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2024 DIGILAW 546 (JHR)

Md. Sarferaj Alam v. Simmi Khatoon @ Pummy

2024-06-10

DEEPAK ROSHAN, RONGON MUKHOPADHYAY

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JUDGMENT : Per R. Mukhopadhyay, J. Heard Mr. Ashutosh Anand, learned counsel appearing for the appellant and Mr. Rohit Sinha, learned counsel appearing for the respondent. 2. This appeal is directed against the judgment dated 17.08.2019 passed by Shri Nalin Kumar, learned Principal Judge, Family Court, Ranchi in Original Suit No. 514 of 2017, whereby and whereunder the custody of the child has been handed over to the respondent herein. 3. For the sake of convenience, both the parties are referred to in this judgment as per their status before the learned court below. 4. A Suit was preferred under Section 25 of the Guardian and Wards Act, 1890 by the petitioner/mother (respondent herein) seeking custody of the minor child Md. Shad Alam in which it has been stated that the marriage of the petitioner was solemnized with the respondent (appellant herein) as per the Muslim rites and customs on 23.10.2008 at Jamshedpur. After the marriage the petitioner went to reside at her matrimonial house at Nala Road, Ambia Masjid, Hindpiri, Ranchi. Out of the said wedlock a child was born on 29.5.2010 named Md. Shad and another child was born on 25.09.2011 named as Md. Sameer. The eldest son, Md. Shad is handicapped by birth who was properly being taken care of by the petitioner. While the petitioner was at her matrimonial house with her infant child Md. Shad, she was physically and mentally tortured by the respondent and his family members on non-fulfillment of the demand of Rs. 2 Lakhs. In September 2011 the petitioner was driven out from her matrimonial house when she was in an advanced stage of pregnancy and she was compelled to take shelter at her parental home. It has been stated that when the petitioner was driven out from her matrimonial house her child Md. Shad was 11 months old but the child was not allowed to go with his mother. It has been stated that the petitioner was forced to reside at her parents place and the respondent had come and by indulging in an acrimonious behavior had once again demanded an amount of Rs. 2 Lakhs as dowry and had also assaulted the petitioner for which she was taken to MGM Hospital for treatment. It has been stated that the petitioner was forced to reside at her parents place and the respondent had come and by indulging in an acrimonious behavior had once again demanded an amount of Rs. 2 Lakhs as dowry and had also assaulted the petitioner for which she was taken to MGM Hospital for treatment. Due to the unprovoked and unprecedented behavior of the respondent, the petitioner was compelled to institute a case being Jugsalai P.S. Case No.181 of 2011 under Section 498A I.P.C. and Sections 3 / 4 D.P. Act. The petitioner in December 2011 had filed a Suit under Section 25 of the Guardian and Wards Act, 1890 being Guardianship Case No.22 of 2011 for the custody of the minor child Md. Shad which was dismissed on 7.3.2017 on the ground of lack of territorial jurisdiction against which the petitioner had preferred an appeal before this Court being First Appeal No.110 of 2017 which was dismissed on 3.7.2017 with a liberty to the petitioner to approach the competent family court having territorial jurisdiction. It has been stated that after the birth of the second son on 25.9.2011 though the respondent and his family members were informed but none came to visit her to see the child and though the petitioner on several occasions had gone to her matrimonial house to meet her elder son but the respondent and his family members prevented her from visiting Md. Shad. The petitioner is an Intermediate while the respondent is a Class-VII pass and is a motor mechanic. The petitioner had come to know that the respondent has solemnized a second marriage with Seema Perween and she apprehends that the life of her son Md. Shad will be ruined and he will not be properly taken care of by the respondent. The petitioner had instituted another case being Jugsalai P.S. Case No.357/2015 under Section 498A and 494 I.P.C. for solemnizing a second marriage. It has been stated that the petitioner is more capable to look after the welfare of the child Md. Shad and deserves to be appointed as his guardian. 5. The petitioner had instituted another case being Jugsalai P.S. Case No.357/2015 under Section 498A and 494 I.P.C. for solemnizing a second marriage. It has been stated that the petitioner is more capable to look after the welfare of the child Md. Shad and deserves to be appointed as his guardian. 5. On being noticed the respondent had appeared and filed a written statement in which it has been stated that the eldest son of the respondent is indeed handicapped and he is taken care of by the respondent and is residing with him as the petitioner had not showed any affection towards the child since the time of his birth. It has been stated that Md. Shad is now 8 years old and is being properly taken care of by the respondent. The assertion of demand of dowry and torture and preventing the petitioner from meeting the child has been denied by the respondent. Petitioner is fully dependent on her parents and she has got no independent source of income and in such circumstance the petitioner will not be able to look after the child and the respondent who has an independent source of income from his garage and his parents residing with him make him better equipped to look after the child. It has been stated that on 7.9.2011 the petitioner and her family members had assaulted the brother of the respondent and had taken away various articles and had also thrown Md. Shad who was 14 months old on a water pot but he was saved by the respondent and a case was also lodged by him being Complaint Case No.1494/2011. 6. Based on the pleadings of the parties, the following issues were framed for adjudication:- I. Whether petitioner Simmi Khatoon @ Pummy may be appointed guardian and custody of child may be given to her ? II. Whether it would be good for the welfare of the minor child to hand over his custody to the petitioner ? III. Whether the petitioner is entitled to get the custody of minor child as per settled legal position ? IV. Whether the petitioner is entitled to get any relief or reliefs ? 7. The petitioner has examined two witnesses in support of her case including herself. 8. III. Whether the petitioner is entitled to get the custody of minor child as per settled legal position ? IV. Whether the petitioner is entitled to get any relief or reliefs ? 7. The petitioner has examined two witnesses in support of her case including herself. 8. PW 1 Simmi Khatoon is the petitioner who has stated about her marriage solemnized with the respondent on 23.10.2008 at Jamshedpur and the birth of a child on 29.5.2010 who was handicapped and who was named Md. Shad. In her matrimonial house she was subjected to physical and mental torture on account of demand of Rs. 2 Lakhs as dowry. After the birth of her first child she again became pregnant but the torture upon her continued unabated. She was forced to leave her matrimonial house and the respondent had kept the child with him who was aged 1 ½ years at that point of time. The respondent used to come to her parental house and make demand of Rs.2 Lakhs and he used to abuse her and her family members and also used to threaten them to falsely implicate them in a case. The respondent had also solemnized a second marriage with Seema Perween which further depletes the future of Md. Shad. Due to the behavior of the respondent and her in-laws she was compelled to institute a criminal case for demand of dowry and torture. When she was in her matrimonial house she looked after Md. Shad and when her father on 7.9.2011 had gone to bring her back to her parents home she was humiliated by the respondent and her in-laws and Md. Shad was not allowed to accompany her. She had filed an application for custody of the child which was rejected on account of lack of territorial jurisdiction. It is incorrect to say that she had deliberately left Md. Shad at her matrimonial house. She has also filed a case of bigamy against the respondent and his family members. In cross-examination she has deposed that she runs a boutique at home and her monthly income is Rs.2,500/-. She cannot say as to whether Md. Shad is still afflicted with any disability or not. She at the present stays with her father in a joint family. 9. P.W.2 Md. Nezaruddin is the father of the petitioner who has stated about the birth of Md. She cannot say as to whether Md. Shad is still afflicted with any disability or not. She at the present stays with her father in a joint family. 9. P.W.2 Md. Nezaruddin is the father of the petitioner who has stated about the birth of Md. Shad out of the wedlock of the petitioner and the respondent. After the marriage the petitioner was subjected to torture for non-fulfillment of the demand of Rs.2 Lakhs. He had a talk with the maternal uncle of the respondent namely Md. Rashid and at his insistence he had visited the matrimonial house of the petitioner on 7.9.2011 but he was abused and a demand of Rs. 2 Lakhs was kept before him and on refusal the petitioner was forcibly sent with him to his house. The petitioner at that point of time was carrying a pregnancy of eight months and was sick and the respondent and his family members had also forcibly kept Md. Shad with them. The jewellaries and other valuable articles of the petitioner were also retained by them. He has stated that on 8.9.2011 the respondent had come to Jamshedpur and had abused and assaulted the petitioner and on account of such behavior the petitioner was compelled to institute a case regarding demand of dowry and torture and a separate case for custody of the child Md. Shad. In the meantime the petitioner gave birth to a second child and all the expenses were borne by him. The respondent had solemnized a second marriage with Seema Perween and on coming to know about the said fact the petitioner had instituted another case of bigamy against the respondent and his family members. In the case of maintenance an amount of Rs.4500/- was ordered to be paid to the petitioner by the respondent but the same has not yet been started to be paid by the respondent. The petitioner is looking after the second child and is fully capable to look after the welfare of the first child. In cross-examination he has deposed that he stays in a joint family. He is in service in IFFCO, a Government of India Enterprise. He has deposed that the petitioner faces financial constraints in maintaining herself as well as her second son. 10. The respondent has examined only himself as a witness. 11. In cross-examination he has deposed that he stays in a joint family. He is in service in IFFCO, a Government of India Enterprise. He has deposed that the petitioner faces financial constraints in maintaining herself as well as her second son. 10. The respondent has examined only himself as a witness. 11. R.W.1 Sarferaj Alam is the respondent who has stated about solemnization of his marriage with the petitioner and the birth of a child named Md. Shad. Due to interference by the father and other family members of the petitioner in their domestic life the relationship between him and the petitioner soured. On 7.9.2011 the father and other relatives of the petitioner came to his house and in his absence committed assault upon the other family members present and left with the petitioner who was pregnant leaving behind the handicapped child Md. Shad. In such context he had filed a case being Complaint Case No.1494 of 2011. The petitioner had left the child Md. Shad on account of his disability and only in order to disturb him, she has filed the instant case. In view of the efforts made by him and his family members and by administering proper treatment Md. Shad has come out of the category of a disabled child. The petitioner does not have any independent source of income and is dependent upon the maintenance amount as ordered in Maintenance Case No. 210 of 2011. He is a motor mechanic by profession and capable to look after the welfare of Md. Shad. He has stated that Md. Shad is looked after by his four brothers and parents who adore him and are affectionate towards him. At present Md. Shad studies in an English Medium School at Ranchi and he has kept no stone unturned in looking after his welfare. In cross-examination he has deposed that Md. Shad studies in Class-I in Angel English Medium School. Md. Shad had a disability on his left leg but with treatment he has fully recovered. 12. It has been submitted by Mr. Ashutosh Anand, learned counsel appearing for the respondent/appellant herein that the petitioner has failed to make out any ground for custody of the child Md. Shad. It has been submitted that the petitioner had left Md. Md. Shad had a disability on his left leg but with treatment he has fully recovered. 12. It has been submitted by Mr. Ashutosh Anand, learned counsel appearing for the respondent/appellant herein that the petitioner has failed to make out any ground for custody of the child Md. Shad. It has been submitted that the petitioner had left Md. Shad when he was aged 1 ½ years and it has been the respondent who has taken care of the child all these years, has admitted him in a school and has also got him treated for his disability which has been cured by now and therefore it is the respondent who deserves the custody of the child. It has further been submitted that the respondent has not married again as has falsely been alleged. The respondent stays in a joint family and everyone showers affection upon Md. Shad and being brought up in a conducive atmosphere it would be an impossibility for the child to adjust to the new surroundings if the order of the learned trial court is upheld. 13. Mr. Rohit Sinha, learned counsel appearing for the petitioner / respondent herein has submitted that the petitioner is the mother of Md. Shad and she was forced to leave her matrimonial house on account of compelling circumstances and Md. Shad was not allowed to accompany her to her parents house. It has been submitted that there are a spate of cases between the petitioner and the respondent and the atmosphere in the house of the respondent is not at all conducive to the growth and development of Md. Shad, more so when the respondent has solemnized a second marriage and the welfare of the child will be at perils if the respondent continues to have such custody and therefore it has been submitted that the impugned judgment does not deserve any interference. 14. We have heard the learned counsel for the respective sides and have also perused the lower court records. 15. The petitioner is the mother of the child Md. Shad and according to her she was compelled to leave her matrimonial house due to the mental and physical torture she had faced at the hands of the respondent and his family members for not fulfilling the illegal demand of Rs.2 Lakhs. The respondent has denied such allegation. 15. The petitioner is the mother of the child Md. Shad and according to her she was compelled to leave her matrimonial house due to the mental and physical torture she had faced at the hands of the respondent and his family members for not fulfilling the illegal demand of Rs.2 Lakhs. The respondent has denied such allegation. However, what appears to be admitted is that from 7.9.2011 the petitioner is not residing with the respondent at her matrimonial house, whatever be the reasons. The petitioner had instituted a case of maintenance, a case relating to demand of dowry and torture as well as a case of bigamy on account of the respondent solemnizing a second marriage with Seema Perween. The petitioner had also instituted a case for custody of the child Md. Shad who was 1 ½ years old at the time when she had left / ousted from her matrimonial house and the said case being Guardianship Case No.22 of 2011 was dismissed due to lack of territorial jurisdiction and finally the present Suit for custody had been filed by the petitioner. There has been no laches or delay on the part of the petitioner seeking custody of the child. The evidence of the respondent (RW-1) reveals that there have been no efforts taken by the respondent in imparting proper education to the child as he seems to reading in Class-I at the age of 9 years. However, on perusal of the order dated 4.11.2020 of this Court reference has been made to the report of the Principal, Angels World School, Ranchi wherein an impression was given that the child was not doing well in the school and therefore he was advised to shift to some other school. It also appears that the child Md. Shad has taken admission in City Public School, Hindpiri, Ranchi in Class-IV and is regularly attending online classes and had also fared well in the examination. This would suggest that the respondent has taken all efforts to maintain the child. So far as the financial aspects are concerned, the respondent is a motor mechanic and stays in a joint family with his brothers and parents. The petitioner on the other hand is primarily dependent on the father and as per her own saying, she runs a boutique in the house from which she earns an amount of Rs. 2500/-per month. So far as the financial aspects are concerned, the respondent is a motor mechanic and stays in a joint family with his brothers and parents. The petitioner on the other hand is primarily dependent on the father and as per her own saying, she runs a boutique in the house from which she earns an amount of Rs. 2500/-per month. The younger son stays with the petitioner and his expenses are borne out from the maintenance amount and the meager sum of money the petitioner earns. The respondent it seems is better equipped financially to maintain the child. Irrespective of the financial condition of the parties what would gain prominence is the welfare of the child. The respondent has looked after the child since he was one and half years old and all these years he has single handedly raised the child. Uprooting the child from the surrounding he is adapted to from his birth and placing him in a different pedestal with new faces and unknown surroundings would not be conducive for the overall growth and development of the child. On the contrary his welfare would be greatly affected, more so when the child Md. Shad is now aged 14 years and will definitely have adaptive issues in a new scenario. The learned trial court though has accepted the endeavours taken by the respondent in getting the child treated and giving him proper education but has at the same time observed that the absence of the mother reflects poorly in the development of his personality. The other factor which has weighed in the mind of the learned trial court is of the respondent solemnizing another marriage which would further bolster the claim of the petitioner for custody of the child. These aspects highlighted by the learned trial court are mere surmises as there is nothing in support of such finding. Mere presence of a stepmother cannot, in all circumstances, be considered to be detrimental to the need of a child. The respondent has taken care of the child since its infancy and in the circumstances narrated above the welfare of the child shall be best handled if his custody continues to be remained with the respondent. 16. Mere presence of a stepmother cannot, in all circumstances, be considered to be detrimental to the need of a child. The respondent has taken care of the child since its infancy and in the circumstances narrated above the welfare of the child shall be best handled if his custody continues to be remained with the respondent. 16. We, therefore, on the basis of the discussions made herein above, set aside the judgment dated 17.08.2019 passed by Shri Nalin Kumar, learned Principal Judge, Family Court, Ranchi in Original Suit No.514 of 2017. However, the petitioner/respondent herein is permitted to meet the child Md. Shad once in a month, preferably on the last Sunday of the month at a mutually agreed place but not the matrimonial house of the petitioner. Both the parties are expected to cooperate in such meetings considering the fact that it is the welfare and all round growth and development of the child Md. Shad which is at stake. 17. This appeal stands allowed.