally signed by ARVIND KUMAR MISHRA
Date: 2018.02.15 14:49:08 +05’30’

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