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Judgments of Supreme Court of India and High Courts

Mohammed Azeem vs Lubna Arshiya on 28 September, 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 28TH DAY OF SEPTEMBER 2018

PRESENT

THE HON’BLE MR.JUSTICE A.S. BOPANNA

AND

THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

M.F.A.NO.2498 OF 2014 (G WC)

BETWEEN:

MOHAMMED AZEEM
S/O. MOHIDEEN SAHAB
AGED ABOUT 41 YEARS
OCC: BUSINESSMAN
RESIDING AT DEVARAMANE
HARIHARAPURA POST
KOPPA TALUK
CHIKKAMAGALUR DISTRICT-577 126. … APPELLANT

(BY SRI N.S. BHAT, ADV.)

AND:

1. LUBNA ARSHIYA
D/O. LATE MOULA MUKTHIYAR ALAM
AGED ABOUT 39 YEARS.

2. MASTER MOHAMED ASHRAF RAZA
S/O. MOHAMMED AZEEM
AGED ABOUT 12 YEARS.

3. MASTER ATHEEZ RAZA
S/O. MOHAMMED AZEEM
AGED ABOUT 11 YEARS.
2

ALL ARE RESIDING AT:
C/O. SHAMSHADA BEGUM
GORI ROAD, I CROSS
KUVEMPUNAGAR
GUNAVANTHE, KOPPA POST AND TALUKA
CHIKMAGALUR DISTRICT-577 126.
… RESPONDENTS

(BY SMT. GAYATHRI BHAT M., ADV., FOR
SRI P.P. HEGDE FOR R-1
R-2 3 ARE MINORS REPRESENTED BY R-1)

***

THIS MFA IS FILED UNDER SECTION 47(a) OF THE
GUARDIAN AND WARDS ACT, 1890, AGAINST THE JUDGMENT
AND ORDER DATED 04.02.2014 PASSED IN G WC
NO.5/2013 (OLD NO.10/2010) ON THE FILE OF THE PRL.
JUDGE, FAMILY COURT, CHIKMAGALUR.

THIS MFA COMING ON FOR ADMISSION, THIS DAY,
A.S.BOPANNA J., DELIVERED THE FOLLOWING:

JUDGMENT

The appellant, who was the petitioner No.3 in G

W.C.No.5/2013 (Old No.10/2010) is before this Court

assailing the judgment dated 04.02.2014 passed therein.

2. The appellant herein had filed the said petition

before the Court below under Section 7 of the Guardians

and Wards Act seeking custody of the minor children of the
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parties herein. It is noted that the said children named

Master Mohamed Ashfaq Raza and Master Atheeq Raza

were also arrayed as petitioners No.1 and 2 to the said

petition, but are presently shown as respondents to this

appeal.

3. The respondent herein having appeared had

filed objections to the petition. In that view, the parties had

tendered their evidence before the Court below. The

appellant herein, apart from examining himself as PW-1

has also examined two witnesses as PW-2 and PW-3 and

the documents at Exs-P1 and P2 were marked. The

respondent was examined as RW-1, examined a witness as

RW-2 and relied upon the documents at Exs-R1 to R13.

4. The Court below while analyzing the oral and

documentary evidence has specifically referred to the

contention that had been raised by the respondent herein

with regard to the appellant herein having contracted the

second marriage and in that background, keeping in view
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the nature of the contentions urged had adverted to the

welfare of the children in that background. While taking

note of this aspect, the Court below has referred to the

evidence of RW-1 namely, the respondent, who had referred

to the document relating to Nikhanama in that regard and

also the proceedings initiated by the respondent herein

under the provisions of the Protection of Women from

Domestic Violence Act. In that background, the Court

below was of the opinion that the welfare of the children

would be protected, if the respondent herein acts as the

guardian and not the appellant.

5. Though the learned counsel for the appellant

seeks to assail the judgment passed by the Court below by

contending that the Court below had not taken into

consideration the Panchayath to which the reference was

made, whereunder the custody of the children had been

granted for a temporary period of two months to the

respondent, we are unable to accept the contention since,

the Court below, based on the evidence has rightly arrived
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at the conclusion keeping in mind the welfare of the

children and the guardianship in that regard is required to

be taken note. While taking into consideration the welfare

of the children, the Court below has also referred to the

evidence of RW-2 wherein, it was taken note that the

respondent is doing Tailoring work and eking out her

livelihood.

6. Be that as it may, even assuming for a moment

that certain maintenance would be required for the

children, the appellant in any event cannot shirk the

responsibility in the regard, but what is presently to be

taken note in a proceedings of the present nature is with

regard to the custody. In that regard, the reference as made

to the evidence both oral and documentary before the Court

below and the consideration ultimately made by the Court

below is justified.

7. That apart, at this point, it is to be taken note

that admittedly, the first son has attained the age of 18
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years and the second son is about 16 years. In that

circumstance, the position that has existed for this length

of time would not call for any alteration or modification and

the children in any event would take a decision with regard

to their future. Hence, the judgment dated 04.02.2014 does

not call for interference.

The appeal being devoid of merit stands disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

ST

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