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2022 DIGILAW 2503 (RAJ)

Mubarik v. Rasida Presently

2022-09-22

FARJAND ALI, SANDEEP MEHTA

body2022
JUDGMENT 1. Notice issued on an application under Section 5 of the Limitation Act for condoning the delay occurred in filing of the appeal has duly served. Shri Saurabh Soni, Advocate puts in appearance on behalf of the respondents. Thus, service is complete. It is pointed out that there is delay of 24 days in filing the appeal. 2. Heard on application for condonation of delay. For the reasons and grounds mentioned in the application, supported with an affidavit, the same is allowed. Let the appeal be treated within limitation. 3. With the consent of the learned counsel for the parties, the matter is heard finally at the stage of admission. 4. The instant appeal under Section 47 of the Guardians & Wards Act, 1890 read with Section 19 of the Family Courts Act has been filed against the order dated 16.05.2018 passed by the learned Family Court, Churu in Family Case No. 413/2014 (353/2013) whereby the application for custody of ward of the appellant has been dismissed. 5. Bereft of elaborate details, succinctly stated the facts of the case are that marriage of the appellant-Mubarik was solemnized with the respondent No. 1-Rasida on 22.05.2001 and from their wedlock a baby boy named Master 'S' was born. He was five years of age at the time of filing of the custody application. 6. It is not disputed that owing to some marital discord between the appellant and the respondent No. 1, they started living separately and on 15.02.2013, divorce took place between them in accordance with Muslim rites. Divorce deed was executed between the spouses on the very same day on a stamp paper of Rs. 100/-. 7. As per the averments made in the petition seeking custody of the Child Master 'S' under Section 14 of the Guardians & Wards Act, 1890, the respondent-wife, after execution of divorce deed, performed second marriage with one Imran @ Kalu respondent No. 2 herein. It is pleaded that respondent No. 2 was previously a married person and his earlier wife begot four children and thereafter passed away. It is alleged that respondent No. 2 was a person of grey shades and was not taking care of their son Master 'S'. He has no concern for the education of the child and as such if the custody of child will not be given to him then his son's future will be ruined. It is alleged that respondent No. 2 was a person of grey shades and was not taking care of their son Master 'S'. He has no concern for the education of the child and as such if the custody of child will not be given to him then his son's future will be ruined. It is pleaded that the appellant is biological father of child Master 'S' and he has capacity to provide better education and good future prospects to him. He is the natural guardian of the child, therefore, his custody may be handed over to him. 8. Refuting the averments made in the custody petition; the respondent-wife filed a written statement averring therein that though she had performed remarriage with Imram @ Kalu (respondent No. 2) but she takes good care of her child. The child was a boy aged 6-7 years, therefore, he was in need of mother's care. It is specifically pleaded that the Divorce Deed dated 15.02.2013 also postulates an agreement between the parties that after the divorce, the custody of the child will remain with his mother. The sanctity of which has never been questioned and thus, the terms and conditions of the Deed dated 15.02.2013 are mandatorily applicable on both the parties. 9. The learned trial Court after framing the issues, recorded the evidence adduced by the parties in support of their respective claims and thereafter, hearing the counsel for the parties, vide impugned order dated 16.05.2018 dismissed the petition filed by the appellant seeking custody of the child. Hence this appeal. 10. The welfare of a child is paramount consideration while adjudicating a plea for custody of child. The baby boy Master 'S' was aged 5 years when the petition was filed; who was being taken care of by his biological mother. No evidence has been brought on record to show that the child was abandoned or was not properly taken care by his mother or by her present spouse Imran @ Kalu. It can be assumed that a boy of tender age needs his mother for all his daily course and pursuits. The respondent No. 1 wife has been examined in the trial as AW-1. It can be assumed that a boy of tender age needs his mother for all his daily course and pursuits. The respondent No. 1 wife has been examined in the trial as AW-1. In her affidavit submitted in the form of examination-in-chief, she has categorically deposed that only one girl child was begotten by earlier wife of Imran @ Kalu, who born on 03.03.2014 and thus she has only two children one from appellant i.e. Master 'S' whose custody is sought for and another is a girl child of Imran who was begotten by his earlier wife. She underwent sterilization and therefore, now she cannot conceive. She further deposed that she takes care of the child with utmost sincerity and the child goes to school regularly, her husband Imran @ Kalu is serving abroad thus both the children are her only ray of hope in her senility. It is specifically deposed by her that the appellant, at his own free will and volition executed the Deed dated 15.02.2013, as per which the right to have custody of the child Master 'S' was given to her. It is also recited in the Deed dated 15.02.2013 that after divorce, the appellant will not agitate the issue regarding child custody. 11. We have minutely gone through the contents of Ex. D-1 'Talaknama' executed in between the appellant and respondent No. 1. The execution of the Deed has not been disputed by the appellant thus, the agreed conditions stipulated in the Deed are binding upon both the parties. There is clear recital to the effect that the custody of the child Master 'S' will remain with respondent No. 1-wife and the appellant will not pay a pittance for his maintenance. The signature of the appellant is appended on the Deed (Ex. D-1) and document was notarized in the presence of two witnesses. 12. Section 94 of the Evidence Act envisages Exclusion of evidence against application of document to existing facts.-When the language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. 13. 12. Section 94 of the Evidence Act envisages Exclusion of evidence against application of document to existing facts.-When the language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. 13. A bare look of Section 94 of the Evidence Act makes it abundantly clear that when the language used in the document is unambiguous and when it applies to the facts correctly mentioned, evidence cannot be given that is to be proved that it was not meant to apply on such facts. Here, in the present case, at one hand the appellant relies upon the document and pleaded that contents of the document regarding divorce and maintenance to be true but on the contrary, he seeks custody of child which he gave to his wife voluntarily. 14. This Court is of the firm view that a party cannot be permitted to blow hot and cold for the same breath and thus, the appellant will not be permitted to pick and choose conditions of the Deed of agreement dated 15.02.2013 which is favourable to him and he cannot be allowed to dispute the other conditions of the same document specially when the very execution of the Deed has not been challenged. 15. Accordingly, the instant appeal filed by the appellant is devoid of any merit and the same is hereby dismissed. 16. Record be sent back forthwith.