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2002 DIGILAW 111 (JK)

Ab. Gani Rasti v. Muneera Banoo

2002-04-26

B.L.BHAT

body2002
1. This appeal under section 46 of the J&K Guardian and wards Act (hereinafter to be referred to as the Act) is directed against the order dated 22.5.2000 recorded by the learned Principal District Judge, Srinagar in a Guardian application No. 182/Guardian of 1996. 2. It appears that the appellants-petitioners through the medium of aplication styling it as petition under section 25 of the Act approached the Principal District Judge Srinagar for declaring them as Guardian for the person and property of minor namely "Qurat-ul-ain" six years old daughter of their son-on the strength of being her paternal grant parents. The respondent who is the natural mother of the said Qurat-ul-ain resisted the petition by filing her written objections inter-alia stating that being the natural mother of the minor she is entitled to her custody and apointment as Guardian. It is further stated that she was living in her matrimonial home alongwith her minor child, after the death of her husband she was turned out from his house by the appellants-petitioners. That the minor is being looked after well so as her health and medical care is concerned. The learned trial court on conclusion of the proceedings came to reject the petition by virtue of order dated 22.5.2000. This order is impugned in this appeal. 3. The appellants have assailed the impugned order inter-alia on the ground that the aplication before the trial court was not one for declaration of Guardian but was one for the custody of minor under section 25 of the Act. That the proof required under sec. 25 of the Act is different than required under sec. 7 of the Act. Heard learned counsel for the parties and have gone through the record of the case. 4. It appears that the parties in a bid to substantiate their respective claims before the trial court have examined themselves as well as their witnesses. 5. The appellants besides the appellant No. 1 have examined Ghulam Hassan Mukhdoomi and Gh.Mohmmad Bhat petition writer. The respondents besides herself has examined Mukhtar Ahmed Banday, Abdul Gani Rasti, appellant No. 1 has deposed that Khuda Bakash was his son who expired 0n 3.11.1995 after leaving behind the only daughter namely Quarat-ul-ain who is at present six years of age and is living with her mother. The respondents besides herself has examined Mukhtar Ahmed Banday, Abdul Gani Rasti, appellant No. 1 has deposed that Khuda Bakash was his son who expired 0n 3.11.1995 after leaving behind the only daughter namely Quarat-ul-ain who is at present six years of age and is living with her mother. The respondent was married to her deceased son and out of this wed-lock said female minor child was born. His deceased son had pronounced Talak to the respondent, his wife, during his lifetime. He, the appellant-petitioner is prepared to deposit Rs. 50,000/-in the name of his said grand daughter. The minor is living with respondent since 24.11.1995 the date she left their house. PW Ghulam Mohmmad Mukhdoomi and Gh.Mohmmad Bhat petition writer have not corroborated the version of the appellant-petitioner to the effect that the deceased son of the petitioner had divorced his wife, the respondent, during his life time. PW Ghulam Mohmmad Mukhdoomi while giving sequence of events has deposed that he knew the deceased, the son of the appellant who died in the year 1995. The deceased was married to respondent Mst.Muneera Banoo. It is after the death of the deceased the appellant who is retired Lecturer told him that Mst.Muneera Banoo stands divorced. On cross-examination he has deposed that Mst.Muneera banoo lived in her matrimonial home for some time even after the death of the husband. Later on, she left for living in her parental house. It is the respondent who looks after the minor. P.W Ghulam Mohmmad Bhat who is the petition writer has deposed that he does not know whether Khuda Bakash Rasti ever divorced Mst. Muneera Banoo. 6. On the other hand Mst. Muneera Banoo has deposed that Khuda Bakash Rasti was her husband, they got married in the year 1990 and out of this wed-lock she has a female daughter namely Quarat-ul-ain. Her said daughter lives with her and is undergoing education in an English Medium School and it is she who looks after her. She has not re-married nor intend to do so in future also. On cross-examination she has deposed that it is incorrect to say that her husband had ever divorced her. Her said daughter lives with her and is undergoing education in an English Medium School and it is she who looks after her. She has not re-married nor intend to do so in future also. On cross-examination she has deposed that it is incorrect to say that her husband had ever divorced her. DW Mukhtar Ahmed has corroborated the respondent in material particulars by deposing that respondent and Khuda bakash Rasti got married in the year 1990, out of this wed-lock a female child namely Quarat-ul-ain was born who lives with her mother. The monthly income of respondent is about rupees one thousand.It is Mst. Muneera Banoo who looks after her minor child who is undergoing education in an English Medium School. 7. From the aforesaid discussed evidence no case for handing over custody to the petitioner/appellants or their appointment as Guardian is made out. There is nothing in the evidence of the appellant that the respondent who is the natural mother of minor Quarat-ul-ain has conducted herself in such a manner which may dis-entitle her to have her custody or that this shall not be for the welfare and in the interests of the minor to allow her to remain with the natural mother, respondent No. 2. In determining the question of custody of a female child, the foremost consideration is the welfare of the child. It has come in the evidence of the parties that the minor Quarat-ul-ain is the real daughter of the Mst. Muneera Banoo and is living with herafter the death of her father Khuda Bakash and is also being looked after well by her mother so far as her health, education etc.,is concerned. Besides this the parties are Muslims by religion and under the Muslims Personal Law, the mother of a female child has a right of custody (Hizanath) of her female child till such a child reaches the age of puberty. In the instant case it is admitted that Quarat-ul-ain is of six years age as a result of which her mother, the respondent has a right to have her custody under the Islamic Law governing the parties. Apart from this I find this in the interest of the minor not to dis-lodge her from the custody of her mother because there is nothing parallel to mothers affection in the world. Her dis-lodgement may tell upon her health adversely. 8. Apart from this I find this in the interest of the minor not to dis-lodge her from the custody of her mother because there is nothing parallel to mothers affection in the world. Her dis-lodgement may tell upon her health adversely. 8. In view of the afore discussions I find that there is no infirmity in the impugned order and the appeal in hand is not sustainable. As such the appeal is dismissed with costs alongwith all concerned CMPs.