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2013 DIGILAW 881 (AP)

Saif ul Islam Habeeb Ali v. Asma Begum

2013-10-11

A.V.SESHA SAI, R.SUBHASH REDDY

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Judgment : R. Subhash Reddy, J. This appeal is filed under Section 19(1) of the Family Courts Act, 1984, aggrieved by the order, dated 25.09.2012, passed by the learned Judge, Additional Family Court, Hyderabad, dismissing O.P.No.1464 of 2010, filed by the appellant herein under Section 25 of the Guardians and Wards Act, 1890 for custody of minor daughter Baby Habeebunissa. It was the case of the appellant before the Family Court that the marriage between the appellant and respondent took place as per Muslim rites on 15.06.2003 at Hyderabad and out of their wedlock, a female child by name Habeebunissa was born to them on 29.04.2004. At the time of filing O.P. in the year 2010, it is stated that the child was aged about 8 years. The respondent filed a petition for divorce in O.P.No.605 of 2006 on the file of Family Court, Hyderabad and the same was allowed on 17.07.2008, dissolving the marriage between the appellant and the respondent. Thereafter, the respondent filed C.C.No.553 of 2004 against the appellant and the same was dismissed, so also an application in D.V.C.No.9 of 2007 was filed on the file of learned IV Additional Chief Metropolitan Magistrate Court, Hyderabad. It is pleaded that the respondent after obtaining divorce, has remarried, as such, she has no right to have the custody of the daughter. Claiming that he being the father and natural guardian, entitled to the custody of his minor daughter as per Muslim law, it is alleged that the respondent is running a beauty parlour and she is trying to admit the girl child in orphanage home to get rid of her responsibility. On the aforesaid allegations, custody of minor daughter was sought for. The respondent filed counter before the Family Court. Briefly, the averments in the counter are that - she has admitted the marriage and their child. It is averred in the counter that the minor child is in the custody of the respondent since her birth and the petitioner never looked after the minor child and he has not paid any maintenance. It is further pleaded that after marriage the appellant demanded Rs.15.00 lakhs from the parents of the respondent and they have paid Rs.5.00 lakhs. It is averred in the counter that the minor child is in the custody of the respondent since her birth and the petitioner never looked after the minor child and he has not paid any maintenance. It is further pleaded that after marriage the appellant demanded Rs.15.00 lakhs from the parents of the respondent and they have paid Rs.5.00 lakhs. Thereafter, further demand was made for an amount of Rs.1.00 lakh and as the respondent refused to pay, the appellant sprinkled kerosene on the respondent when she was sleeping and tried to burn the respondent, but suddenly she woke up and ran away. It is further averred in the counter that the appellant necked out the respondent from the house and since then she has been living with her parents and she also filed M.C.No.226 of 2004 on the file of Additional Family Court, Hyderabad and maintenance amount of Rs.1,250/- per month was granted to the respondent and her minor daughter. The respondent admitted that she filed O.P.605 of 2006 for dissolution of marriage and further pleaded that earlier also the appellant filed O.P.No.171 of 2008 for custody of the child, in which the respondent produced the child before the Court and on examination, the child had expressed her desire not to go with the appellant, as such, the said O.P. was dismissed. With the aforesaid averments, she prayed for dismissal of the O.P.No.1464 of 2010. Before the trial Court, on behalf of the appellant, he himself was examined as PW1 and Exs.P.1 to P.18 were marked. On behalf of the respondent, she herself was examined as RW1 and Exs.R.1 to R.7 were marked. The trial Court, while elaborately discussing the evidence on record, has recorded a finding that the minor daughter of the appellant never resided with him after her birth and he has not spent any amount for education of his minor daughter. Further, it is proved that the respondent being the mother of the child, paying school fees to the minor daughter, who is studying in Azra Public School. The trial Court also recorded a finding that the respondent has married second time and her husband is working in Bahrain, as well the petitioner also has married again and he is having children through his second wife. The trial Court also recorded a finding that the respondent has married second time and her husband is working in Bahrain, as well the petitioner also has married again and he is having children through his second wife. Thus, by recording a finding that in the interest of minor, the custody cannot be given to the appellant and the welfare of the minor would be better served in the hands of her natural mother i.e. respondent, dismissed the O.P. by order, dated 25.09.2012, aggrieved by which, the present appeal is preferred by the appellant. In this appeal, it is contended by the learned counsel for appellant that the father is a natural guardian of the minor daughter and in view of the provision under Section 352 of the Mulla’s Principles of Mahomedan Law (for short ‘Mahomedan Law’), as the respondent has remarried, appellant-father is entitled for the custody of the minor daughter. The learned counsel in support of his arguments, placed reliance on the Judgment of the Division Bench of this Court in the case of Mohammed Jameel Ahmed Ansari Vs. Ishrath Sajeeda and others ( AIR 1983 A.P. 106 ) and the Judgment of the Madras High Court in the case of Mir Mohamed Bahauddin Vs. Mujee Bunnisa Begum Sahiba ( AIR 1952 Mad 280 ). Per contra, it is contended by the learned counsel appearing for the respondent that even as per the provision under Section 352 of the Mahomedan Law, the mother is entitled to the custody of her male child until he has completed the age of 7 years and female child until she has attained puberty. Further, it is submitted that such right will continue beyond that period until mother of the child contacts second marriage. It is further submitted that at no point of time, the child stayed with the appellant, who is the natural father and he has not spent any amount towards the maintenance of the respondent. It is further submitted that twice the appellant was imprisoned for not paying maintenance as per the orders of the Court. The learned counsel also placed reliance on the Judgment of the Calcutta High Court in a case of Abdul Mohit Vs. Mt. Zebunnessa Khatun and another,( AIR 1951 Cal 205 ) Judgment of the Allahabad High Court in a case of Mohd. Yunus Vs. The learned counsel also placed reliance on the Judgment of the Calcutta High Court in a case of Abdul Mohit Vs. Mt. Zebunnessa Khatun and another,( AIR 1951 Cal 205 ) Judgment of the Allahabad High Court in a case of Mohd. Yunus Vs. Smt. Shamshad Bano,( AIR 1985 All 217 )Judgment of this Court in a case of L. Chandran Vs. Venkatalakshmi and another,(AIR 1981 A.P.1) Judgment of the Hon’ble Supreme Court in a case of Nil Ratan Kundu and another Vs. Abhijit Kundu (2008(6) ALD 105 (SC)) and Judgment of the Hon’ble Supreme Court in a case of Smt. Anjali Kapoor Vs. Rajiv Baijal ( AIR 2009 S.C. 2821 ). Having heard the learned counsel for the parties, we have also perused the material on record. In this case, it is not in dispute that since the birth of the female child of the appellant, at no point of time, she stayed with the appellant, who is the natural father. It is also admitted position that the respondent has obtained divorce from the appellant by filing O.P.No.605 of 2006, which was ordered, dissolving the marriage between the appellant and the respondent and the same has become final. It is true that the respondent has remarried and she is also having children through her husband, who is presently stated to be employed in Bahrain. It is also not in dispute equally that the appellant has also remarried a lady by name Asma and he is having children through her. For the purpose of child custody, it is well settled that the paramount consideration, for using the discretion of the Court for grant of custody, is the welfare of the child and wellbeing of the child. Though the appellant is claiming custody mainly relying on the provision under Section 352 of the Mahomedan Law on the ground that as the respondent-mother of the minor child has married again, as such, the appellant being the father is entitled to the custody. Section 352 of the Mahomedan Law reads as under: “352. 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. Section 352 of the Mahomedan Law reads as under: “352. 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.” From a reading of the above provision, it is clear that mother is entitled to the custody of her male child until he completes the age of seven years and of her female child until she attains puberty, and such right will continue though she divorced by the father of the child unless she marries second husband, in which case custody belongs to the father. From the reading of the aforesaid provision, it is clear to us that the mother is having absolute custody with regard to female child until she attains puberty and such right will continue beyond such period only in the event of not contacting second marriage by the respondent-mother. But, only on the ground that the respondent has married second husband, without mentioning the age of the girl child, the appellant cannot claim for custody. In the case of Mohammed Jameel Ahmed Ansari Vs. Ishrath Sajeeda and others (1 supra), the Division Bench of this Court has held that the children are normally expected to be in the custody of legal guardians. Under Muslim law, after the age of 7 years, it is the father who is entitled to the custody of the child, unless the Court holds on evidence, the father is not a fit person or that is not conducive to the health whether physical or mental of the child. Ordinarily, the children are to be with the father. In the case of Mir Mohamed Bahauddin Vs. Mujee Bunnisa Begum (2 supra), a Single Judge of the Madras High Court has held that by reason of contact of second marriage by the mother, she cannot be the natural guardian when the father of the child is alive. Ordinarily, the children are to be with the father. In the case of Mir Mohamed Bahauddin Vs. Mujee Bunnisa Begum (2 supra), a Single Judge of the Madras High Court has held that by reason of contact of second marriage by the mother, she cannot be the natural guardian when the father of the child is alive. Both the Judgments referred above though relied on by the learned counsel for the appellant, we are of the view that having regard to the facts and circumstances and evidence on record in this case, they would not render any assistance to the case of the appellant. On the other hand, in the case of Abdul Mohit Vs. Mt. Zebunnessa Khatun and another (3 supra), a Single Judge of the Calcutta High Court observed that under Mahomedan Law, a case where the question which fell for consideration was whether a female who was married a stranger, could be appointed as a guardian of the minors. Such observation made in the said judgment is not helpful. Further, in the case of Mohd. Yunus Vs. Smt. Shamshad Bano(4 supra), a Single Judge of the Allahabad High Court held that the Court while deciding the question of guardianship of a minor must, as far as possible, do so consistently with the personal law to which the minor is subject. It is further held that where the dictates of personal law indicate one course of action and considerations of the welfare of the minor indicate another, the former must be subordinated to the latter. The Division Bench of this Court in the case of L. Chandran Vs. Venkatalakshmi and another (5 supra) has held that the right of the father to claim the custody of the minor child without reference to the welfare of the minor, is not acceptable to law. In the case of Nil Ratan Kundu and another Vs. Abhijit Kundu (6 supra), the Hon’ble Supreme Court has held that while dealing the case of custody of minor child, Courts are neither bound by statute nor by strict rules of evidence or procedure nor by precedents and the paramount consideration is welfare and well-being of the child and not rights of parents under a statute. Further, in the case of Smt. Anjali Kapoor Vs. Further, in the case of Smt. Anjali Kapoor Vs. Rajiv Baijal (7 supra), the Hon’ble Supreme Court has held that right of natural guardian is not absolute and paramount consideration for deciding custody is welfare of the child. From the above referred judgments, we are of the view that the judgments relied on by the respondent support the case of respondent in this case. It is not in dispute that female child was aged about 8 years when the O.P. was filed for custody before the trial Court. It is also not in dispute that since her birth, at no point of time, the minor child stayed with her father i.e. appellant. Strictly speaking, she may not recognize her father also in view of her continuous stay with the respondent from her birth. It is equally true that the respondent has remarried after obtaining divorce from the appellant and at the same time, the appellant also remarried a lady by name Asma and he is having children through her. It is also borne out from the record that earlier O.P.No.171 of 2008 was filed by the appellant for custody of the child, wherein the desire of the child was enquired into by the Family Court and the child expressed her desire to stay with the mother only. It is also not in dispute that in spite of the order of maintenance ordered by the Family Court in favour of the respondent and her minor daughter in M.C.No.226 of 2004, the appellant has defaulted the same and there was an order for imprisonment for such default committed by him. From the documentary evidence filed by the respondent, it is clear that the child is being taken care of properly by the respondent-mother and she is studying in Azra Public School. As the minor child has grown up since her birth in the custody of the natural mother and in view of her desire expressed in the earlier O.P.No.171 of 2008 and further, appellant has not taken any steps by spending any amount at any point of time for the upbringing of the child, only on the ground that the respondent has remarried, cannot claim right of custody relying on the provision under Section 352 of the Mahomedan Law. Even from the reading of the provision under Section 352 of the Mahomedan Law, we are of the view that the mother is entitled to the custody of the minor female child with an absolute right till she attains puberty and continuation of such right thereafter will depend on whether the mother of the child has remarried or not. But, without pleading any requirements as contemplated under Section 352 of the Mahomedan Law, merely on the ground that respondent has remarried, that by itself is no ground to claim custody. As held in the above judgments held by the Hon’ble Supreme Court and the other High Courts, we are also of the view that ultimate consideration for custody of the child is the welfare and well-being of the child and desire of the child. But, solely on the personal law, the appellant also cannot claim custody of the child since it is well settled that in the event of conflict between the personal law on one hand and the considerations for the welfare of the child on the other hand, the later to prevail so far as custody of child is concerned. So far as question of custody of the child, it is to be considered with reference to the facts of each case and evidence on record. Having regard to the evidence and pleadings on record, we are of the view that for the better welfare of the child, the appellant-father is not entitled to claim any custody of the child, who is presently staying with the respondent-mother since her birth. For the aforesaid reasons, we do not find any merit in this appeal so as to interfere with the order under challenge passed by the Family Court. The Family Court Appeal is accordingly dismissed. No order as to costs. As a sequel, Miscellaneous Petitions, if any, pending in this appeal shall stand closed.