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Md. Rabbul Haque vs Ghazala Shahin on 20 February, 2020

F.A. No. 313 of 2019
1

IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 313 of 2019

Md. Rabbul Haque …… ….. Appellant
Versus
Ghazala Shahin ….. …. Respondent
———
CORAM : HON’BLE MR. JUSTICE H. C. MISHRA
HON’BLE MR. JUSTICE DEEPAK ROSHAN
———
For the Appellant : M/s Arshad Hussain
Afaque Ahmad, Advocates
———

4/ 20.02.2020 This appeal is directed against the order dated 24.9.2019,

passed by learned Principal Judge, Family Court, Bokaro, in Original Suit

No. 436 of 2019, whereby the suit filed by the plaintiff appellant was

dismissed as not maintainable, at the admission stage itself, and at the

pre-notice stage.

2. The plaintiff appellant had earlier filed Guardianship Case

No. 13 of 2014, in the Court of learned Principal Judge, Family Court,

Bokaro, seeking the custody and guardianship of his minor son, who at

the relevant time, was aged about four and half years only. The said case

was dismissed vide ex parte Judgement dated 21.05.2015, by the Court

below, holding on the basis of evidence brought on record, that the

appellant wanted to keep his son in a hostel and was not interested to keep

him with himself, as also taking into consideration Section 352 of the

Mulla’s Principles of Mohammedan Law, which entitled the mother to

have the custody of her male child until the age of seven years.

3. Against the said order, First Appeal No. 88 of 2015 was filed

in this Court, which was dismissed by order dated 8.7.2019 passed

therein, but at the same time, giving the visiting right to the appellant.

F.A. No. 313 of 2019
2

4. Thereafter, again Original Suit No. 436 of 2019, has been

filed by the appellant in the Court of learned Principal Judge, Family

Court, Bokaro, under Section 357 of the Mohammedan Law, read with

Section 7 of the Guardians and Wards Act, 1890, seeking the custody and

the guardianship of the minor child, who is now aged about nine years.

This case was dismissed by the learned Court below, holding that the

earlier case of the plaintiff for the same relief had already been decided

and the judgment was affirmed by the High Court in First Appeal No. 88

of 2015, and accordingly, the present case had been filed raising the same

issues, which have already been affirmed up to the High Court level.

Accordingly, the suit was held to be not maintainable and was dismissed,

vide the impugned order dated 24.9.2019, against which, the present

appeal has been filed by the plaintiff appellant.

5. The impugned order dated 24.9.2019 itself shows that the

Court below has not applied its judicial mind to the facts of this case. The

earlier suit was filed when the child was about four and half years of the

age, when the father was not entitled to the custody of the child under the

Mohammedan Law, rather, the mother was entitled to the custody of the

child. The present suit has been filed after the child has crossed that age

and in that view of the matter, the present suit of the plaintiff could not

have been dismissed on the same ground that earlier the suit was already

dismissed and the Judgment was affirmed up to the High Court. We are of

the considered view that the present suit requires proper adjudication by

the Court below and it could not have been dismissed in the manner, it

has been dismissed.

F.A. No. 313 of 2019
3

6. Since the suit was dismissed by the Trial Court below

without issuing any notice to the respondent, we find that there is no

necessity of issuing the notice in the present appeal to the respondent,

inasmuch as, we are only remanding back the suit for proper adjudication,

after issuing notice to the respondent.

7. For the aforesaid reasons, the impugned order

dated 24.9.2019 passed by learned Principal Judge, Family Court,

Bokaro, in Original Suit No. 436 of 1999, cannot be sustained in the eyes

of law, and is accordingly, set aside. The Trial Court below is directed to

decide the suit in accordance with the law, on its own merits after giving

notice to the respondent.

8. This appeal is accordingly allowed at the admission stage

itself, with the directions and observations as above.

( H. C. Mishra, J.)

(Deepak Roshan, J.)
R.Kr.

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