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2002 DIGILAW 89 (JK)

Aijaz Ahmed Tak v. Rabya Kounser

2002-04-08

SYED BASHIR-UD-DIN

body2002
Appellant was married to respondent No. 1 which marriage came to end soon thereafter. During subsistance of marriage Zaid Aijaz Tak was born. The boy was given in custody of his mother till he attained the age of 9 years. The divorce deed (Annexure-C) is on record. However, the Divorcee Rabya Kounser married with respondent No. 2. Petitioner father of the boy Zaid Aijaz Tak moved an application under section 12/25 of the Guardians and Wards Act for custody of the ward. The matter came to be hotly contested by the parties before the Guardians and Wards Court (District Judge, Srinagar). The Court dismissed the application. Against this order dated 12.10.2000 this civil statutory 1st Appeal under section 47 of Guardian and Wards Act is filed. The trial court record on being sent for is on appellate file. The case has been taken up for final disposal on request of counsel for the parties. 2. Admit. Notice on behalf of respondents 1 and 2 is accepted by Mr. Zahoor A. Shah, an Advocate of the J&K High Court. Respondent No. 3 has not choosen to appear. 3. Mr. M. A. Qayoom submits that the impugned order is vitiated for the reason that the District Judge, Srinagar has taken hyper-technical view of the matter while holding that the ward is neither removed nor has left the custody of the guardian, therefore, section 25 of the Guardian and the Wards Act is not attracted to this case. The counsel goes on to submit that the mother had the custody of the child as per the agreement between parties. Besides under Personal Law till the ward attained the age of 7 years, he was to continue in custody of his mother, though the petitioner (father) continued to be natural guardian. Defacto custody of the child with the mother is in fact on behalf of the natural guardian, the father. Once the child has been shifted for lodging and boarding with respondent No. 2, Mr. Zahoor A. Shah Advocate who happens to marry Wards mother respondent No. 1, the custody of the child is for all practical purposes with his new father respondent No. 2 and looked from any angle it is definitely removal of the ward from the custody of the mother/natural guardian the father, notwithstanding the defactive custody of the ward with the mother (Hizanat). Once so the guardian and Wards court had to examine the matter from the stand-point of the Welfare of the minor the predominant consideration while settling the question of guardianship or return of the ward to the guardian under the provisions of Guardian and Wards Act. The court had to be guided by considerations which in circumstances of the case are germane for the welfare of the Ward. Even the wishes of the ward had to be ascertained as the ward is by now old enough to form an intelligence preference. The counsel also solicits that the petitioners evidence has not been properly analysied and appreciated. Even though respondents led no evidence yet the application has been decided in their favour without any evidence and merits of the case. 4. In reply Mr. Z. A. Shah submits that the application is malafide, in as much as, it is moved only as a provocation to the Divorcee wife marrying 2nd time and not for any reason envisaged by Guardian and Wards Act. Besides welfare and wel-being of the ward has been duly examined by the court below and no case is found in favour of the petitioner on merits. Besides the Ward is neither removed nor has left the guardian, therefore, application is not covered by Section 25 of the Guardian and Wards Act. 5. There is no dispute with regard to the facts that petitioner and respondent No. 1 were married as per Shariet in 1991. The marriage broke-down resulting in divorce to respondent No. 1 in October, 1994. During this material wedlock Zaid Ahmed Tak ward was born. In the divorce deed as per the agreement arrived at by the parties the ward Zaid Ahmed Tak was to stay with his mother till he attained the age of 9 years, thereafter wishes of the child would be ascertained and on the preference of the ward, he was to be given to the custody of his preferred parent. In between the father was given right of meeting with the child. The divorcee Rabya Kounser went for 2nd marriage and married with Respondent No. 2. The mother and the ward began to reside with said Respondent No. 2 Mr. Zahoor A. Shah, the child from his first wife as also Zaid Ahmed Tak are receiving education in Burn-Hall School. In between the father was given right of meeting with the child. The divorcee Rabya Kounser went for 2nd marriage and married with Respondent No. 2. The mother and the ward began to reside with said Respondent No. 2 Mr. Zahoor A. Shah, the child from his first wife as also Zaid Ahmed Tak are receiving education in Burn-Hall School. Petitioner alleges that while admitting the child in the school his name and parentage has been changed. He has been admitted in the school with name as Sibqatullah Shah S/o Zahoor A. Shah, against facts and thereby even attempt is made to distort the facts. This circumstance of substituting new name and parentage of the ward in school records is not denied, though it is asserted (by the otherside) that the same has been done for the welfare and wel-being of the child. 6. In the above context and financial back-drop the question that arises is whether petitioner can move the application in question for custody and return of the ward as his natural guardian. Section 25 (1) reads as under:- "Title of guardian to custody of ward:- (1) If leaves or is removed from the custody of a guardian of his person, the court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian." 7. Admittedly there is no order of appointment of guardian of the ward by any court, under the personal law as applicable to the parties the mother is entitled to the custody (Hizanat) of the ward till he completes the age of seven years. Once the child has completed the age or mother has gone for 2nd marriage, the custody under Personal Law belongs to the father. But all the same this principal cannot be read in isolation from the provisions of Guardian and Wards Act. The return to the custody of guardian of the ward who leaves or removed from his custody is a matter of discretion guided by welfare and welbeing of the ward. All the same the Personal law of the parties cannot be lost sight of and court cannot ignore this aspect of the matter. The return to the custody of guardian of the ward who leaves or removed from his custody is a matter of discretion guided by welfare and welbeing of the ward. All the same the Personal law of the parties cannot be lost sight of and court cannot ignore this aspect of the matter. The mother though entitled to custody of the child for a certain period depending on sex of the child, is not natural guardian. It is the father alone who is the natural and legal guardian as per Suni Law applicable to this case. Obviously the right and factum of custody of the mother is subject to the supervision of natural guardian. The right of Hizanat does not carry with it, the powers of a guardian under the Guardian and Wards Act (See Imambandi v. Mutsaddi (1918)45 I. A. 73; 83-84 Cal. 878, Fatima Bibi v. Pentu (1941) 2M. L.J. 548 and Mohammad Jameel Ansari v. Ishrath Sajeeda (AIR 1983 A. P. 106 D. B.). In Rozy Jacob v. Jacob (AIR 1973 SC 2090 at page 2098), in the context of provision of section 25 of the Guardian and Wards Act it is observed:- " In our opinion S. 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 is 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 the latters welfare....." 8. In this context whether ward has left or removed from custody of his guardian as referred in Mohd. Ramzan Magrays case (1983 KLJ 335) cannot be literally on a hyper-technical view applied to a case in isolation of the context and divorced of the facts and circumstances established in a case. 9. This aspect of the matter has been totally lost sight of and over-looked by the court below while rejecting the application. Ramzan Magrays case (1983 KLJ 335) cannot be literally on a hyper-technical view applied to a case in isolation of the context and divorced of the facts and circumstances established in a case. 9. This aspect of the matter has been totally lost sight of and over-looked by the court below while rejecting the application. There is no dispute that the ward is over 9 years of age and is in a position to make intelligent preference. In terms of Personal Law as applicable to this case and the understanding between the pathalogical mother and father of the ward the child on attaining the 9 years age has to make his preference for custody which preference is to govern the question of his staying with either of the parents or otherwise. This position is in tune with provision of Section 17 of the Guardians and Wards Act, which provides that while determining the welfare of the ward, the court is to be guided consistently with the law to which the minor is subject, by welfare and wel-being of the child. While arriving at decision as to the welfare of the child court shall have regard to the age, sex and religion of the ward, character and capacity of the proposed guardian and his nearness of kin to the ward for the existing or previous relations of the proposed guardian with the minor. However, it is expressly provided that in case the ward is old enough to form an intelligent preference, the court is also to consider the preference of the minor. This aspect of the matter has not been also adverted to. In fact wards preference has been wholly ignored and in any case not considered. 10. The original name and parentage of the ward has been changed while admitting the ward to the Burn-Hall School. The appellant-father brands this to be malafide exercise on behalf of ex-wife and his 2nd husband respondent No. 2, whereas the respondents 1 and 2 claim that this has been done for the welfare and wel-being of the minor. This aspect has not been examined and considered on the touch stone of the evidence led. Mere reference of trial court that the same is in the interest of minor, is no substitute for a reasoned finding based on facts and circumstances of the case as made out by evidence on record. This aspect has not been examined and considered on the touch stone of the evidence led. Mere reference of trial court that the same is in the interest of minor, is no substitute for a reasoned finding based on facts and circumstances of the case as made out by evidence on record. Can the name and parentage of the child be changed at the will of 2nd husband or his mother is a matter that has to be gone through and the implications of this circumstances on the present case have to be determined on established facts and the law as applicable thereto. Again this aspect of the matter cannot be dealt with so casualy in the light of objection raised by the pathological father of the ward. 11. It is manifest that the court below has failed to exercise jurisdiction to determine real issues raised. The question of custody or return of custody of the ward, in the facts and circumstances of this case, is not determined in the context of Guardians and Wards Act in conjunction with Personal Law applicable to the parties. The above issues have not been at all addressed to by the trial court. Even the discussion of evidence and effect of material and circumstance appearing on record on the fact situation of this case has not been considered. If the impugned order is allowed to stand, same would occassion figure of justice. 12. In result, impugned judgement is set-aside and the case is remanded to the trial court with direction to proceed to determine the questions raised afresh after affording opportunities to parties to lead evidence. The evidence already recorded (subject to just exceptions) shall be read as evidence even after remand of the case. Parties are directed to appear before the court of District & Session Judge, Srinagar on 18-4-2002. Copy of this order alongwith record shall be despatched to the court below well in advance to the aforementioned date.