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2008 DIGILAW 366 (AP)

Syed Asadullah v. Rasheeda Begum

2008-06-13

B.PRAKASH RAO, R.KANTHA RAO

body2008
JUDGMENT: Hon'ble Sri Justice B.Prakash Rao The appellant is the husband, who is an unsuccessful petitioner in the Court below, who files this appeal under Section 19 of the Family Courts Act, 1984 aggrieved by the order and decree, dated 22.08.2006, in O.P.No.258 of 2005, on the file of the Court of the Judge, Family Court, Hyderabad, dismissing his petition purported to have been filed under Sections 10 and 25 of the Guardians and Wards Act, 1890 seeking custody of the minor son. 2. Briefly stated, the facts which gave rise to filing of the petition are that both the parties herein were married on 23.10.2003 and out of the said wedlock, a son was born on 28.08.2004. Subsequently, certain disputes arose and all the efforts made for settlement failed and this is followed by exchange of legal notices. Ultimately, the parties obtained divorce on 01.12.2004 before the Qazi. However, the matter did not end at there. Again there have been some complaints filed by the respondent against the appellant and the child is admittedly with the respondent herein. 3. The case of the appellant was to the effect that he can take care of the child with much more love and affection and also in a better way and therefore, he sought for custody of the said minor child Master Syed Abdul Malik. 4. Opposing the said petition, the case of the respondent was that of total denial as to the allegations made against her and further asserted that she is in a better position to take care of the child and that apart, as per Mohammedan Law, till the attainment of the age of 7 years, she is the natural guardian of the child and therefore, the appellant is not entitled to seek any such relief. 5. After framing the points for consideration, the Court below conducted an enquiry, during which the appellant was examined as P.W.1 and Exs.P.1 to P.5 were got marked and on behalf of the respondent, R.Ws.1 and 2 were examined and Exs.R.1 to R.13 were got marked. 6. 5. After framing the points for consideration, the Court below conducted an enquiry, during which the appellant was examined as P.W.1 and Exs.P.1 to P.5 were got marked and on behalf of the respondent, R.Ws.1 and 2 were examined and Exs.R.1 to R.13 were got marked. 6. On a consideration of the entire material on record, the Court below did not find favour with the relief as sought for by the appellant herein and dismissed the said petition, however, granting visiting rights to the appellant herein on every second Sunday from 9.00 A.M. to 11.00 A.M. at a mutually convenient and acceptable place. Hence, this appeal. 7. Learned Counsel appearing for the appellant submits that on the material as available on record, the Court below was not right in rejecting the petition. Further, having regard to the fact that admittedly subsequent to the filing of this appeal, the respondent herself got married on 02.08.2007 and therefore, she lost her right as a natural guardian and in support, the appellant has filed an application in FCAMP No.332 of 2007, to receive the additional evidence i.e., marriage certificate of the respondent, dated 27.09.2007, issued by the A.P. State Wakf Board about the said second marriage of the respondent, which took place on 02.08.2007. Thus, it is contended that the respondent cannot continue to remain as guardian or seek custody of the child. 8. Learned Counsel appearing on behalf of the respondent repelling the said contention submitted that the appellant also married on 13.11.2005 and therefore, in view of the same, it is not safe to give the custody of the child to the appellant and thus, the Court below has rightly dismissed the petition filed by the appellant and there is no justification to disturb the said custody of the child from the respondent herein. 9. On considering the submissions made and also on perusal of the material on record, the only point that arises for consideration is as to whether on the facts and circumstances, which of the parties would be entitled to the custody of the minor child. 10. There is no dispute to the aforesaid chequered events viz., the marriage between the parties on 23.10.2003 and the minor child was born on 28.08.2004, later on, the parties obtained divorce on 01.12.2004 and subsequently, this petition is being filed seeking custody of the minor child. 10. There is no dispute to the aforesaid chequered events viz., the marriage between the parties on 23.10.2003 and the minor child was born on 28.08.2004, later on, the parties obtained divorce on 01.12.2004 and subsequently, this petition is being filed seeking custody of the minor child. There is also no dispute to the fact that the appellant got married second time on 13.11.2005. By way of additional evidence, the appellant sought to introduce the marriage certificate of the respondent herein to show that she also got married again on 02.08.2007 and therefore, as per the Personal Law, she lost the right to have the custody of the child. In support of the aforesaid contention, learned Counsel appearing for the appellant placed reliance on the principles in regard to the custody of the child, as enunciated by Article 352 of the Mulla's Principles of Mahomedan Law, which is extracted hereunder: Right of mother to custody of infant children: The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father". 11. From the above, it is evident that once the mother gets married again, she loses the control over the child as natural guardian. Reliance is also placed by the learned Counsel for the appellant on a decision reported in MIR MOHAMED BAHAUDDIN v. MUJEE BUNNISA BEGUM SAHIBA1, where the learned Single Judge of the Madras High Court, considering the similar such circumstances, held that such remarriage would constitute the sufficient ground for removal from the guardianship of the minor. The learned Counsel appearing for the respondent placed reliance on an unreported decision of the Supreme Court in LEKHA v. P.ANIL KUMAL, Appeal (Civil) No.5131 of 2006, dated 21.11.2006. However, since the said case pertains to the Hindus, it will not have any application to the facts of the present case. 12. Be that as it may, the fact remains that the child is born on 28.08.2004 and is hardly about three years old now and admittedly he is in the custody of the respondent- mother. Both the parties have married again. 12. Be that as it may, the fact remains that the child is born on 28.08.2004 and is hardly about three years old now and admittedly he is in the custody of the respondent- mother. Both the parties have married again. Apparently, on the fact that the appellant got married, the Court below, thought it fit that the respondent who is the natural mother and guardian, is entitled to the custody of the child as per the Personal Law. What is pointed out above is that once the mother marries, she loses her right as natural guardian and guardianship to have the custody of the child. However, the circumstances that would be required to be considered for the purpose of appointment of guardian is sine quo non to the welfare of the child, which will prevail over all the other aspects. In this case, though the Court below has taken note of the second marriage of the appellant, his second wife is not examined on behalf of the appellant to show as to how best the interest of the child is protected, when he seeks the custody of the child. Now in this appeal, additional evidence is forthcoming in F.C.A.M.P.No.332 of 2007 to show that the respondent has got married again and the said F.C.A.M.P. is allowed. In view of the same, the matter requires enquiry afresh and disposal on merits, considering the various facts and circumstances to see what would be the best course for the welfare of the child, for the purpose of appointment of guardianship. 13. The appeal is accordingly allowed and the judgment of the Court below is set aside. The matter is remanded to the Court below for disposal on merits, in accordance with law. Both the parties can adduce evidence, if any, afresh, and the Court below shall dispose of the matter on merits, after giving opportunity to both sides, within a period of three months from the date of receipt of a copy of this judgment. It is needless to mention that having regard to the peculiar facts and circumstances, as enunciated under the provisions of Section 17 of the Guardians and Wards Act, the Court below shall weigh the pros and cons in regard to the interest and welfare of the child. It is needless to mention that having regard to the peculiar facts and circumstances, as enunciated under the provisions of Section 17 of the Guardians and Wards Act, the Court below shall weigh the pros and cons in regard to the interest and welfare of the child. The arrangement made earlier in respect of the appellant's visiting rights on the first and third Sunday of every month shall continue to remain in force, however, at a mutually agreed convenient place, for a period of two hours.