Nazma v. Mohammed Sabir — 1981 DIGILAW 468 (RAJ)

S.K. MAL LODHA, J.—By this appeal under section 47 of the Guardians and Wards Act (No. VIII of 1890), the mother, who is non-petitioner (appellant) has questioned the correctness of the order dated October 6, 1979 of the District Judge, Jodhpur, by which he accepted the petition of the father (petitioner-respondent) and directed that he will get the custody of his minor son Mohammed Hamid. The petitioner-respondent and non-petitioner appellant will hereinafter be referred to as the father and mother respectively. The relevant facts may briefly be noticed. The father was married with the mother at Jodhpur on September 23, 1969. Out of this wedlock, the mother gave birth to a male child on October 19, 1970. The name of the child is Mohammed Hamid. On June 23, 1971, the mother went to her parents house and she took Mohammed Hamid with hear. She did not return thereafter. It was stated that the mother sued the father for maintenance and divorce and was unsuccessful. Mohammed Hamid completed seven years of age on October 19 1977. The father filed a petition under s. 25 of the Act in the Court of District Judge, Jodhpur for the return of the custody of the minor Mohammed Hamid on October 31, 1977 on the ground that it is the welfare of his minor son Mohammed Hamid that his custody should be returned to him from the mother. The mother resisted the petition. It was admitted by her that she is living with the minor son in her parents house since September 23, 1971. She pleaded ill treatment of the father and the members of his family. It was also alleged by her that the father had contacted a second marriage and he has never taken care of the minor Mohammed Hamid for the last seven years. In these circumstances; it was prayed by her that it would not be in the welfare and interest of the minor to deliver him the custody of Mohammed Hamid In support of the petition, the father examined P.W. 1 Jai Dutt Purohit, PW. 2 Mohammed Sabir (father), P.W.3 Mohammed Hassam (the father of the father), PW 4 Abdul Gaffar and PW 5 Ann Raj The mother examined N.A.W, 1, Tejraj NAW 2, Nazma (mother), N.A.W. 3 Mohammed Rafiq, N.A.W. 4 Mustaq Ali, N.A.W. 5 Mohammed Ahsan (brother of the mother) and Mohammed Hamid (minor). 2 Mohammed Sabir (father), P.W.3 Mohammed Hassam (the father of the father), PW 4 Abdul Gaffar and PW 5 Ann Raj The mother examined N.A.W, 1, Tejraj NAW 2, Nazma (mother), N.A.W. 3 Mohammed Rafiq, N.A.W. 4 Mustaq Ali, N.A.W. 5 Mohammed Ahsan (brother of the mother) and Mohammed Hamid (minor). The learned District Judge by his order dated October 6,1979, accepted the petition or the father holding that he is entitled to recover the custody of his minor son Mohammed Hamid, who was in the custody of the mother. She was directed to return the minor Mohammed Hamid to the custody of the father on or before November 2, 1979. It was also ordered that if she failed to do so by that time, a warrant should be issued in accordance with the provisions of section 25(2) of the Act. Aggrieved, the mother has preferred this appeal. 2. I heard Mr. P.C. Mathur, learned counsel for the appellant and Mr. G.M. Mehta, learned counsel for the respondent and have also carefully considered the record. 3. The contention of Mr. Mathur is that the learned District Judge committed a serious error when he recorded a finding that the minor Mohammed Hamid should no more be kept in the custody of his mother, as it is not in his, welfare and interest to remain with her. Mr. G.M. Mehta, on the other hand, supported the order of the District Judge on the basis of the facts, which were found by the learned District Judge for showing that it is in the welfare and interest of the minor that his custody should be returned from the mother to the father . 4. Section 2(5(1) of the Act lays down that an order under s. 25 for the return of the custody of the minor child will only be made if the court is of the opinion that it is necessary for the welfare and interest of the minor. 5. In Bai Tara vs. Mohanlal Lallubhai(l), a Division Bench of the Bombay High Court held that in an application by a father to obtain custody of his minor son, the only question to be considered is whether it will be in the interest and welfare of the minor to return to the custody of the father. 6. 5. In Bai Tara vs. Mohanlal Lallubhai(l), a Division Bench of the Bombay High Court held that in an application by a father to obtain custody of his minor son, the only question to be considered is whether it will be in the interest and welfare of the minor to return to the custody of the father. 6. In Gangarapu Chinna Sambayya vs. Polepalli Rudrappa (3), Beasley, Chief Justice with whom Cornish J. agreed observed as under: "In considering the question of the minors welfare the question as to whether, or not the petition asking for the custody of the minor is bona-fide must be considered. If it is not bonafide that is a reason for not disturbing the custody of the minor. What has to be considered in all these cases is the failure on the part of the father or the person who is prima facie entitled to the custody of the minor to take steps over a long period to get custody of the minor. This of course bears on the question of bona fides." (Itelic supplied). In that case, the husband who did not treat the wife properly, was held to be not a desirable person to have the custody of the child. 7. S. K. Chbudhary vs. Sm. Satirani Chowdhary (3) was a case under s. 25 of the Act. In that case, the father applied under s. 25 for the custody of his minor boy of five years from the custody of the mother whom he had driven-out of the house four years back without caring to know how they were living or making any serious efforts to bring them back. It was held that in the circumstances of the case it would be to the welfare of the minor to remain with his mother and it would be against his welfare to turn him over to his father. The application was dismissed as not being bonafide. 8. In Smt. Gangabai vs. Bherulal (4), it was observed by the learned Judge as follows:- "From this point of view, in case of conflict or dispute between the mother and the father about the custody of their children, the approach has to be somewhat different from that adopted by the Letters Patent, Bench of the High Court in that case. In Smt. Gangabai vs. Bherulal (4), it was observed by the learned Judge as follows:- "From this point of view, in case of conflict or dispute between the mother and the father about the custody of their children, the approach has to be somewhat different from that adopted by the Letters Patent, Bench of the High Court in that case. The fathers fitness has to be considered determined and weighted predominantly in terms of the welfare of his minor child in the context of all the relevant circumstances that have been brought on the record. If the custody of the father cannot promote the welfare of minor equally or better than the custody of the mother, then, he cannot claim indefeasible right to the minors custody under sec. 25 merely because there is no defect in his capacity to look after the minor." (Itelic is mine) R.S. Pathak C.J. (as he then was) in Gokal Nath vs. Smt. Krishna Devi (5), was of the opinion that where the father had failed to make any attempt to provide an allowance for maintenance and education of his minor children ever since his separation from their mother with whom they were living and did not even make any gestures of love and affection towards them and the financial resources of the mother were sufficient to ensure minors proper maintenance and education, the mother and not the father who would be entitled to their custody. 9. After discussing the relevant case law, a learned Judge of the Allahabad High Court in Smt. Ainunnisa vs. Mukhtar Ahmad (6), observed as under :- "Where a minor aged 10-11 years is in the custody of his mother and he has intelligently exercised his preference to continue to stay with her, his custody cannot be disturbed and given to his father though he is the legal guardian of the minor under the personal law (viz., Mohammadan Law). A mere claim to legal guardianship in such a situation will not stand on a higher footing than the claim of the real mother to continue to have the custody of the minor: who has remained in her custody or in the custody of her mother since the birth of the child " (Itelic supplied) In Rosy Jacob vs. Jacob (7), while considering the provisions of s. 25 of the Act, their Lordships observed as under :— "In our opinion, Sec. 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 wards health, maintenance and education, this section demands reasonably liberal interpretation so as to effectuate that object. Hyper-technicalities 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 he latters 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 Sec. 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 childrens custody is S. 25.......................... The Courts power under S. 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-idantical. 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-idantical. The contention that if the husband is not unfit to be the guardian of his minor children, then, the question of their welfare does not at all arise is to state the proposition a bit too broadly and may at times be somewhat misleading. It does not take full notice of the real core of the statutory purpose. In our opinion, the dominant consideration in making orders under 5. 25 is the welfare of the minor children and in considering this question due regard has of coarse to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minors welfare." (Itelic supplied). Here the authorities cited by Mr. Mehta may also be noticed. 10. In Smt. Dr. Snehlata Mathur vs. Mahendra Narain (8), while considering the provisions of sections 17 and 19 (b) of the Act, the learned Judge took the view that welfare of minor should be the paramount consideration An appeal was filed against the aforesaid decision. What was held by a Division Bench of this Court in Dr. (Smt) Snehlata Mathur vs. Mahendra Narain (9) was that unduer importance need not be attached to the so called preference of the child, for, a child of 6 or 7 years of age cannot be expected to form an intelligent preference and in the facts and circumstances of that case, it was held that the little girl would be equally happy, if not more, in the custody of her father, once she returns to him and gets to know him. The principle laid down by the Division Bench in Mst. Amna vs. Abdul Rahim (10) is that what the court is required to consider in an application under s. 25 of the Act is whether in the opinion of the court, it would be for the welfare of the ward to return to the custody of the natural guardian, which in that case was the father. Amna vs. Abdul Rahim (10) is that what the court is required to consider in an application under s. 25 of the Act is whether in the opinion of the court, it would be for the welfare of the ward to return to the custody of the natural guardian, which in that case was the father. Strong reliance was also placed by the learned counsel for the respondent on Sukhdeo vs. Ramchandra (11) and Satya Narain vs. Venkat Laxmi(i2). In the aforesaid Allahabad case, it was held that it is not sufficient to deprive a father of the custody of his child that he quarrelled with the mother of the child or distrusted the moral character of the mother or left the child for the first seven years in charge of his wifes female relatives and desires the return to his custody of the child (girl) on her approaching a marriageable age. In the above Madras case, it was observed that the circumstances that the father is on bad terms with his wife and that they pave been engaged in litigation by themselves do not disentitle a father to the custody of his child. 11. It appears to be well settled from the various decisions of the High Courts and this Court as well as of the Supreme Court that for the return of the custody of the minor on an application under s. 25, the court has to consider whether it is in the) interest or welfare of the minor to do so. In other words, it will have to be seep whether the person who is asking for the return of the minor child will be able to properly look after his health, maintenance and education. The predominant objection of s,25 as has been enunciated in the various authorities is whether it is for welfare of the minor to order return of the custody and the order has to be made after considering all the relevant facts and circumstances, for, each base has to be decided on its own facts. The predominant objection of s,25 as has been enunciated in the various authorities is whether it is for welfare of the minor to order return of the custody and the order has to be made after considering all the relevant facts and circumstances, for, each base has to be decided on its own facts. As observed in Rosy Jacobs case (7) "Each case has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts to two cases in this respect being seldom-if ever-ideritical." The welfare of the minor can only be determined by answering the questions: (i) What order would be best for securing the welfare of the minor ? (ii) With whom the minor will be happy ? (iii) Who is most likely to contribute to his well-being and look after his health, education, maintenance and comfort ? The Interest, well being, health, education and happiness of the minor ought to be the sole and paramount consideration for the Court in selecting the guardian of a minor. 12. The learned District Judge after considering the evidence of the parties has stated that it establishes the following facts :— "(1) The father of the minor is a trained science graduate and is emp-loyed as a teacher in government higher secondary school. His monthly salary is more than Rs. 560/-. (2) The spouses are living separately for last seven or eight years. (3) The wife has sued the husband for divorce and maintenance, but she failed. (4) She has no independent source of income. Her father is no more alive. She and the minor Mohammed Hamid are living with her mother and brother. She is thus dependent for maintenance and breedings on her mother and brother. (5) The wife is not an educated woman and none in her parents family is well educated. (6) The petitioner has made attempts in the past to keep the "minor with him but the wife did not allow him to do so. (7) The petitioner has taken second wife but no child has been born to her till now. (8) The petitioner has filed this petition to recover the custody of the minor Mohammed Hamid as soon as the minor completed the seven years of age. (7) The petitioner has taken second wife but no child has been born to her till now. (8) The petitioner has filed this petition to recover the custody of the minor Mohammed Hamid as soon as the minor completed the seven years of age. There are thus no laches on his part" On the basis of these facts, he held that it is for the welfare of the minor Mohammed Hamid that the father is entitled to recover the custody of his minor son Mohammed Hamid. 13. In this Court, Smt. Intu w/o Mohammed Haneef (mother of the appellant) and Ahsan s/o Mohammed Haneef (brother of the appellant) have filed affidavits dated October 24, 1979 to show that they have been maintaining the mother and her son Mohammed Hamid and were prepared to do everything for the warfare and education of the minor Mohammed Hamid. In the affidavits, it has also been stated that they have gifted the property mentioned therein to Smt Nazcna(mother), who had accepted the gift and taken possession of the property and it is fetching a monthly rent of Rs. 300/- per month. Out of it. she can maintain the minor Mohammed Hamid. On the other hand, on February 21, 1981, an application under Order XLI, r. 33 read with Order VIII, r. 8 and s. 151 C.P.C. was filed on behalf of the father supported by his affidavit stating the following subsequent events, which had led to the change in the circumstances and so may be taken notice of:- 1. that the husband has on January 16, 1980 divorced his second wife Smt. Mumtaz. 2. that the wife has on February 27, 1980 obtained a decree of divorce from the Court of the Additional District Judge No. 2, Jodhpur, which has become final, and 3. that the husband has been able to have his posting in the New Government Higher Secondary School, Jodhpur. It was submitted on behalf of the father that the above events will assist the Court to adjudicate rights of the parties according to justice, equity and good conscience. that the husband has been able to have his posting in the New Government Higher Secondary School, Jodhpur. It was submitted on behalf of the father that the above events will assist the Court to adjudicate rights of the parties according to justice, equity and good conscience. In reply to this application, the learned counsel for the appellant has stated that in order to appreciate the facts leading to divorce, it would be necessary to look to the judgment, by which divorce was granted and that this judgment will show about the conduct of the father towards the mother and her minor son Mohammed Hamid. Learned counsel for the appellant has filed the copies of the judgments dated February 27, 1980 of the Additional District Judge No. 2, Jodhpur and dated September 22, 1980 of this Court passed in S.B. Civil Second Appeal No. 106 of 1980 Mohammed Sabir vs. Smt. Nazma. The learned, Additional District Judge No. 2, Jodhpur after consideration of all the relevant facts and circumstances of the case, by judgment dated February 27, 1980 decided issues No 5, 6 and 7 in favour of the mother and against the father, inter alia, holding that the father has treated the mother with cruelty and that be has neglected the mother for a period of two years preceding the date of the institution of the suit. These findings of the learned Additional District Judge No. 2, Jodhpur were confirmed in appeal vide the judgment dated September 22, 1980 of this Court. The learned Additional District Judge No. 2 awarded the wife maintenance @ Rs. 30/- p.m. from January 1, 1974 to the date of the decree i.e. February 27, 1980 and that order has also become final. 14. I consider it proper to dispose of this appeal on the basis of the material that was before the learned District Judge when he allowed the fathers petition under s. 25 of the Act, for, the father has disputed the facts stated in the affidavits of the mother and brother of the appellant and the mother has disputed the correctness of the facts that have been mentioned in the application of the father, which filed on February 21, 1981. One of the important considerations for determining the question of welfare and interest of the minor is the conduct of the the parties and the other is to notice the events upto the date of the filing of the petitioner under s. 25 of the Act There is no dispute between the parties that after the marriage on September 23, 1969, Mohammed Hamid was born on October 19, 1970 and that on June 23, 1971, the mother went to the reparents house and since then, she has not come to her husbands house. It is, thus, clear, that when the mother left Mohammed Hamid on June 23, 1971, he was eight months old, The application was filed on October 23, 1977 and at that time, the age of Mohammed Hamid was seven years. The custody of the minor Mohammed Hamid from October 23,1971 upto the date of the filing of the petition under section 25 of the Act on October 23, 1977 was with the mother. For this period of about 7 years minor Mohammed Hamid was taken care of by the mother and not by the father. It is correct that mother is the legal guardian of the minor under the Personal Law i.e. Mohammedan Law until the minor attains the age of 7 years but that, however, does not absolve the responsibility of the father to care for the welfare of Mohammed Hamid. It is not disputed that the mother initiated maintenance proceedings against the father and those proceedings were resisted by the father. P.W. 2. Nazma has stated that the minor Mohammed Hamid has been living with her and she has been properly looking after him. She got him admitted in Sofia School and thereafter, in Adarsh Bal Vidhyalaya, where he is reading at present. She has also engaged Shri Tejraj, private tutor for coaching him and that there is adequate arrangements for the food and clothes of the minor. It is correct that she had no independent source of income. It is also correct that the father has been drawing a salary of Rs.500/- to 600/-. N.A.W. 5 Mohammed Ahsan is the brother of the mother. He has supported, the mother on the facts deposed by her in her statement inclusive of the fact as to when she got the minor Mohammed Hamid admitted from Saint Patrick School to Adarsh Bal Vidhyalaya. N.A.W. 5 Mohammed Ahsan is the brother of the mother. He has supported, the mother on the facts deposed by her in her statement inclusive of the fact as to when she got the minor Mohammed Hamid admitted from Saint Patrick School to Adarsh Bal Vidhyalaya. It is clear from the statements of the mother as N.A.W. 2 and N.A.W. 5 Mohammed Ahsan that the latter and their mother have an income of Rs. 2,000/- from the property of Ashok Hotel, N.A.W. 5 Mohammed Ahsan has also stated that he is ready to look after the welfare of the minor Mohammed Hamid, and that the financial position of the father is not so sound than that of his. On May 17, 1979, minor Mohammed Hamid was examined by the learned District Judge after testing his competency to appear as a witness under s. 118 of the Evidence Act. At the time of his deposition Mohammed Hamid was 9 years, old. He has categorically stated that he does not want to live with the father and for this he has given reasons also. He was cross-examined on behalf of the father. He has also deposed that he had read in Sofia School in First Standard and second standard and thereafter, he was got admitted in Adarsh Bal Vidhyalaya. He has further stated that he is being coached by the Head Master Tejraj Panwar. N.A.W. 4 Mustaq Ali, who is the immediate neighbour of the mother has stated that the minor Mohammed Hamid reads in third class in Adarsh Bal Vidhayalaya, where his three children also being educated and that the school is good. He has also stated that the standard of living is good. To quote him: — ^^utek ds ?kj esa jgu&lgu QLVZ Dykl gS] LVsUMMZ dk gSA gehn dh ns[kHkky utek o mlds ihgj okys vPNh rjg djrs gS o mls Bhd ,T;qdsku fnyk jgs gSA ;s vPNs vklqnk ?kj ds gSA** From the evidence of the father as P.W. 2, it is clear that he is educated and that he has an income of about Rs. 500/- to 600/- p. m. It has been admitted by him that he has contacted a second marriage and that he does not keep her (second wife) with him and that prior to the filing of the suit for maintenance, he has not sent maintenance at all to the mother because minor Mohammed Hamid was not even shown to him. Regarding the education of minor Mohammed Hamid, he stated that he wants to get him admitted in Central School and can even spend Rs. 100/- or more. PW. 3 Mohammed Hasan is the father of the father. He has stated about the means of income of the father and that the mother has no independent source of income. He has also deposed that her father has died, that the financial position of the members of her (mothers) father is not good and that they are not educated. He has further stated about the condition of the minor Mohammed Hamid to show that he is not properly looked after. P. W. 4 Abdul Gaffar and PW. 5 Anraj have supported Mohammed Sabir (father) on the question that the members of his family are all educated and that their standard and behaviour are good. From the conspectus of the evidence referred to above, the following facts emrge:— (1) that the father has not cared for minor Mohammed Hamid for a period of about 7 years until the date of the filing of the petition under Sec. 25 of the Act, (2) that the father has treated the mother with cruelty and that he has neglected her also (3) that the father has contacted a second marriage, (4) that the father has failed to provide maintenance and education to his minor son Mohammed Hamid, (5) that the minor Mohammed Hamid has intelligently exercised his preference to continue to stay with the mother, and (6) that the mother has no independent source of income but her mother and brother have been looking after her. It is abundantly clear from the evidence that they are contributing to his (minors) well being and looking after his education, & health. At the risk of repetition, it may be stated that the welfare or interest of the minor is the sole and paramount consideration for the court in selecting the guardian of the person of a minor. It is abundantly clear from the evidence that they are contributing to his (minors) well being and looking after his education, & health. At the risk of repetition, it may be stated that the welfare or interest of the minor is the sole and paramount consideration for the court in selecting the guardian of the person of a minor. Having regard to all the relevant facts and circumstances of this case, I am disposed to think that it is not in the welfare and interest of the minor Mohammed Hamid to disturb his present custody. 15. On September 2, 1981, after the case had remained part heard on September 1, 1981, minor Mohammed Hamid was asked to state before the Court his preference. On being asked, he stated that he wants to live with his mother and he expressed his unwillingness to live with his father. In these circumstances, I find it difficult to sustain the finding of the learned District Judge that the father is entitled to recover the custody of his minor son Mohammed Hamid. It is accordingly reversed and I hold that it is not in the interest and welfare of the minor to disturb the present custody of the minor Mohammed Hamid. The petition under section 25 of the Act filed by the husband, there-fore, should have been dismissed. It may, however, be mentioned that this order will, however, nor prevent the father from making further application at any later stage when he may be able to satisfy the Court that it will then be in the interest and welfare of the minor Mohammed Hamid to return his custody to him. 16. The result is that the appeal filed by the mother (non-petitioner-appellant) is allowed and the order dated October 6, 1979 of the District Judge, Jodhpur allowing the petition under Sec. 25 of the Act, is set aside. The petition of the father (petitioner-respondent) under section 25 of the Act is dismissed. In the circumstances of the case, the parties are left to bear their own costs of this appeal.