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2009 DIGILAW 126 (JK)

Ali Mohd. Bhat v. Yasmeena

2009-03-20

MOHAMMAD YAQOOB MIR

body2009
1. Custody of the ward sought by petitioner has been declined by the Court of learned Additional District Judge, Srinagar vide his order dated 9.8.2007. 2. Parties were married to each other, nuptial knot got untied due to strained relations but not before one child Urfa Jan was born, though marriage subsisted for eight years, but lack of reconciliatory approach has resulted in termination of the marriage bond. Resultantly only daughter born has become the victim of loosing the deserved parental affection. On dissolution of the marriage, Urfa Jan daughter remained in the custody of the respondent (mother). Appellant (father) filed application for custody of the ward claiming concern about well being and the educational career of the ward. 3. Appearing counsel for the appellant first contended that learned trial court has not considered the material available on record more so has mis-appreciated the evidence. While buttressing this submission contended that the respondent is suffering from mental disability, whereas, learned trial court has not accepted the same. The submission is not well founded. Learned trial court after appreciating the evidence more particularly the deposition of Dr. Mushtaq Ahmad Margoob produced by the appellant has rightly concluded that respondent though having mental depression but same is not of the magnitude so as to effect the well being of the ward. In cross-examination said doctor witness has specifically deposed that with the type of depression respondent is suffering no adverse effect can be on the child and nor same can stand in the upbringing of the child. The said witness doctor has further deposed that due to the turmoil in the Valley lot of people are suffering from depression but however, they are able to take care of their business and also of their families. The said witness doctor has further deposed that due to the turmoil in the Valley lot of people are suffering from depression but however, they are able to take care of their business and also of their families. That apart learned trial Judge has also recorded the statement of respondent, perusal of which reveals as to how she shall be able to discharge the moral duties of maintaining her daughter, had her mental depression been of great magnitude then she could not have deposed the way she has deposed before the trial court and even learned trial judge has observed that he had an occasion to see the respondent and she was found normal, though learned counsel contended that the learned trial judge could not substituted his opinion against the opinion of the expert but the argument is fallacious because witness expert i.e. doctor has deposed on the same lines, even otherwise court is the expert of experts can easily judge on the physical appearance as to whether a person is physically and mentally sound. 4. Next learned counsel contended that love and affection is not be all and end all in the present day world, when educational facilities shall be extended in a manner so as to develop a child to compete in the challenging competitions, for that purpose financial position must be sound. The respondent is not having sound financial position so shall not be in a position to provide education to the ward to the desired limits. The submission has to be rejected if the appellant shows that much of concern nothing prevents him from providing financial support beyond limits so that the respondent is able to provide education to the ward to the desired limits. It shall be open for the appellant to provide required financial assistance to the respondent for the well being maintenance and better education of the ward. 5. Next it was contended by the learned counsel that until ward was in the custody of the appellant she would obtain 95% marks in the examination now being in the custody of the respondent has fallen down to 40 to 50% marks. 5. Next it was contended by the learned counsel that until ward was in the custody of the appellant she would obtain 95% marks in the examination now being in the custody of the respondent has fallen down to 40 to 50% marks. This submission is without any basis because on scrutiny of the trial court record case has not been projected on this ground nor is any material available on the record to show that the ward has been obtaining 95% marks or now she is obtaining 40 to 50% marks. It is something projected beyond pleadings, even in the appeal no document has been placed on record to support this position. 6. Learned counsel has placed reliance on the judgments reported in AIR 2006 SC page 1343 and 2008 (1) SLJ Page 197 but every case has to be considered in the background of the particular facts and features, however, essence is the welfare of the ward. Learned counsel contended that while considering the custody of the child the paramount consideration is the welfare of the ward. It is trite that while considering the application under the Guardian and Wards Act the court has to look into the first priority i.e. welfare of the ward. The importance of the welfare of the ward cannot be compromised because the object of the Guardian and Wards Act is to protect and advance the perfect welfare on all fronts of the wards. In the instance case the ward being female child, her interests can be taken better care of by the mother when she has no disability except for depression which according to the doctor witness has no adverse effect on the capability of the respondent. 7. Learned counsel rightly contended that though as per the Muslim Personal Law right of Hazanat is there i.e. until attaining the age of puberty the female child has to remain in the custody of the mother but same can be disturbed under the provisions of Guardian and Wards Act in case mother has disability or welfare of the child is in jeopardy, but no such circumstances are forthwith coming from the records which would disentitle the respondent from retaining the custody of the ward. 8. Respondent is contended to be having an indifferent attitude which has resulted in strained relations and even dissolution. 8. Respondent is contended to be having an indifferent attitude which has resulted in strained relations and even dissolution. Respondent has remained the wife of the appellant for eight long years, had to undergo surgery while delivering the female baby (ward) if she (respondent) would have been taken proper care of by the appellant, may be then present situation seem not to have arisen. Appellant appear to have contributed to the disaster of dissolution now cannot make the respondent (mother) to suffer by divesting her from the custody of the ward when the ward is properly taken care of by the respondent. 9. The order impugned passed by the learned first Additional District Judge is perfectly in consonance with law does not suffer from jurisdictional error or from any material irregularity so is upheld, resultantly appeal dismissed. Copy of the order alongwith subordinate record be sent back forthwith.