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Israr Ahmad vs Azazul Hussain Ahmad & Anr. on 20 December, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved

A.F.R.

Court No. – 3

Case :- FIRST APPEAL No. – 148 of 2018

Appellant :- Israr Ahmad

Respondent :- Azazul Hussain Ahmad Anr.

Counsel for Appellant :- Rajneesh Kumar Verma,Surendra Pratap Singh

Counsel for Respondent :- Ziauddin Khan

Hon’ble Anil Kumar,J.

Hon’ble Saurabh Lavania,J.

(As per Hon’ble Anil Kumar,J.)

Heard, Sri S.P.Singh, learned Counsel for the appellant and Ms. Archana Singh Advocate, holding brief of Sri Ziauddin Khan, learned Counsel for the respondent.

Facts in brief of the present case, as per record, are that marriage between appellant Israr Ahmad and Smt. Zaafrana was solemnized on 03.06.2006 as per Muslim rites and customs and out of the wedlock of appellant and Smt. Zaafrana and on 16.05.2007 one baby boy was born namely Azazul Hussain. Matrimonial relation between the appellant Israr Ahmad and Smt. Zaafrana became strained and on  26.04.2008 Smt. Zaafrana left her matrimonial home. In view of the said factual background, the appellant Israr Ahmad filed a case bearing Misc. Case No. 30 of 2010 ( Israr Ahmad Vs. Izazul Hussain) before the Principal Judge, Sitapur for custody of his minor child i.e. respondent no. 1-Azazul Hussain.

On 07.08.2018, Principal Judge, Family Court, Sitapur dismissed the case of the appellant for custody of minor child namely Azazul Hussain.

Challenging the judgment and order dated 07.08.2018, the present appeal has been filed.

Learned Counsel for the appellant submits that the matter pertains to the Mohammadan Law and the question of guardianship was to be considered by the Principal Judge, Family Court in the light of the Mohammadan Law, in which it has been provided that in respect of custody of a male child the father is entitled to its custody after the male child attains the age of seven years and the mother has no right and authority to retain custody of a male child after it attains the age of seven years. Learned Counsel for the appellant further submits that plaintiff-appellant has specifically pleaded and led evidence to the effect that the future of defendant-respondent no. 1 under the guardianship of defendant-respondent no. 2 is in dark as she is unable to give proper eduction. This fact remained uncontroverted and it amounts to admission by the defendant-respondent no. 2, but the learned Principal Judge, Family Court, Sitapur has failed to consider the undertaking, the fact and the evidence led by the plaintiff-appellant and recorded a perverse finding to the effect that welfare of defendant-respondent no. 1 is with defendant-respondent no. 2.

Learned Counsel for the appellant further submits that the judgments which have been cited in the order impugned are not related with the Muslim law and have been misinterpreted while specific undertaking was given by the plaintiff-appellant before the Court that he will look after the defendant-respondent no. 1 and provide good education and facilities to defendant-respondent no. 1.

Learned Counsel for the appellant further submits that the impugned judgment and order dated 07.08.2018 has been passed ex-parte and as such, the fact which was pleaded by the plaintiff-appellant and the evidence which was led by the plaintiff-appellant amounted to admission and, as such, on the basis of the uncontroverted fact and evidence, learned Principal Judge, Family Court, Lucknow ought not to have dismissed the application filed by the appellant, rather the same was liable to be allowed.

In rebuttal, Ms. Archana Singh Advocate, holding brief of Sri Ziauddin Khan, learned Counsel for the respondent submits that there is no illegality or infirmity in the impugned order dated 07.08.2018 passed by the Principal Judge, Family Court, Sitapur and in its order the learned court below has specifically mentioned that divorce/talak has already been taken place between the appellant Israr Ahmad and Smt. Zaafrana on 06.07.2013 and since 2008, when the respondent no. 1 was born, he is living with his mother Smt. Zaafrana and at the time of passing of the order dated 07.08.2018, he was 10 years old and her mother is giving proper care and education, therefore, the present appeal is liable to be dismissed.

We have considered the submissions of learned Counsel for the parties and perused the records.  Point for consideration in the present appeal is “whether learned court below rightly held that father/appellant is not entitled to the custody of the minor/ respondent no. 1 i.e. Master Azazul Hussain.

In order to decide the controversy in the present case, we feel it appropriate to take note of the relevant portion of Chapter XVIII of Guardianswhip of Person and Property, page 445 of Mulla Principals of Mahomedan Law, which reads as under:-

Para 351. Matter to be considered by the court in appointing guardian :-

(1) in appointment or declaring the guardian of the minor, the court shall, subject to the provision 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 to kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relation of the proposed guardian with the minor of his property.

(3) if the minor is old enough to from an intelligent preference, the court may be consider that preference.

It is true that the father is not proved to have lost the right to being appointed as the guardian of the minor. He has no defect and he being the natural guardian of the minor could be appointed provided it was the interest of the minor . Minor can not be forced to live with the father because that may cause psychological deterioration to the minor and may eventually affect his health also because of at this age he needs love and affection. He being of the age of seven cannot show his preference as to with whom he wants to live. If he is give affection and love which he need at this age by the respondent or the appellant No.1, then he should be permitted to have the affection and love of any one of them. For that purpose it is necessary to ascertain the wishes of the minor.

If the minor is capable of making the preference, he should be brought to the court and thereafter order of appointment of guardian should be made.

Welfare of the minor – the above section is a reproduction in terms of s. 17 clauses(1),(2) and (3), of the Guardian and Ward Act. It impose a duty upon the court in appointment a guardian to make the appointment consistently with the law to which the minor is subject. The central idea is the welfare of the minor, and the Allahabad and JK High Courts have said that though the rules of the mahomedan law have to taken into consideration the main question to be considered is what would be conducive to the child’s welfare. In a Randoon case, the mother has lost her right under Mahomedan law as she has been divorced and had remarried a Buddhist. She was nevertheless appointed guardian, as the court considered that the interest of the minor would be best promoted by leaving with the mother. The mother would be the proper guardian for children of tender years, even though she lived separate from her husband owing to disputes over property, provided that she had not been guilty of misconduct.

Under the Muslim Personal Law, the mother is entitled to the custody (Hizanat) of her male child until he has competed the age of seven years and the female child until she has attained puberty. Puberty is attained at the age of 14 or 15 years.

Another principle of law which is too well established is that, in a proceeding for appointment of guardian, it is not the guardianship of the minor which is important, but it is the welfare of the minor that has to be taken into consideration. If there is no conflict between the personal law to which the minor is subject and the consideration of the minor’s welfare, the latter must prevail.

In appointing the respondent grandmother as the guardian of the minor children, the court below was not guided by what in the circumstance was conducive to the welfare of the minor and this order, therefore, cannot be upheld. The mother’s application has to be allowed and the mother be appointed as guardian. Nigher the mother nor the grandmother can be the guardian of the property of the minors.

Hon’ble the Apex Court in the case of Athar Husain vs. Syed Siraj Ahmed and others, (2010) 2 SCC 654 held as under:-

“25. In case of custody of the minor children, the family law i.e. the Mohammedan Law would apply in place of the Act. Considering the provisions under Section 353 of the Mohammedan Law, the High Court had held that the preferential rights regarding the custody of the minor children rest with the maternal grandparents. After making a doubtful proposition that in case of a conflict between personal law and the welfare of the children the former shall prevail, the High Court held that in the case at hand there is no such conflict. For the reasons aforementioned, the High Court by its impugned order set aside the order of the Family Court, Bangalore which vacated the interim order of injunction issued against the appellant. It is this order of the High Court, which is challenged before us by way of a special leave petition Hon’ble the Apex Court in the case of Athar Husain vs. Syed Siraj Ahmed and others, (2010) 2 SCC 654 held as under which on grant of leave has been heard by us in the presence of the learned counsel appearing on behalf of the parties.

26. It was the contention of the appellant before us that the Act will apply to the present case because there is a conflict between the preferential guardian in the Mohammedan Law and the Act. It was pointed out that while deciding the custody of the minor children, the welfare of the children had to be taken into consideration and that it was guaranteed by the Act. They have placed their reliance on Rafiq v. Bashiran [AIR 1963 Raj 239] . The Rajasthan High Court in the cited case held that where the provisions of the personal law are in conflict with the provisions of the Guardians and Wards Act, 1890 the latter shall prevail over the former.

27. Relying on Brijendra Narayan Ganguly v. Chinta Haran Sarkar [AIR 1961 MP 173] , it was contended by the learned counsel for the appellant that there is a presumption that parents will be able to exercise good care in the welfare of their children.

28. It was argued by the learned counsel on behalf of respondents that the impugned order warrants no interference. Before passing the impugned order, the learned Judge had spent over one hour with the children to ascertain their preferences. The children have been living with the respondents since their mother’s death in June 2006 as the High Court had stayed the order of the Family Court vacating the injunction order. While the respondents had been complying with the visitation rights granted to the appellant, the children were not happy with the treatment meted out to them during the time they spent with their father and stepmother. In contrast, Respondent 3, contrary to the apprehensions expressed by the appellant has stated on record that she had no intention to marry and would devote her life towards the welfare of the children. The respondents further asserted that the cases of Rafiq v. Bashiran [AIR 1963 Raj 239] and B.N. Ganguly [AIR 1961 MP 173] are not applicable to the facts of this case.

29. We have heard the learned counsel for both the parties and examined the impugned order of the High Court and also the orders passed by the Family Court. After considering the materials on record and the impugned order, we are of the view that at this stage the respondents should be given interim custody of the minor children till the disposal of the proceedings filed under Sections 7, 9 and 17 of the Act.

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 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.

35. Keeping in mind the paramount consideration of the welfare of the children, we are not inclined to disturb their custody which currently rests with their maternal relatives as the scope of this order is limited to determining with which of the contesting parties the minors should stay till the disposal of the application for guardianship.

36. The appellant placed reliance on R.V. Srinath Prasad v. Nandamuri Jayakrishna [(2001) 4 SCC 71 : AIR 2001 SC 1056] . This Court had observed in this decision that custody orders by their nature can never be final; however, before a change is made it must be proved to be in the paramount interest of the children. In that decision, while granting interim custody to the father as against the maternal grandparents, this Court held: (SCC pp. 76-77, para 10)

“10. … The Division Bench appears to have lost sight of the factual position that at the time of death of their mother the children were left in custody of their paternal grandparents with whom their father is staying and the attempt of Respondent 1 was to alter that position before the application filed by them is considered by the Family Court. For this purpose it was very relevant to consider whether leaving the minor children in custody of their father till the Family Court decides the matter would be so detrimental to the interest of the minors that their custody should be changed forthwith. The observations that the father is facing a criminal case, that he mostly resides in USA and that it is alleged that he is having an affair with another lady are, in our view, not sufficient to come to the conclusion that custody of the minors should be changed immediately.”

(emphasis supplied)

What is important for us to note from these observations is that the court shall determine whether, in proceedings relating to interim custody, there are sufficient and compelling reasons to persuade the court to change the custody of the minor children with immediate effect.

37. Stability and consistency in the affairs and routines of children is also an important consideration as was held by this Court in another decision cited by the learned counsel for the appellant in Mausami Moitra Ganguli v. Jayant Ganguli [(2008) 7 SCC 673 : AIR 2008 SC 2262] . This Court held: (SCC pp. 679-80, para 24)

“24. … We are convinced that the dislocation of Satyajeet, at this stage, from Allahabad, where he has grown up in sufficiently good surroundings, would not only impede his schooling, it may also cause emotional strain and depression to him.”

After taking note of the marked reluctance on the part of the boy to live with his mother, the Court further observed: (Mausami Moitra case [(2008) 7 SCC 673 : AIR 2008 SC 2262] , SCC p. 680, para 26)

“26. Under these circumstances and bearing in mind the paramount consideration of the welfare of the child, we are convinced that the child’s interest and welfare will be best served if he continues to be in the custody of the father. In our opinion, for the present, it is not desirable to disturb the custody of Master Satyajeet and, therefore, the order of the High Court giving his exclusive custody to the father with visitation rights to the mother deserves to be maintained.”

(emphasis supplied)

38. The children have been in the lawful custody of the respondents from October 2007. In Gaurav Nagpal v. Sumedha Nagpal [(2009) 1 SCC 42] , it was argued before this Court by the father of the minor child that the child had been in his custody for a long time and that a sudden change in custody would traumatise the child. This Court did not find favour with this argument. This Court observed that the father of the minor child who retained the custody of the child with him by flouting court orders, even leading to institution of contempt proceedings against him, could not be allowed to take advantage of his own wrong. The case before us stands on a different footing. The custody of the minor children with the respondents is lawful and has the sanction of the order of the High Court granting interim custody of the children in their favour. Hence, the consideration that the custody of the children should not undergo an immediate change prevails.

39. The question with whom they remained during the period from the death of their mother till the institution of present proceedings is a matter of dispute between the parties and we are not in a position to reach a conclusion on the same without going into the merits of the matter. At any rate, the children are happy and are presumably taken care of with love and affection by the respondents, judging from the reluctance on the part of the girl child to go with her father. She might attain puberty at any time. As the High Court has rightly observed, it may not be in the interests of the children to separate them from each other. Hence, at this juncture, we are not inclined to disturb the status quo, as we are only concerned with the question of interim custody at this stage.

40. The learned counsel for the appellant has placed reliance on Rafiq v. Bashiran [AIR 1963 Raj 239] . In that case, the High Court had set aside the order of the Civil Judge granting the custody of the child to her mother’s paternal aunt, while the father was not proven to be unfit. Quoting from Tyabji’s Mahomedan Law, 3rd Edn., Section 236 (p. 275) the Court observed:

“The following persons have a preferential right over the father to the custody of (sic) minor girl before she attains the age of puberty:

1. Mother’s mother.

2. Father’s mother.

3. Mother’s grandmother, howsoever high.

4. Father’s grandmother, howsoever high.

5. Full sister.

6. Uterine sister.

7. Daughter of full sister, howsoever low.

8. Daughter of uterine sister, howsoever low.

9. Full maternal aunt, howsoever high.

10. Uterine maternal aunt, howsoever high.

11. Full paternal aunt, howsoever high.”

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.

42. In our opinion, as far as the question of custody is concerned, in the light of the aforementioned decisions, the personal law governing the minor girl dictates her maternal relatives, especially her maternal aunt, shall be given preference. To the extent that we are concerned with the question of interim custody, we see no reason to override this rule of Mohammedan Law and, hence, a prima facie case is found in favour of the respondents. Further, the balance of convenience lies in favour of granting the custody to the maternal grandfather, aunt and uncle.

43. A plethora of decisions of this Court endorse the proposition that in matters of custody of children, their welfare shall be the focal point. Once we shift the focus from the rights of the contesting relatives to the welfare of the minor children, the considerations in determining the question of balance of convenience also differ. We take note of the fact that Respondent 3, on record, has stated that she has no intention to get married and her plea that she had resigned from her job as a technical writer to take care of the children remains uncontroverted. We are, hence, convinced that the respondents will be in a position to provide sufficient love and care for the children until the disposal of the guardianship application.

44. The second marriage of the appellant, though a factor that cannot disentitle him to the custody of the children, yet is an important factor to be taken into account. It may not be appropriate on our part to place the children in a predicament where they have to adjust with their stepmother, with whom admittedly they had not spent much time as the marriage took place only in March 2007, when the ultimate outcome of the guardianship proceedings is still uncertain.

45. The learned counsel for the appellant placed reliance on Bal Krishna Pandey v. Sanjeev Bajpayee [AIR 2004 Utt 1] wherein the maternal grandfather of the minor contested with the father of the minor for custody of a girl aged about 12 years. The Uttaranchal High Court in that case gave the custody of minor to the father rejecting the contention of the grandfather (the appellant) that the father (the respondent) after his remarriage will not be in a position to give fair treatment to the minor. However, in that case, the second wife of the father had been medically proven as unable to conceive. Hence, the question of a possible conflict between her affection for the children whose custody was in dispute and the children she might bear from the father did not arise. In the case before us, the situation is not the same and the possibility of such conflict does have a bearing upon the welfare of the children.

46. As this is a matter of interim custody till the final disposal of the application GWC No. 64 of 2007, we are of the opinion that the interests of the children will be duly served if their current residence is not disturbed and a sudden separation from their maternal relatives does not come in their way. Irreparable injury will be caused to the children if they, against their will, are uprooted from their present settings.

47. The learned counsel for the appellant placed strong reliance on Hassan Bhat v. Ghulam Mohamad Bhat [AIR 1961 JK 5] which held that the words “subject to the provisions of this section” in sub-section 1 of Section 17 of the Act clearly indicates that the consideration of the welfare of the minor should be the paramount factor and cannot be subordinated to the personal law of the minor. The view expressed by the High Court is clearly correct. As far as the question of interim custody is concerned, we are of the view that there is no conflict between the welfare of the children and the course of action suggested by the personal law to which they are subject.

49. According to the appellant, from the fact that the respondents raised the issue of death of his wife ten months after her death and one month after he refused the marriage offer of Respondent 3, it must be inferred that the respondents have raised this issue merely to obtain the custody of children and that the respondents did not come to Court with clean hands. As far as the question of denying the respondents the interim custody of children on the ground that they had not approached the Court with clean hands, we are constrained to say that we are not in a position to conclusively infer the same. The alleged refusal on part of the appellant to marry Respondent 3 which is said to have led the respondents to file the application for guardianship, is again a question of fact which is yet to be proved.

50. In Nil Ratan Kundu v. Abhijit Kundu [(2008) 9 SCC 413] this Court had enumerated certain principles while determining the custody of a minor child. This Court in para 52 observed: (SCC p. 428)

“52. … A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child.”

Thus the strict parameters governing an interim injunction do not have full play in matters of custody.”

Hon’ble the Apex Court in the case of Anjali Kapoor (SMT) vs. Rajiv Bailaj, (2009) 7 SCC 322 held as under:-

“15. Under the Guardians and Wards Act, 1890, the father is the guardian of the minor child until he is found unfit to be the guardian of the minor female child. In deciding such questions, the welfare of the minor child is the paramount consideration and such a question cannot be decided merely based upon the rights of the parties under the law. [See Sumedha Nagpal v. State of Delhi [(2000) 9 SCC 745 : 2001 SCC (Cri) 698] (SCC p. 747, paras 2 5).]

16. In Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840] this Court has observed that: (SCC p. 847, para 7)

“7. … the principle on which the court should decide the fitness of the guardian mainly depends on two factors: (i) the father’s fitness or otherwise to be the guardian, and (ii) the interests of the minors.”

This Court considering the welfare of the child also stated that: (SCC p. 855, para 15)

“15. … The children are not mere chattels: nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society….”

17. In Elizabeth Dinshaw v. Arvand M. Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Cri) 13 : AIR 1987 SC 3] this Court has observed that whenever a question arises before court pertaining to the custody of the minor child, the matter is to be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the child.

18. At this stage, it may be useful to refer to the decision of the Madras High Court, to which reference is made by the High Court in the case of Muthuswami Moopanar [Muthuswami Chettiar v. K.M. Chinna Muthuswami Moopanar, AIR 1935 Mad 195] wherein the Court has observed, that, if a minor has for many years from a tender age lived with grandparents or near relatives and has been well cared for and during that time the minor’s father has shown a lack of interest in the minor, these are circumstances of very great importance, having bearing upon the question of the interest and welfare of the minor and on the bona fides of the petition by the father for their custody. In our view, the observations made by the Madras High Court cannot be taken exception to by us. In fact those observations are tailor-made to the facts pleaded by the appellant in this case. We respectfully agree with the view expressed by the learned Judges in the aforesaid decision.

19. In McGrath (infants), Re [(1893) 1 Ch 143 : 62 LJ Ch 208 (CA)] it was observed that: (Ch p. 148)

“… The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.”

20. In American Jurisprudence, 2nd Edn., Vol. 39, it is stated that:

“… An application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the court may properly consult the child, if it has sufficient judgment.”

21. In Walker v. Walker Harrison [1981 New Ze Recent Law 257] the New Zealand Court (cited by British Law Commission, Working Paper No. 96) stated that:

“Welfare is an all-encompassing word. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child’s own character, personality and talents.”

This High Court in the case of Smt. Nazma vs. Abdual Wahab (2012) 91 ALR 815 held as under:-

“13. In Immambandi v. Mutsaddi, (1917-1918) 45 IA 73 their Lordships of the privy council said “It is perfectly clear that under the Mohamedan law the mother is entitled only to the custody of the person of her minor child upto a certain age according to the sex of the child. But she is not the natural guardian; the father alone, or, if he be dead, his executor (under the Sunni Law) is the legal guardian.” It would thus appear that father is the primary and the natural guardian of his minor child and that the right of the custody of mother is only upto a certain age of the minor i.e. 7 years in the case of male child and till the attainment of puberty in the case of female child.

14. In Mt. Ulfat Bibi v. Bafati, AIR 1927 Alld. 581 a division Bench of this court laid down that under the Mohamedan law father is the natural guardian of his minor boy but side by side with the right of the father as lawful guardian exists the recognized right of the mother to have the custody of the child upto the age of seven years. Thus, the right of the mother to have custody of her minor son is limited upto 7 years of his age under the Mohamedan law.

15. In case at hand, the minor is a male child aged above 7 years and therefore, as per the Mohamedan law the father is the natural guardian and is entitled to his custody.

16. The court below in view of the compromise dated 16.10.09 allegedly between the appellant and the respondent accepted the version of the respondent that there is a divorce between the two.

17. The court below further found that the name of the appellant appears in the family register as the wife of one Mehboob and on its basis inferred that the appellant has remarried.

18. The aforesaid findings are not acceptable to the appellant but in the absence of any positive evidence to prove otherwise, this court is at a loss to interfere with the same.

19. In view of the aforesaid facts and circumstances, under the Muslim law, the father being the natural guardian is entitled to the custody of the minor in question and the mother stand ousted from getting the custody particularly in view of her remarriage. However, the personal law of the parties is merely a guiding factor in deciding the custody of the minor as is evident from the plain reading of Section 17 of the Act as well as Section 351 of the principles of Mohamedan law.

20. Section 7 read with Section 17 of the Act mandates the court to consider the welfare of the minor and to be guided by the law to which the minor is subject in appointing a guardian of a minor. The Supreme Court in JT 1993 (1) SC 229 Ms. Chandra Lekha v. Capt. Vipul Menor has laid down that the question regarding custody of minor cannot be decided on the basis of the legal rights of the parties but on the sole and pre-dominant criteria of what would best serve the interest and welfare of the minor.

21. In Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544 : AIR 1982 SC 1276, the Apex Court laid down that the principle of law in relation to the custody of a minor is well established and well settled and that the matter has to be considered and decided from the point of view of the welfare and interest of the child and it is the duty of the court to protect the interest of the minor.

22. Similarly in Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 : AIR 1987 SC 3 it was held that in deciding about the custody of the minor, interest and welfare of the minor is the predominant criteria and legal rights of the parties may not come in way.

23. In M.K. Hari Govindan v. A.R. Rajaram, AIR 2003 Madras 315 the dispute was regarding the custody of a female child aged about 10 years between the maternal and parental grandfathers, both the parents of the child having died in an accident, the child having expressed willingness to live with the respondent with whom she had been living since 1998, the court in view of willingness expressed by the child and the fact of her living with the respondent for over 4 years held that the interest and welfare of the minor child would be with the respondent and it is not proper to change the custody of the child.

24. In Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840 : AIR 1973 SC 2090 there lordships of the Supreme Court observed that where there is dispute between mother and father regarding custody of a minor the court is expected to strike a just and proper balance between requirement of the welfare of the minor and rights of the parents over the minor child. In striking such a balance it may be kept in mind that there is really no substitute for the mother’s love, affection and care for her infant which the infant is most unlikely to get if its custody is entrusted to the father and therefore, in such cases the court should lean in favour of the mother in matter of custody of the minor rather than in favour of the father. The controlling factor is the welfare of the child and not the right of the parents.

25. In view of the above the personal laws of the parties or the legal rights are only a guiding factor for determination of the custody of a minor but such rights would not prevail over the interest and welfare of the minor which is the primary and the predominant criteria for deciding about the person with whom the custody of the minor would lie.

26. The legal position which emerges from the above discussion can be summarized as under:–

(i) In Muslim law father is the primary and the natural legal guardian of his minor child though mother is entitled to custody upto certain age and her right to custody is not affected even if she is divorced but comes to an end on her remarriage;

(ii) The welfare and the interest of the minor is the predominant criteria in deciding about the custody of the child;

(iii) The personal rights of the parents are only the guiding factors and would not override the interest and welfare of the minor;

(iv) The personal wishes of the child of an understandable age carries weight; and

(v) The courts should avoid and be slow in disturbing the prevailing system in striking the balance between the interest of the minor vis-avis the rights of the parties/parents.

27. In the instant case, the minor who is now aged about 10 years ever since his birth is living with her mother who is taking good care of him though father may take still better care, coupled with the fact that he has appeared before the court and has clearly expressed his willingness to live her mother, I am of the view that the interest and welfare of the child is with the mother.

28. In such circumstances when the interest and welfare of the minor is with the mother the personal rights under the Muslim law which are only the guiding factors in the matter of custody of a minor would not override the interest of the minor.

29. The court below as such committed an error in allowing the application and granting custody of the minor to the father primarily in view of the legal right of the father under the Muslim law. The court in passing the impugned order completely ignored the wishes of the child, his long stay with the mother and his welfare and at the same time was swayed away by the legal rights of the parties. Such an approach on part of the court below cannot be approved of and is rather strange and against the settled principle.”

Kerala High Court in the case of smt. Nazma vs. Abdual Wahab (AIR 2005 Ker 68) held as under:-

“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 abovementioned provisions would give way to the provisions of the Guardians 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 remarried 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 abovementioned 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. Shyam Sunder Agarwalla, (2000) 6 SCC 598: (AIR 2000 SC 2172) and R.V. Srinath Prasad v. Nandamuri Jayakrishna, 2001 (4) SCC 71: (AIR 2001 SC 1056). 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 hereinbefore cannot read in isolation and be divorced under the provisions of the Guardians and Wards Act. The overriding consideration is welfare of the child and the Personal Law would yield the provisions of the Guardians 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 All 29); Mohammed Yunus v. Smt. Shamshad Bano (AIR 1985 All 217); Zynab Bi alias Bibijan v. Mohammad Ghouse Mohideen AIR 1952 Mad 284); Baby Sarojam v. S. Vijayakrishnan Nair (AIR 1992 Ker 277); Yusuf v. Sakkeena (1998 (2) Ker LT 573); Merlin Thomas v. C.S. Thomas, (2003) 1 Ker LJ 633: (AIR 2003 Ker 232) and Chakki v. Ayyappan (1988 (1) Ker LT 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 1½ 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 Court for visitorial rights.”

Andra Pradesh High Court in the case of Mohammed Jameel Ahmed Ansari v. Ishath Sanjeeda and others. (AIR 1983 AP 106 ) held as under:-

“11. In the face of the evidence the question is what is the approach of the Court? This aspect was considered by this court in the decisions collected is L. Chandran v. Mrs. Venkatalakshmi, 1980 (2) APLJ 310 : (AIR 1981 Andh Pra 1). The old cases are collected in Reginald Danieal v. Sarojam, AIR 1969 Mad 365 where it is observed that only if the father is unfit to be the guardian, can the question of the welfare of the child come into consideration by the Courts. It is observed, “in the first class of cases, it must be established that any act or conduct of the husband or father renders him unfit for guardianship; the fact that the child may be happier and more comfortable with other relations is not sufficient to deprive the two relations referred to of their right and duty. The same sanctity does not attach to the rights claimed by the other relations.”

In Atchayya v. Kosaraju Narahari, AIR 1929 Mad 81 on the same aspect, it is observed:

“When the guardian of the person of a ward applied for the custody of the ward, he is only seeking the Court to help him to discharge the duty cast on him by law, with reference to his ward and it is for those who oppose such an application to make out that the welfare of the ward will be better served by its being kept out of the custody of its guardian and retained in the custody of the person against whom the application is made, the father has, therefore, a paramount right to the custody of his children of which he cannot be deprived unless it is clearly shown that he is unfit to be their guardian.”

The cases of the court in M. Basavalingam v. Swarajayalakshmi, AIR 1957 Andh Pra 704; Narasima Rao v. Manikyamma, (1968) 1 Andh LT 132; V.V.N. Narasaiah v. Ch. Peddi Raju (AIR 1971 Andh Pra 134) were referred in case (AIR 1981 Andh Pra 1) and it is held:

“……… We do not therefore consider that it would be in the interests of the minor child to be handed over from the care and custody of the active and loving maternal grand-mother to the passive and silent paternal parents. We have seen the child in this Court. It looks not only very healthy but also very happy with its maternal grand-mother. The maternal grand-mother appears to us to be rearing up the child for all these months with great love and affection.”

It is in this regard the case in Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor, (1982) 1 APLJ 19 (SC) : (AIR 1982 SC 792) and the observations made therein and in regard to a Parsi family in the case of Thirty Hoshie Dolikuka v. Hosmiam Shavaksha Dolikuka, AIR 1982 SC 1276 were cited.

12. The observations in case (AIR 1981 Andh Pra 1) were heavily relied on by the learned counsel for the maternal grand-parents to contend that if father has the right, the Court can ignore the rights of the father and hold the interests of the minor are better served, if the child is allowed to remain in the custody of the maternal grand-parents.

13. We have understood the law on this aspect to be in the following terms: That children are normally expected in the custody of the legal guardians. Under Muslim law, after the age of 7 years, it is the father who is entitled to the custody of the child, unless the Court holds on evidence, the father is not a fit person or that it is not conducive to the health whether physical or mental of the child. Ordinarily, the children are to be with the father.

14. In the instant case, it is the father who is seeking the child. The child is above seven years. The trial court in the instant case, has not recorded a finding that the father is not a fit person or that it is not conducive for the child to remain with the father. The learned single Judge observed for eleven years, the child was not taken care of, cannot be sustained for the reason that till the child attained seven years, the child was to remain with the mother because she was the legal guardian. Even in the ”Khula’ agreement, it was understood between the parties, if for some reason, within the ”Sharai’ period, she was to deliver the child, the father was willing to take the child. When he was married, he informed his second wife that it was her duty to maintain the child. The second wife agreed. She was willing. She swore to that fact in the box. The father made attempts sent has friends, his brother-in-law, his sister, his father to see the child. All of them in the evidence state, they were not received; they were not allowed inside the house to see the child. The contention that he has not maintained the child properly or that has not cared to maintain the child is unsustainable for it was agreed, till the child attains seven years of age, the mother will not claim any maintenance. In 1973, the father sent money; that was refused. His friends informed him that the grand-parents communicated them, he may treat for intents, the son does not exist for him. There is no credible evidence to hold, if the child is entrusted to his custody, he is likely to hand over the child to his elder sister. The grandparents from the paternal side, both, are anxious to have the child. In the face of this evidence, when the father is not stated as not a fit person, what is the course to be adopted? The learned single Judge had not adverted to evidence: did not hold the father is not a fit person. We have considered the evidence to see whether anything was suggested to show the father was not a fit person. It is seen, he is a practising Advocate. His parents are living with him at Hyderabad since 1975 and they are willing to have the custody of the child. Whether in the counter or in reply notice on May 29, 1973 or On June 24, 1973 nothing is stated as to the fact that the father is not a fit person. In the face of such a record, we are unable to hold, the welfare of the child is not served better if the child is entrusted to the father. The courts will have to give proper regard to the circumstances that he is willing to take the child. He has examined his second wife; he has examined his parents who are willing to take the child. There is thus nothing to hold the father is not a fit person or it is not conducive to the safety and health of the child to entrust the child.

15. In the decision in Audiappa v. Nalledran AIR 1916 Mad 605, the following observations are apposite:

“The fact that the father has married a second wife is not a sufficient ground for holding that he is unfit to be the guardian of his children. The learned vakil for the appellant relies on Bindo v. Shamlal, (1907) ILR 29 All 210 which seems to lay down that if the father marries again, he ought to be deprived of his legal right of guardianship. The learned Judges refer only to S. 17 and say that the welfare of the girls is the primary consideration. There is no doubt that would be the consideration which would influence the Court ultimately; at the same time, it ought not to be forgotten that the legislature advisedly draws a distinction between the legal rights of husband and parents on the one side and those of her near relations on the other. In the first class of cases, it must be established that any act or conduct of the husband or father renders him unfit for guardianship the fact that the child may be happier and more comfortable with other relations is not sufficient to deprive the two relations referred to of their right and duty the same sanctity does not attach to the rights claimed by the other relations…..”

Bombay High Court in the case of Abdulsattar Husen Kudachikar v. Shahina Abdulsattar Kudachikar (AIR 1996 Bom 134) held as under:-

“7. On this evidence on record, the learned trial Judge has come to the conclusion that the respondent mother was entitled to the custody of the son and accordingly, the respondent’s application for custody of her son was allowed on September 20, 1994, which order has been challenged before me.

8. I have heard both the learned Counsel — Mr. Sawant for the appellant-father and Mr. Ingale for the respondent-mother. I have perused the entire record that was placed before me; the pleadings and the entire evidence has been perused by me. The only point which arises for my consideration is, who is entitled to the custody of the son Mohd. Wasim, who is aged 5 years? My answer to this point is that it is the respondent-mother, who is entitled to the custody of her son. The reasons are as follows.

9. There is no dispute that in accordance with the principles of Mohammedan Law, which is the law applicable to the parties, it is the mother who is entitled to the custody of a male child until he has completed the age of 7 years or of a female child until she attains puberty. This right continues though she is divorced by the father of the child, unless she married a second husband, in which case the custody belongs to the father. If we refer to “Mulla’s Principles of Mohammedan Law”, 19th Edition, in Chapter XVIII under the Heading (B) Guardians of the Person of a Minor, Para 352 at page 287 reads as under:–

“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 married a second husband in which case the custody belongs to the father (f)”.

I need not elaborate the Case Law on this point, because this position was not disputed before me.

10. Admittedly, Mohd. Wasim is aged 5 years. The respondent-mother is, therefore, the guardian of her son as at this moment. The respondent is employed and earning more than Rs. 3000/- per month. She is staying with her father at Sangli and has been able to look after her daughter Heena Kausar, aged 4 years. Her evidence shows that she has all the concern for her children. There is no allegation that the respondent is likely to remarry or is indulging in any affair with any one which would result in her neglecting her children. On the other hand, it is clear from the evidence on record that the appellant was having an affair with Noorjehan Tahasildar and it is admitted before me now that he has married her. The appellant is a Medical Representative and by the very nature of his job he is required to tour not only in and around Miraj Town but also Sangli District. It is true that he is drawing a higher salary than that of the respondent inasmuch as he is drawing Rs. 4500/- per month as against Rs. 3000/- drawn by the respondent. But for children of tender years, it is not money alone which matters. It is the natural love and affection and particularly, the care which the mother can take which is more important and which has no substitute.

11. It is well-settled that in proceedings under the Guardians and Wards Act, 1890, what is of paramount consideration is the welfare of the child. Section 4 of the Guardians and Wards Act, 1890 is the defining section. It defines words such as “Minor”, “Guardian”, “Ward” etc. “Minor” is defined to be a person who, under the provisions of the Indian Majority Act, 1875 is to be deemed not to have attained his majority. “Guardian” means a person having the care of the person of a minor or of his property or of both his person and property. “Ward” means a minor for whose person or property or both there is a guardian. Section 7 provides that 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 of his property or both;

(b) declaring a person to be such guardian,

The Court may make the order accordingly.

12. Section 8 deals with the persons, who are entitled to apply for an Order under Section 7. Section 17 is of some importance, and it reads as under:–

“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 provision 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 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.”

Similarly, Section 25 reads as under:–

“25. Title of guardian to custody of ward. — (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.

(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by Section 100 of the Code of Criminal Procedure, 1882 (10 of 1882).

(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship”.

13. On a true construction of the provisions of Section 17 and Section 25, there can be no doubt that in appointing or declaring a guardian of a minor, the court must have regard to the welfare of a minor which is of paramount consideration. Taking into account all the relevant facts such as age, sex, religion, character and capacity of the proposed guardian, nearness of kin to the minor, the paramount consideration is the welfare of a minor. It is for deciding this paramount consideration of the welfare of a minor that all other factors must be taken into account. In this behalf, a reference may be made to some of the decisions of the Supreme Court briefly:–

(i) In Rosy Jacob v. Jacob A. Chakramakkal, reported in (1973) 1 SCC 840 : AIR 1973 SC 2090, it has been observed that whether the proceedings were under one Act or the other viz. the Guardians and Wards Act or the Indian Divorce Act (which was relevant in that case), what was of paramount consideration was the question of welfare of the minor. It may be useful to reproduce the observations in Para 14 of the Supreme Court decision at pages 2098 and 2099:–

“In our opinion, Section 25 of the Guardians and Wards Act contemplates not only actual physical custody but also constructive custody of the guardian which term includes all categories of guardians. The object and purpose of this provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardian to properly look after the ward’s health, maintenance and education, this section demands reasonably liberal interpretation so as to effectuate that object. Hypertechnicalities should not be allowed to deprive the guardian of the necessary assistance from the Court in effectively discharging his duties and obligations towards his ward so as to promote the latter’s welfare. If the Court under the Divorce Act cannot make any order with respect to the custody of Ajit alias Andrew and Maya alias Mary and it is not open to the Court under the Guardians and Wards Act to appoint or declare guardian of the person of his children under Section 19 during his lifetime, if the Court does not consider him unfit, then, the only provision to which the father can have resort for his children’s custody is Section 25…………………………… But whether the respondent’s prayer for custody of the minor children be considered under the Guardians and Wards Act or under the Indian Divorce Act, as observed by Maharajan J., with which observation we entirely agree, “the controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents”. It was not disputed that under the Indian Divorce Act this is the controlling consideration. The Court’s power under Section 25 of the Guardians and Wards Act is also, in our opinion, to be governed primarily by the consideration of the welfare of the minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom — if ever — identical”.

(ii) In Smt. Mohini v. Virendra Kumar, reported at (1977) 3 SCC 513 : AIR 1977 SC 1359, which was the case under the Hindu Minority and Guardianship Act, 1956, it was again reiterated by the Supreme Court that the welfare of a minor was the paramount consideration. Considering all the facts of the case, it was found that the minor’s welfare was financially and affectionately safer in the hands of the mother.

(iii) Again, in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, reported at (1982) 2 SCC 544 : AIR 1982 SC 1276, it was reiterated that any matter concerning the custody of a minor has to be considered and decided only from the point of view of the welfare and custody of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor’s interest. These observations are to be found in para 17 of the Judgment at page 1289 of the Report. In para 19 of the Judgment in Thrity Hoshie Dolikuka’s case, a reference has been made to Rosy Jacob’s case, reported at (1973) 1 SCC 840 : AIR 1973 SC 2090 (supra).

(iv) Then, in the case of Poonam Datta v. Krishanlal Datta, reported at 1989 Supp (1) SCC 587 : AIR 1989 SC 401, the Supreme Court decided the question of custody of the minor having regard to the consideration of welfare of the child and the parties were directed to consider the interests of the child as paramount and do nothing which would adversely affect the interest or affect the child physically or mentally in any manner.

(v) Recently, in the case of Chandrakala Menon (Mrs.) v. Vipin Menon (Capt.), reported at (1993) 2 SCC 6 the Supreme Court again reiterated that the custody of child has to be decided on the sole and predominant criterion as to what would serve best the interest of the minor. This has been categorically observed in Para 7 of the decision at Page 8 of the Report where in the facts of the case, the custody was given to the mother, who was residing abroad, though the father was residing in India.

14. Having regard to the above guidelines laid down by the Supreme Court, there is no doubt in my mind that in the facts of the present case the welfare of the child Mohd. Wasim is safer with the mother. The father has admitted that he married a second wife. He has a touring job. Leaving his only son from his first wife to the care of his second wife, in preference to the natural mother of the child, would not be in the best interest of the child. The child certainly needs the love and affection of his natural mother, who is anxious to bestow it upon her child. The child has been forcibly snatched from her on 22nd May, 1994, resulting in initiation of the proceedings soon thereafter on 13th June, 1994. Under the circumstances, no objection can be taken to the impugned decree passed by the trial Court.

15. Mr. Sawant, however, contended that in the event of this Court not accepting the father’s version, the father would, at least, be entitled to access to the child on week-ends and during vacations. The father is living at Miraj and the mother is at Sangli. I see no difficulty in permitting the father to meet the child on week-ends or during vacations. Both the spouses are available on phone in their respective offices. It would be in the interest of the child if the father informs the mother in advance and meets the child either at week-ends or during vacation. I am reminded of the caution sounded by the Supreme Court in Poonam Datta’s case, reported at 1989 Supp (1) SCC 587 : AIR 1989 SC 401 (supra). I can do no better than to reproduce Para 7 of the decision of the Supreme Court in that case at page 402 of the Report–

“7. Parties are directed to consider the interest of the child as paramount and do nothing which would be adverse to its interest or affect it physically or mentally in any manner”.

This Court in the case of Smt. Kahkashan Bano v. Abdul Moiz Ansari ((1990) 16 ALR 401) held as under:-

“15. This is also the settled law that the welfare of minor is to be the paramount consideration for the Court and not the legal right of either the appellant or the respondent. The interest of the minor is supreme.

16. In the case of Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor it has been held that in matters concerning the custody of minor children the paramount consideration is the welfare of the minor and not the legal right of this or that particular party.

17. In the case of Rosy Jacob v. Jacob A. Chaoramakkal it was held that the controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents. The dominant consideration in making orders under Section 25 of the Act is the welfare of the minor children. It has to be seen that who would be in a better position to be able to impart natural and selfless affection. Further in case of a conflict or dispute between the mother and the father about the custody of the minor the Court has to adopt a somewhat different but more pragmatic approach. No doubt the father may have a legal right to claim the custody of the child but at the same time fitness of father has to be considered, determined and weighed predominantly in terms of the welfare of the minor. If it is found that the father cannot promote the welfare equally or better than the mother, he cannot claim indefeasible right to such custody. Merely father’s fitness to maintain the minor cannot override considerations of the welfare of the minor. Statute has presumed that the father is generally in a better position to look-after the minor being the head of the family earning bread for it. In any case it has to be seen primarily the welfare of the minor while determining the question of his custody. But merely, because the father agrees to maintain the minor showing all affection would not necessarily lead to the conclusion that the welfare of the minor would be batter promoted by granting custody to him. The mother may be equally affectionate towards the minor. If she is possessed of requisite financial resources, she would be always in advantageous position of guaranteeing better health education and maintenance for the minor. A minor is not a mere chattel nor a play thing. A child has to grow up in a normal balanced manner. In the case of Subrabi v. D. Mahammed, it has been held that merely because the respondent (father) is better placed economically, the custody of the child cannot be denied to the petitioner (mother). Further merely that the mother is not financially solvent as the father custody of the child cannot be deprived of from its mother.

18. In the of Mohammed Khalid v. Smt. Seenat Parveen a similar view was taken. It is well established that in a proceeding under the Act for the custody of a minor it is the welfare in the widest sense of term that is to be considered, though the father as natural guardian may have a prima facie right to a minor’s custody. It can be negatived if minor’s welfare lies in keeping him in the custody of his mother. Merely because the father is the natural guardian under the personal law applicable to him, the custody of the minor cannot be entrusted to him having in mind overall consideration of his physical and material well being, education, up-bringing, happiness etc., the dominant consideration shall be the interest of the minor than the claims of the rival parties. Humanitarianism would also permit as the mother is the most competent and suitable person to protect the interest of the minor and safeguard his welfare. To the affection and love of a mother there is no substitute. Universal phenomenon and human approach have acknowledged that the mother’s affection for the child is unparalleled, it cannot be bartered away nor can be shared either by the father or by any-one.

19. The respondent divorced the appellant after consumating marriage for a very short span of time that is about 3 years. The minor born of this wedlock at the time of the divorce was only 1 1/2 years old. It is indisputable that a child of one year cannot remember the father. The appellant has reared the child for 7 years showerig all affections and protecting his welfare by imparting him better education and maintaining him to her utmost. Admittedly, the applicant is not economically week. She is a teacher in a school earning more than Rs. 1000/-. The respondent is a private practitioner. He may be having sufficient resources to maintain the child. The respondent has claimed that he is residing with his other family members which has been seriously challenged by the appellant. Rather the appellant staying with her mother, brother and other family members is not disputed. Even the child has admitted that he is residing with his mother who is staying with her brother and mother and other family members and such members of the family are showering affection and love on him. Another aspect of the case is that after divorcing the appellant the respondent married again. Such marriage went on the rocks-leaving the respondent alone. It has also to be considered that the respondent is still in the psalon of his life and may marry again much to the detriment of the minor. Human complexities and trivialities of the societies cannot be ignored. If the respondent marries again and have children from such wife, the affection and love to the minor would gradually diminish. Courts cannot keep a close eye to the vicissitudes of such a situation. Human frailties have been resulted in causing miseries to such minor.

20. In the case of Smt. Anjunnisa v. Mukhtar Amad it has been held that where a minor aged about 10-11 years is in the custody of his mother and has intelligently exercised his preference to continue to stay with her, his custody cannot be disturbed and come to his father though he is legal guardian of the minor in the personal law (Mohammadan Law). A mere claim to legal guardianship after such a situation will not stand on a higher footing than the claim of the real mother to continue to have custody of the minor who has remained in her custody since the birth of the child, Presently the minor Mohd. Shoeb Ansari from the time’ of his birth is residing with his mother. Merely because the respondent is legal guardian even then the child cannot be extracted from the custody of the appellant. In a proceeding under Section 25 it is too well established. It is not the guardianship of the minor which has to be taken into consideration. The minor was examined by this Court. He was found to be intelligent and smart. He preferred to stay with his mother. Defiantly he expressed not to live with his father. To the suggestion that in case he is directed to live with his father, the minor openly stated that he would run back to his mother. Merely because he was produced in court from the custody of the mother that will not cause dent the truthfulness of his statement. It is an innocent expression of a minor. It can also not be said that the child was tutored. He was asked questions by the court to which he replied. Further the minor never lived with the respondent who admittedly may not be alien to the minor but is certainly a stranger. It would take years for the child to grow affection for the respondent. It will certainly affect his natural growth Such an artificial exercise of showing affection by father would not inspire the minor howsoever genuine the affection may be, but to the child it would always be artificial. The over zealousness with which the affection would be shown would further retard the natural growth of the minor. The welfare of the child in any case would be with the mother.

21. In the case of Mt. Siddiqunisa Bibi v. Niza muddin Khan a Division Bench of this court headed by Hon. Sulaiman ACJ it was held that the necessary condition in the exercise of discretion under Section 25 is that the ward should have left or have been removed from the custody of the guardian of his person. If the ward has not left or has not been removed from such custody. Section 25 does not apply. The minor since the time of his birth is staying with his mother and has neither been removed nor was ever residing with his father (respondent).

22. In the case of Mt. Haliman Khatoon v. Ahmadi Begum it has been held that the mother imparts natural affection. Her natural affection for her son cannot be excelled by anyone else.

23. From the above it is crystal clear that the appellant is in a better position to protect the welfare of the minor as he cannot form intelligence preference in matter relating to his custody. Reliance has been placed in the case of S. Rama Iyer v. K.V. Natraja and Smt. Hafizur Rahman v. Smt. Shakila Khatoon.

24. In the case of S. Rama Iyer v. K.V. Natraj Iyer (supra) it has been held that the child of 12 to 14 years cannot form intelligent preference in matters relating to his custody. This court while considering the lis between the parties was not only swayed by the statement of the child but by the intelligence, which is not the monopoly of any one. In any case a child is always intelligent enough to where he would receive affection and love. He may not be conscious as regard the future but his upbringing and affection as has been found to be with the mother (respondent) cannot be assailed.

25. The case of Hafizur Rahman v. Smt. Shakila Khatoon, does not help the respondent. It has been held that the object recognising the custody under law is in a nut-shell to rear the child for which the mother is best suited and is preferred in comparison to the father. Looking to the entire surrounding circumstances of the case it will be in the interest of the child that he stays with his mother who would be seized with his welfare instead to permit him to live with the respondent. The trial court only considered the aspect as regards the legality of the respondent to claim the custody. The paramount consideration as regards the welfare of the child was illegally ignored. This appeal thus deserves to be allowed and the order of the trial court is liable to be set aside. In the result the appeal is allowed. The judgment and order dated 1.9.88 is hereby set aside. The child is directed to remain in the custody of the appellant. However, the appellant may permit the respondent to visit his child twice a month on the date and time intimated 3 days in advance for a period of half an hour.”

A perusal of the judgment and order dated 07.08.2018 passed by the Principal Judge, Family Court, Sitapur, whereby the case of the appellant has been dismissed, it appears that the court below while dismissing the case for custody of minor, considered the following facts:-

(a) Appellant and respondent no. 2 married on 03.06.2006.

(b) Out of wedlock Master Azazul Hussain/respondent no. 1 was born on 16.05.2007.

(c) Respondent no. 2 alongwith respondent no. 1 left the matrimonial home on 26.04.2008 and since then living separately alongwith minor/respondent no. 1.

(d) On 26.04.2008, the date on which the respondent no. 2 (wife of appellant) left the matrimonial home alongwith minor/respondent no. 1 i.e. Azazul Hussain, the minor, was about 11 months old.

(e) In the intervening period the appellant never tried to meet his son nor provided any financial support to him.

(f) Appellant has not disclosed the source of his income nor monthly income.

(g) The plaintiff-appellant has not even bothered to know about the welfare of the child.

(h) Divorce/talak has already been taken place between the appellant and respondent no. 2 on 06.07.2013.

(i) The respondent no. 1 i.e. Azazul Hussain is getting proper care by his mother.

After considering the aforesaid, the court below came to the conclusion that looking into the welfare of the minor child it would be appropriate that the custody of minor child should not be given to the appellant and accordingly dismissed the claim of the appellant.

Considering the facts of the case and reasons given by the court below while dismissing the case of the appellant for custody of minor Azazul Hussain in the light of principles settled on the issue of custody of minor, referred hereinabove, we are of the view that the conclusion drawn by the court below vide judgment and order dated 07.08.2018, is not liable to be interfered. We do not find any infirmity or illegality in the impugned judgment and order dated 07.08.2018 passed by Principal Judge, Family Court, Sitapur by which custody/guardianship of the minor child-Azazul Hussain has been denied to appellant.

Accordingly, this appeal is dismissed.

No order as to costs.

Order Date :- 20/12/2019

Jyoti/-

 

 

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