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2012 DIGILAW 4505 (MAD)

Sameena Begum v. A. P. Mohammed Rafi

2012-10-31

K.CHANDRU

body2012
Judgment This Original petition is filed by the petitioner seeking for the appointment of the petitioner as the guardian of the minor child R.Rehan Rehman and for custody of the child from the respondent. 2. This O.P was admitted on 03.08.2011. On notice from this court, the respondent has filed a counter affidavit dated 21.11.2011. It was directed to be posted before the learned Master for recording evidence. Accordingly, the petitioner was examined as P.W.1. The respondent was examined as R.W.1. On 05.10.2012, this court directed the minor child to be produced in the Chambers. Accordingly, the child was produced in the Chambers and this court had an interaction with the minor child. 3. Heard both sides. The case of the petitioner was that she is the maternal grand mother of the minor child. Her daughter H.Meher Sultana got married to the respondent on 7.5.2006 as per the Islamic rites. Out of their wedlock, the minor child R.Rehan Rehman was born on 10.08.2007. Her daughter died on 16.10.2008. Subsequently, the minor son was in the custody of the petitioner as well as the respondent alternatively. On 20.06.2010, the respondent clandestinely married an another woman by name Rahila Beevi and has got a child through the second wife. Because of this, the petitioner apprehends that the minor child will be neglected by the respondent and his second wife and no case will be given to him. As per the Muslim Law, in the absence of the mother and that the father after marrying another woman, the natural guardian is the maternal grand mother. The respondent had failed to discharge the obligations of a dutiful father and was not affectionate towards the child. The respondent is also not in a position to provide the child good education. He is intentionally keeping her grand son away from her though she is very much attached with the grand son. The child in his tender age requires warmth and motherly care. The welfare of the minor child is the prime consideration in the matter of child custody. Her daughter died due to negligence of the respondent. 4. On the contrary, the respondent's contention was that the family members of the petitioner have committed fraud at the time of marriage. The petitioner's daughter has no left side kidney at the time of marriage. Her daughter died due to negligence of the respondent. 4. On the contrary, the respondent's contention was that the family members of the petitioner have committed fraud at the time of marriage. The petitioner's daughter has no left side kidney at the time of marriage. They had suppressed the vital information and did not inform that she was not competent for the matrimonial life. Before marriage, the respondent's late wife was taking treatment for the left kidney. When he came to know that she was suffering from kidney failure, he had admitted her in a private hospital and gave proper treatment. He had spend more than Rs.3 lakhs for her health. But unfortunately, his wife died on 16.10.2008. At the time of mother feeding of the minor boy he also noticed some defects in the lungs and it was treated by the respondent at the Apollo Hospital by spending more than Rs.2 lakhs. The petitioner herself gave a statement before the Doctor that she was not capable to buy medicines for his late wife and his son by a letter dated 17.4.2008. It was thereafter, the respondent came to know about the problem of his wife. Because of the belated treatment, she could not survive. Even during her hospitalisation, the minor child was with the custody of the respondent. He got married to an another woman only to take care of his minor child. At present the minor son is studying in a good school. So far as his health is concerned, he requires continuous and proper treatment as advised by the Doctor because of infections caused due to mother feeding. The petitioner has no means to maintain the minor son and her family members. 5. The counsel for the petitioner contended that the minor child is only 5 years old and was not capable of expressing any clear opinion. The respondent has married and he is disqualified to keep the minor son. The petitioner being the grand mother and since the father had married another woman, she is entitled for guardianship. The petitioner has well means to keep the child. With reference to the medical expenses incurred by the respondent, no proof has been produced. The respondent had abandoned his late wife during her last days. 6. Reliance was also placed upon a judgment of the Supreme Court in AnjaliKapoor Vs. The petitioner has well means to keep the child. With reference to the medical expenses incurred by the respondent, no proof has been produced. The respondent had abandoned his late wife during her last days. 6. Reliance was also placed upon a judgment of the Supreme Court in AnjaliKapoor Vs. Rajiv Baijal reported in (2009) 7 SCC 322 . In that case, it was noted that the father married for the second time and having a child and getting meagre income and therefore, taking proper care and attention in upbringing the child was the main factor for granting custody of the child. Further it was found that the father will not be able to give comfortable living for the child and that the child was admittedly brought up by the grand mother since infancy and developed emotional bond and also having sufficient mean, the custody can be entrusted. 7. The test for appointing the guardianship is what will best serve for the welfare and interest of the child which must be the sole and predominant criteria. But in the cross examination, the petitioner admitted that the child was studying in MEASI School at Royapuram. But the respondent had stated in his cross examination that the child was studying in Imax Matriculation School. When the petitioner approached the Jamath, she was allowed visitation right over the grand son. The respondent had produced the medical records from the hospital to show that he was taking care of his late wife before her death. He also submitted the school fee receipts. He further submitted that he has a female child through his second wife. 8. In the present case, the respondent did not suffer from any disqualification from having the custody of his own son. Except an apprehension that because of his second marriage, the minor child may be ill-treated, no other allegation was forthcoming. This court is also satisfied that the minor child has been brought up by the respondent in a proper manner. Therefore, the present petition filed by the petitioner seeking for appointment of the petitioner as the guardian for the minor cannot be countenanced by this court. However, the petitioner is entitled for visitation right of the minor child during holidays, i.e., quarterly, half yearly and annual vacations after due notice to the respondent. This original petition will stand dismissed with the above directions.