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Ishaq Mohd vs Mohd. Imran on 27 February, 2020

(1 of 10) [CMA-2152/2019]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 2152/2019

1. Shri Ishaq Mohd. S/o Shri Shafi Mohd., Aged About 40
Years, B/c Musalman (Hela), R/o 410 Kanji Ka Hata,
Kanod Ki Haveli, Udaipur (Raj.).
2. Smt. Shameem Bano W/o Shri Ishaq Mohd., Aged About
36 Years, B/c Musalman (Hela), R/o 410, Kanji Ka Hata,
Kanod Ki Haveli, Udaipur (Raj.).
—-Appellants/Applicants
Versus
1. Shri Mohd. Imran S/o Shri Chhotu Khan @ Chachi Bhai,
Aged About 28 Years, B/c Musalman (Hela), R/o 172,
Kanod Ki Haveli, Kanji Ka Hata Udaipur (Raj.).
2. Shri Chhotu Khan @ Chachi Bhai S/o Shri Anarji Hela,
Aged About 57 Years, B/c Musalman (Hela), R/o 172,
Kanod Ki Haveli, Kanji Ka Hata Udaipur (Raj.).
3. Smt. Salma Bano W/o Shri Chhotu Khan @ Chachi Bhai,
Aged About 51 Years, B/c Musalman (Hela), R/o 172,
Kanod Ki Haveli, Kanji Ka Hata Udaipur (Raj.).
—-Respondents/Non-applicants

For Appellant(s) : Mr. Khet Singh Rajpurohit
For Respondent(s) : Mr. Shambhoo Singh Rathore with
Mr. Bharat Singh Rathore

HON’BLE MR. JUSTICE SANGEET LODHA
HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

27/02/2020

Per Hon’ble Dr. Pushpendra Singh Bhati, J.

1. This misc. appeal under Section 47 of the Guardians

and Wards Act, 1890 read with Section 19 of the Family Courts

Act, 1984 has been preferred claiming the following relief:

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“It is, therefore, most humbly prayed that this
appeal may kindly be allowed and the order dated
01.07.2019 passed by the learned Family Court,
Udaipur to the extent of rejection of custody to the
appellants, may kindly be set aside and the
application filed by the appellants under Section 25
of the Guardian and Wards Act may kindly be allowed
in toto and the respondents may kindly be directed
to hand over the custody of Master Mohd. Sultan to
the appellants forthwith. Any other appropriate order
which the Hon’ble Court deems fit and favourable to
the welfare of the wards may kindly be passed in
favour of the appellants.”

2. Brief facts of this case, as noticed by this Court, are

that the appellants/applicants are grandfather and grandmother

(maternal), and respondent No.1/non-applicant is father of the

child and the respondents No.2 and 3/non-applicants are

grandfather and grandmother (paternal). The current custody of

the child, namely, Master Mohd. Sultan is with the

respondents/non-applicants, and the same is being sought by the

appellants/applicants.

3. Smt. Nargis Bano daughter of the appellants got

married to respondent No.1-Mohd. Imran on 16.05.2014 and a

male child, Master Mohd. Sultan was born on 10.02.2015. The

allegation is that under undue harassment caused by the

respondents, Smt. Nargis Bano committed suicide on 24.08.2016,

resulting into lodging of an FIR at Police Station, Ghantaghar,

Udaipur. Thereafter, the police, after due investigation, filed a

charge-sheet against the respondents for the offences under

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Sections 498A, 304B and 302/34 of the Indian Penal Code, and

accordingly, the trial commenced.

4. Mr. Khet Singh Rajpurohit, learned counsel for the

appellants/applicants submits that a compromise had happened

between the parties during the course of criminal trial vide

agreement dated 17.05.2017, in which it was agreed that the

custody of Master Mohd. Sultan was to remain with the

appellants/applicants, as they assured proper care of education,

welfare and future development of the child. Such compromise, as

per learned counsel for the appellants/applicants, also resulted

into acquittal of the respondent No.1 in the criminal case by the

Court of learned Additional District Judge (Women Atrocities),

Udaipur.

5. Learned counsel for the appellants/applicants further

submits that thereafter breaching the aforementioned

compromise, custody of Master Mohd. Sultan was forcibly taken

away by the respondents and the same resulted into filing of

complaint by the appellants/applicants under Section 97 of the

Code of Criminal Procedure before the Additional District

Magistrate (City), Udaipur, wherein the Additional District

Magistrate observed that since the matter pertained to the

custody of the ward, therefore, the said forum has no jurisdiction

and the appellants/applicants were directed to approach the

appropriate forum. Thus subsequently, the application in question

was moved under Section 25 of the Guardians and Wards Act by

the appellants/applicants before the learned Family Court, Udaipur

seeking custody of the child, Master Mohd. Sultan. However, the

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said application, to the extent of handing over of custody of the

child to the appellants/applicants, was rejected vide the impugned

order dated 01.07.2019.

6. Learned counsel for the appellants/applicants also

submits that the paramount welfare of the child is with the

maternal grandparents, as the education, welfare and future

development of Master Mohd. Sultan would be taken care of in

their custody in a better way.

7. Learned counsel for the appellants/applicants further

submits that the conduct of the non-applicant/respondent No.1-

husband causing harassment to Smt.Nargis Bano resulted into her

death by committing suicide, but still the maternal

grandparents/appellants have compromised the issue only on the

count that Master Mohd. Sultan would remain in their custody,

thereby his education, welfare and future development shall be

appropriately taken care of.

8. Learned counsel for the appellants/applicants also

seriously apprehends remarriage to be solemnized by respondent

No.1/non-applicant, which would lead to neglect of the child,

Master Mohd. Sultan.

9. Learned counsel for the appellants/applicants relied

upon the judgment rendered in Khatija Begum Vs. Gulam

Dastagir, reported in AIR 1976 AP 128, relevant portion of

which reads as under:-

“11. But it does not follow that the appellant cannot
be permitted to retain the custody of the minor, which
is the alternative prayer in the petition as amended.

Under Hanafi School of Mohammedan Law, to which

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the parties belong, the mother is entitled to the
custody (Hizanath) of her male child until he has
completed the age of seven years and of her female
child until she has attained puberty. In this case, the
minor is a female child who has not attained puberty
as she is only six years old even today. In the
absence of the mother, the custody of such a child
belongs to the mother’s mother, namely, the
appellant herein. There can be no doubt, therefore,
under the personal law of the parties, the appellant is
entitled to the custody of the minor and not the
father.

Thus, the position under Mohammedan Law is
while the father is the guardian of the minor, the
custody of the minor should be with the grand-mother
in the present case as the minor is a female child who
has not attained puberty. It was however, contended
that Section 19 of the Guardians and Wards Act
expressly provides that no order appointing or
declaring a guardian should be made for the person of
a minor whose father is living and reliance was placed
upon the decision of the Privy Council in Mrs. Annie
Besant v. G. Narayaniah (AIR 1914 PC 41) in which it
was observed that no order declaring a guardian can
be by reason of Section 19 of the Guardians and
Wards Act be made during the lifetime of the father
unless in the opinion of the court he is unfit to be
their guardian.

The section as well as the decision referred to
above deal only with the case of appointment of a
guardian. The section does not prohibit the court from
dealing with the custody of the minor. The proper way
in which Section 19 can be reconciled with the
personal law of the parties concerned is to hold that
while the father should be the guardian of the minor,
the custody should be with the grand-mother. As
pointed out by Mulla in ‘Principles of Mohammedan
Law’ sixteenth edition at page 325 the father is the
primary and natural guardian of his minor children
and the right of custody of the mother and the female
relations is subject to the supervision of the father
which he is entitled to exercise by virtue of his
guardianship. The right of Hizanat does not carry with
it all the powers which a guardian of the person of a
minor has under the Guardians and Wards Act, 1890.”

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10. Learned counsel for the appellants/applicants also

placed reliance on the precedent law laid down by the Hon’ble

Supreme Court in Athar Hussain Vs. Syed Siraj Ahmed

Ors., reported in (2010) 2 SCC 654, relevant portion of which

reads as under:-

“30. Reasons are as follows: Section 12 of the Act
empowers courts to “make such order for the
temporary custody and protection of the person or
property of the minor as it thinks proper”. (emphasis
supplied) In matters of custody, as well settled by
judicial precedents, the welfare of the children is the
sole and single yardstick by which the court shall
assess the comparative merit of the parties contesting
for the custody. Therefore, while deciding the question
of interim custody, we must be guided by the welfare
of the children since Section 12 empowers the court to
make any order as it deems proper.

31. We are mindful of the fact that, as far as the
matter of guardianship is concerned, the prima facie
case lies in favour of the father as under Section 19 of
the Guardians and Wards Act, unless the father is not
fit to be a guardian, the court has no jurisdiction to
appoint another guardian. It is also true that the
respondents, despite the voluminous allegations
levelled against the appellant have not been able to
prove that he is not fit to take care of the minor
children, nor has the Family Court or the High Court
found him so. However, the question of custody is
different from the question of guardianship. Father can
continue to be the natural guardian of the children;
however, the considerations pertaining to the welfare
of the child may indicate lawful custody with another
friend or relative as serving his/her interest better.

32. In Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1
SCC 840 : (1973) 3 SCR 918] , keeping in mind the
distinction between right to be appointed as a guardian
and the right to claim custody of the minor child, this
Court held so in the following oft quoted words: (SCC
pp. 854-55, para 15)

“15. … Merely because the father loves his children and
is not shown to be otherwise undesirable cannot
necessarily lead to the conclusion that the welfare of

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the children would be better promoted by granting
their custody to him as against the wife who may also
be equally affectionate towards her children and
otherwise equally free from blemish, and, who, in
addition, because of her profession and financial
resources, may be in a position to guarantee better
health, education and maintenance for them.”

33. In Siddiqunnisa Bibi v. Nizamuddin Khan [AIR
1932 All 215] , which was a case concerning the right
to custody under the Mohammedan Law, the Court
held: (AIR p. 218)

“A question has been raised before us whether the
right under the Mahomedan Law of the female relation
of a minor girl under the age of puberty to the custody
of the person of the girl is identical with the
guardianship of the person of the minor or whether it is
something different and distinct. The right to the
custody of such a minor vested in her female relations,
is absolute and is subject to several conditions
including the absence of residing at a distance from the
father’s place of residence and want of taking proper
care of the child. It is also clear that the supervision of
the child by the father continues in spite of the fact
that she is under the care of her female relation, as the
burden of providing maintenance for the child rests
exclusively on the father.”

34. Thus the question of guardianship can be
independent of and distinct from that of custody in the
facts and circumstances of each case.

41. However, the High Court of Rajasthan held that in
the light of Section 19 which bars the court from
appointing a guardian when the father of the minor is
alive and not unfit, the Court could not appoint any
maternal relative as a guardian, even though the
personal law of the minor might give preferential
custody in her favour. As is evident, the
aforementioned decision concerned appointment of a
guardian. No doubt, unless the father is proven to be
unfit, the application for guardianship filed by another
person cannot be entertained. However, we have
already seen that the question of custody was distinct
from that of guardianship. As far as matters of custody
are concerned, the court is not bound by the bar
envisaged under Section 19 of the Act.”

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11. Learned counsel for the appellants/applicants thus,

tried to make a fine distinction between the guardianship and the

right to custody, by taking the issue of right to custody tilting

towards paramount welfare of the child, which is appreciable in

terms of jurisprudential distinction.

12. Mr. Shambhoo Singh Rathore appearing with Mr. Bharat

Singh Rathore, learned counsel appearing for the

respondents/non-applicants however, submits that the natural

guardian of the child is his father, and just because there were

certain allegations, which could not even be proved before the

competent court, the father cannot be denied custody of his own

child. As per learned counsel for the respondents, the allegations

levelled by the appellants/applicants are mere apprehensions and

cannot be made basis for determining the custody of the child in

the perspective of Section 25 of the Guardians and Wards Act.

13. Learned counsel for the respondents/non-applicants

also submits that there is nothing on record, which could suggest

any conduct on the part of appellants, while being custodian of the

child, detrimental to the education, welfare and future

development of the child.

14. After hearing learned counsel for the parties as well as

perusing the record of the case alongwith the precedent laws cited

at the Bar, this Court is of the opinion that the fundamental rule

shall be the paramount welfare of the child, and unless there is

something, which is pointed out, in no uncertain terms, making

any impact upon the welfare of the child in question, the prayer

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regarding handing over of custody of the child to his maternal

grandparents, cannot be accepted.

15. The precedent law laid down in the judgment rendered

in Khatija Begum (supra) was in specific reference to the

custody of a female child, who, at the relevant time, had not

attained puberty; whereas the present case pertains to the

custody of a male child, and this Court is having no doubt that

even under the Mohammedan Law, father is the natural guardian.

There is no material on record, which could suggest any ill-

treatment being meted out or to be meted out to the child, while

being in custody of his father or paternal grandparents.

16. This Court is further of the opinion that as long as the

natural guardian is surviving and there is nothing to pin-point any

deficit in the paramount welfare of the child, there is no reason

why the natural guardian, father, like in the present case, can be

denied the custody of his own child, particularly only on the count

that some apprehensions have been raised, that too, without any

substantial proof.

17. This Court finds that there is nothing on record to

indicate even a minor default, on the part of the father or the

paternal grandparents, towards the child, and therefore, there is

no reason to disbelieve that they shall be good guardians as well

as good custodians. Moreover, the learned court below has taken

care of the eventuality that in case the father remarries or any

such circumstances arise where the education, welfare and future

development of the child seems to be in jeopardy, the

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appellants/applicants shall always have liberty to move to the

court again seeking custody of the child in question.

18. In light of the aforesaid observations, no interference in

the impugned order passed by the learned court below is called

for.

19. Consequently, the present appeal is dismissed. Record

of the learned court below be sent back forthwith.

(DR.PUSHPENDRA SINGH BHATI),J (SANGEET LODHA),J

66-SKant/-

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