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Monday, December 23, 2013

Muslim Law sec. 352 of the Mahomedan Law - custody of minor daughter - Divorced wife on her remarriage can not loose the custody of minor daughter as per personal law- child from the beginning with the mother - father can not claim the custody of child against her will on the ground that the divorced mother remarried - lower court rightly dismissed the petition - appeal was dismissed by high court = Saif ul Islam Habeeb Ali....Appellant Asma Begum.... Respondent = published in judis.nic.in/judis_andhra/filename=10414

Muslim Law sec. 352 of the Mahomedan Law - custody of minor daughter - Divorced wife  on her remarriage can not loose the custody of minor daughter as per personal law- child from the beginning with the mother - father can not claim the custody of child against her will on the ground that the divorced mother remarried - lower court rightly dismissed the petition - appeal was dismissed by high court =

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 Suprme 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.

THE HON'BLE SRI JUSTICE R.SUBHASH REDDY AND THE HON'BLE SRI JUSTICE A.V.SESHA SAI              

FAMILY COURT APPEAL No. 278 OF 2013      

dated:11-10-2013

Saif ul Islam Habeeb Ali....Appellant          

Asma Begum.... Respondent  

Counsel for the Appellant: Sri K.Venu Madhav

Counsel for Respondent  : Sri Ali Farooque

<Gist :

>Head Note:

?Cases referred:
       
1. AIR 1983 A.P. 106
2. AIR 1952 Mad 280
3. AIR 1951 Cal 205
4. AIR 1985 All 217
5. AIR 1981 A.P. 1
6. 2008(6) ALD 105 (SC)
7. AIR 2009 S.C. 2821

THE HON'BLE SRI JUSTICE R.SUBHASH REDDY        
AND
THE HON'BLE SRI JUSTICE A.V.SESHA SAI      

FAMILY COURT APPEAL No. 278 OF 2013      

JUDGMENT: (Per Hon'ble Sri Justice R.Subhash Reddy)  
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.  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.  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  
others1 and the Judgment of the Madras High Court in the case of Mir Mohamed
Bahauddin  Vs.  Mujee Bunnisa Begum Sahiba2.  
        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 another3, Judgment of the Allahabad High Court in
a case of Mohd. Yunus  Vs.  Smt. Shamshad Bano4, Judgment of this Court in a
case of L.Chandran  Vs.  Venkatalakshmi and another5, Judgment of the Hon'ble
Supreme Court in a case of Nil Ratan Kundu and another  Vs.  Abhijit Kundu6 and
Judgment of the Hon'ble Supreme Court in a case of Smt. Anjali Kapoor  Vs.
Rajiv Baijal7.
        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 well-being 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.  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.
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.  Rajiv Baijal (7 supra), the Hon'ble Suprme 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 Suprme 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.
____________________________    
JUSTICE R.SUBHASH REDDY      

________________________  
JUSTICE A.V.SESHA SAI  
11th October, 2013

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