BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 13.11.2017

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

C.M.A.(MD)No.1301 of 2015
and
C.M.P.(MD) No.1943 of 2016

M.Ansar … Appellant

Vs.
1.Rikana
2.Sahabdheen
3.Aysha Beevi … Respondents

Prayer: Civil Miscellaneous Appeals are filed under Section 47 of Guardian
and Wards Act, to set aside the order and decree dated 10.08.2015 in
G.W.O.P.No.380 of 2012 on the file of District Court, Kanyakumari at
Nagercoil.

!For Appellant : Mr.Thayumanasamy

^For Respondents : Mr.Robinson

:JUDGMENT

Heard the learned counsel on either side.

2.The appellant herein got married to one Rikana on 17.08.2008 as per
Muslims rights and customs. A child was born to 23.05.2009. Differences
arose between the couple and the appellant divorced the first respondent on
04.10.2010. The child Mohammed Ajmal is with the mother. It is now stated
that the appellant as well as the first respondent got remarried. The
husband of the first respondent is employed abroad. The appellant filed
G.W.O.P.No.380 of 2012 on the file of the District Court, Kanyakumari
District at Nagercoil seeking custody of the child. The appellant examined
himself and his father. However, he did not choose to examine his present
wife Jasmine. The learned trial Judge also remarked that the appellant has
doubted the very paternity of the minor child. The petition seeking custody
and guardianship came to be ultimately dismissed. Challenging the same, this
appeal has been filed.

3.The learned counsel for the appellant contended that there is
absolutely no basis for the finding that the appellant ever doubted the
paternity of the child. This Court went through the entire evidence. There
is no justification for arriving at such a finding. It is true that the
appellant has suggested that the first respondent was acting at the instance
of one Ayoob. But that cannot lead to the influence that the appellant
doubted the paternity of the child. The said finding is therefore vacated.

4.The question is in whose custody the child should remain. In this
case, the appellant had got remarried. The mother viz., the first respondent
has also got remarried. The first respondent herein in her counter has
alleged that the appellant has divorced the second wife and has now got into
a third marriage. The said allegation is denied by the appellant. But the
fact remains that the appellant did not examine the said Jasmine before the
trial Court. The cruel treatment that is meted out by the step mothers is a
social reality. Of course, there are many exceptions. In this case, if the
said Jasmine has got into the witness box and sworn before the court that she
would consider the said Mohammed Ajmal as her own child, then the same can
certainly be taken note of. But, that is not the case here. The said
Jasmine was not examined. The appellant has another child through his second
marriage.

5.Since the matter concerns the welfare of a minor child, I directed
the first respondent to produce the child before me. I conversed with the
child in my Chambers. The boy is being brought up well. He is getting good
education. He wants to become a police officer. The boy is very clear that
he wants to stay only with his mother. He does not want to go to the father
even during the weekend. The child is not a chattel. Therefore, the desires
of the child will have to be taken into account. I am of the view that the
interest of the child will be better served if he continues to be in the
custody of his mother. Of course, as the father, the appellant is entitled
to have visitation rights. The father is entitled to see the child every
Sunday. I suggested to the first respondent as well as the child that the
child can meet the father in the premises of the local ‘Pallivasal’. The
said Pallivasal is stated to be a spacious place of worship. Therefore, in
such a conducive atmosphere, there may be regular meetings between the father
and the child on every Sunday.

6.The present husband of the first respondent is employed abroad. It
is quite possible that the first respondent may have to join her present
husband if the need arises. In such a situation, the child will certainly
have to go with the first respondent. It is open to the first respondent to
file an application before the trial Court and take the child with her after
getting permission. The order of the trial Court cannot be faulted. It took
into consideration the paramount interest and welfare of the minor child.
Though one of the reasons assigned by the trial Court is not correct, on an
independent consideration of the materials on record and in view of my
personal session with the child, I am of the view that the order passed by
the trial Court does not warrant any interference.

7.The first respondent is directed to leave the child in the premises
of the local ‘Pallivasal’ at 10.00 a.m. on every Sunday. The appellant as
well as his parents and other relatives, if any can also be present. The
first respondent shall strictly abide by this arrangement. It is necessary
that a natural bonding is created between the father and son.

8.After I passed this direction, the appellant who was in the visitors’
gallery came forward and informed this Court in person that he does not want
to see the child any further. Since the appellant himself is not desirous of
abiding by the aforesaid arrangement, I have no other option but to recall
the direction given earlier.

9.Accordingly, this civil miscellaneous appeal is dismissed. No costs.
Consequently, connected miscellaneous petition is also dismissed.

To

1.The District Court, Nagercoil.

2.The Record Keeper,
Madurai Bench of Madras High Court,
Madurai.

.