Bombay High Court
Imran Khan Ali Shah Khan vs Sobiya Tabassum Imran Khan on 20 April, 2016
Bench: S.V. Gangapurwala
1 FCA-20.15-II
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FAMILY COURT APPEAL NO. 20 OF 2015
WITH
CIVIL APPLICATION NO. 16056 OF 2015
WITH
CIVIL APPLICATION NO. 3520 OF 2016
Imran Khan S/o Ali Shah Khan,
Age: 32 years, Occ: Service,
R/o: Iqbal Nagar, Parbhani,
Tq. & Dist. Parbhani ...APPELLANT
(Original Petitioner)
versus
Sobiya Tabassum W/o Imran Khan,
Age: 27 years, Occu; Household,
R/o : C/o Mohd Ibrahim, Near Peer
Burhan Chowk, Galli No. 16, Peer Burhan
Nagar, Nanded, Tq. & Dist. Nanded ...RESPONDENT
(Original Respondent)
.....
Mr. G.R. Syed, Advocate for appellant
Mr. R.B. Narwade Patil, Advocate for respondent
.....
CORAM : S. V. GANGAPURWALA AND
K.K. SONAWANE, JJ.
DATED : 20 th APRIL, 2016.
ORAL JUDGMENT : ( Per : K.K. Sonawane, J.)
1. This appeal is directed against judgment and order dated 31 st
October, 2015, passed by learned Judge, Family Court, Nanded, in
Petition No. D-03 of 2014, rebuffing the relief of custody of minor son,
namely, "Umarkhan" claimed under section 25 of the Guardians and
Wards Act, 1890 (for the sake of brevity hereinafter referred to as "Act
of 1890").
2 FCA-20.15-II
2. It is not in dispute that parties to the proceeding are governed
by Mohammedan Law. The appellant - original petitioner was married
with respondent on 28-03-2010 as per the Muslim rites. Appellant was
in service as Headmaster in the school at Manwat. He used to travel
daily from the place of his residence at Parbhani to place of avocation
at Manwat. After the marriage, respondent - wife joined company of
husband for cohabitation. During wedlock, she begotten one male child
on 14-03-2011 from the appellant - husband. It has been alleged on
behalf of respondent - wife that since marriage she was being
harassed and maltreated by her husband and in-laws on one or other
pretext. There was marital discord in between the spouses and since
delivery respondent - mother was residing separately with her minor
son "Umarkhan" from appellant-husband. There were efforts for
reconciliation in between the spouses. But, all efforts did not evoke
result. At last appellant husband pronounced "Talaq" in presence of
Quazi and witnesses. The copy of "Talaqnama" as well as cheque of
Meher amount were sent to the respondent - wife, which she received
it on 20-01-2012 through RPAD. Eventually, after "Talaq" marital
relations in between appellant and respondent came to an end.
3. After divorce, in between spouses, appellant performed second
marriage with one Nazia. She has also given birth to two children from
appellant - husband. Respondent - estranged mother and her minor
son started residing with her parents at Nanded. In the meanwhile,
taking recourse of section 25 of the Act of 1890, the appellant-
petitioner moved application for custody of minor son "Umarkhan."
3 FCA-20.15-II
Pending application, appellant carried out amendment and blamed the
respondent that she has performed second marriage with one stranger
Shaikh Javed. Therefore, she is disqualified for custody of minor son
"Umarkhan".
4. In response to notice of the petition, respondent - wife appeared
in the proceeding before Family Court, Nanded and vociferously
opposed the contentions putforth on behalf of appellant. She denied all
allegations and contended that since marriage while cohabiting at her
matrimonial home, she was being maltreated and harassed by
appellant - husband and her in-laws. She had also initiated
proceedings under the provisions of Protection of Women from
Domestic Violence Act, 2005 etc. The subsistence allowance was also
granted for herself and minor son 'Umarkhan". But, the appellant did
not deposit any maintenance amount nor he had taken care of minor
child "Umarkhan" since his birth. According to respondent, in view of
provisions of Mohammedan Law, mother is entitled for custody of male
child till he attained age of seven years. Respondent - wife admitted
the circumstances that she had performed second marriage with
Shaikh Javed. But, their marital relations became strained, which
ultimately resulted into dissolution of marital tie. She had obtained
divorce from second husband - Shaikh Javed and once again she
started residing with her parents at Nanded. Therefore, no question
arises for disqualification of the respondent on account of her second
marriage. Hence, she requested to dismiss the petition.
4 FCA-20.15-II
5. In order to prove the claim, appellant - father examined himself
vide (Exhibit-30). He has also adduced evidence of his mother Nasim
Akhtar (Exhibit-39). He relied upon the various documents produced on
record comprising divorce deed (Exhibit-33), marriage certificate
(Exhibit-31), marriage certificate of respondent with Shaikh Javed
(Exhibit-34) etc. In refuttal, respondent examined herself vide (Exhibit-
51). Respondent stated that she had performed second marriage with
Shaikh Javed, but there were marital discord between the spouses.
Therefore, she had taken divorce from him. According to respondent-
mother, she is residing with her minor son "Umarkhan" at her parents'
home. She is taking every care of son "Umarkhan" who is studying in
the school. She has produced relevant documents of School Progress
Card of her minor son as well as his medical prescription etc. on
record.
6. Learned trial court appreciated the entire oral and documentary
evidence adduced on record and arrived at the conclusion that in view
of paramount consideration of welfare of child, it would be unjust and
improper to deliver minor son 'Umarkhan" in the custody of the
appellant - father. The learned trial court rendered findings that the
appellant is not entitled for relief of custody claimed under section 25
of the Act of 1890 and rejected the petition by impugned judgment and
order, which is agitated in this appeal.
7. We have heard learned Counsel Mr. Syed for appellant and Mr.
Narwade, Patil appearing for respondent. We have also delved into
oral and circumstantial evidence adduced on record. Admittedly
5 FCA-20.15-II
appellant filed application under section 25 of the Act of 1890, which
would read as under:
"25. Title of guardian to custody of ward -
(1) If a ward leaves or is removed from the custody of a
guardian of his person, the Court, if it is of opinion that it
will be for the welfare of the ward to return to the custody of
his guardian, may make an order for his return, and for the
purpose of enforcing the order, may cause the ward to be
arrested and to be delivered into the custody of the guardian.
(2) .....
(3) ....."
8. The words "may make an order" incorporated in aforesaid
provision of section 25, itself demonstrate that enquiry should be held
by the Court before passing any order for custody of the child. In the
instant case, undisputedly the parties are governed by the provisions
of Mohammedan Law. The appellant claimed custody of minor son
"Umarkhan" being his natural guardian as father. But, the law
contemplates that while determining issue of custody of minor child
under section 25 of the Act mere status of father as natural guardian
would not itself be significant for favourable order in the proceedings.
But, welfare of the child would be the prime consideration to determine
issue of his/her custody. It is settled rule of law that issue of custody
of the child is not just like claim to property but it is a matter of trust
for well-being of the child.
6 FCA-20.15-II
9. Now, turning to the factual aspects of the matter in hand, it is
evident that minor child "Umarkhan" is born on 14-03-2011. Obviously,
he is below age of seven years. The provisions of section 352 of the
Mohammedan Law does not permit father for custody of male child
until he attained age of seven years and in case of of female child until
she attained puberty. The Section 352 from Mulla's Principles on
Mohammedan Law, 19th edition would be reproduced as below:
"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 through she is divorced by the father of the
child(e), unless she marries a second husband in which
case the custody belongs to the father (f).
10. Undisputedly, minor child "Umarkhan" is born on 14-03-2011
and he is below age of seven years. His mother i.e. respondent Sobiya
Tabassum is entitled for custody being his guardian until he has
completed age of seven years. Provisions of Section 354 of
Mohammedan Law provides disqualification of mother to custody of the
child on the ground of her remarriage with stranger. Section 354 of the
Mohammedan Law contemplates as under :
"354: Females when disqualified for custody - A
female, including the mother, who is otherwise entitled to
the custody of a child, loses the right of custody -
7 FCA-20.15-II
(1) if she marries a person not related to the child within the
prohibited degrees (Ss 260-261 e.g. a stranger(n), but the
right revives on the dissolution of marriage by death or
divorce (o);
(2) .....
(3) .....
(4) ..... "
11. It is worth to mention that principle propounded in sections 352
and 354 of the Mohammedan Law could not be read in isolation, but it
should be conjointly considered with provisions of the Guardians and
Wards Act, 1890, which vests discretion in the Court to issue requisite
directions about custody for well beings of the ward.
12. Learned counsel Mr. Syed for appellant vehemently submitted
that respondent - mother has performed second marriage with stranger
Mr. Shaikh Javed, therefore, she is disqualified under section 354 of the
Mohammedan Law for custody of minor son "Umarkhan". Moreover, he
submitted that the appellant is employed as Headmaster in the school.
He is also office bearers of the educational Institution. His other family
members are in Government service. The appellant has higher social
and economic status than the respondent. He is well capable to
maintain the child in good and proper manner. It is essential to deliver
the child in the custody of father to safeguard his welfare.
13. Per contra, learned counsel for respondent Mr. Narwade Patil,
assailed that allegations of second marriage of respondent for custody
of minor child is unsustainable and baseless. It is true that respondent
8 FCA-20.15-II
performed second marriage with one Shaikh Javed, but there was
divorce between them following strained marital relations. The Second
husband Shaikh Javed has given "Talaq" to respondent, and after
divorce she accompanied with her minor son "Umarkhan" started
residing with her parents at Nanded. Therefore, she would not be
disqualified under section 354 of the Mohammedan Law. Learned
counsel further explained the circumstances at the house of appellant.
He asserted that there were two children of the appellant begotten from
his second wife. Appellant used to attend the place of his service at
Manwat daily by traveling from his residence at Parbhani. It would be
difficult for the appellant to spare sufficient time to look after the child.
The second wife Nazia Sultan of the appellant did not step into witness
box for cross-examination to ascertain her conduct and demeanor to
safeguard the welfare of child. According to learned counsel Mr.
Narwade, Patil, respondent-mother would be the best guardian of minor
son "Umarkhan". she was looking after the child since his birth. The
School Progress Report of 'excellent' remark fortify the circumstances
of welfare of child in the custody of mother. The minor son "Umarkhan"
is habituated to the environment prevailing at the house of parents of
respondent. The parents indulged in hotel business. They have good
source of income. Therefore, learned counsel requested not to nod in
favour of appellant.
14. It is not denied that respondent-mother performed second
marriage with stranger Shaikh Javed. But, it has categorically stated
that the second husband had given "Talaq" to respondent following
9 FCA-20.15-II
strain relations and after divorce she took shelter at the house of
parents. Respondent-mother was cross-examined on behalf of
appellant on the vital issue of second marriage. But, there was no
arduous cross-examination on this issue sufficient to bring on record
circumstances favourable to the appellant. In short, factum of second
marriage would not render respondent - mother disqualified for custody
of the child. It would be reiterated that welfare of the child is
paramount consideration while dealing with the application for custody
of minor child. It is explicit that Mohammedan Law has not taken any
pedantic view to disqualify for the custody of child, at the very
moment, she gets remarried. The principles of Mohammedan Law like
other Personal Law would never be expected so harsh to ignore the
welfare of minor child. It seems that principles of Mohammedan Law is
rests on practical experience based on consideration which are
conducive to the proper growth of the child.
15. We have already mentioned that respondent-mother has been
divorced by her second husband and she is residing with her parents.
Therefore, provisions of section 354 of the Mohammedan Law has no
application to hold respondent mother disqualified for custody of minor
son 'Umarkhan". The question of treatment to child by step father
would not arise in this case, as respondent mother has already obtained
divorce from second husband. These facts were not put into
controversy seriously on behalf of appellant. Moreover, School Progress
Card and other relevant circumstances on record reflects that minor
"Umarkhan" is safe and sound in the custody of mother being his
10 FCA-20.15-II
guardian. No doubt, that since birth in the year 2011, minor child
"Umarkhan" is in the custody of mother. Now, he is near about four to
five years old. The minor child of such four/five years old would feel
psychologically more secure and safe in the company of mother rather
than father. It cannot be ignored that no one can compete with mother
in that respect. Therefore, we do not find it justifiable to cause
disturbance to minor child "Umarkhan" for his custody.
16. It is an admitted fact that appellant performed another marriage
and he has two children from his second wife Nazia. The appellant is
residing with sister and old aged parents. Appellant used to travel daily
from Parbhani to Manwat for attending employment. In such
circumstances, it would be hard and difficult for the appellant to find
out sufficient time to look after minor son 'Umarkhan". He also has
obligation to take care of his other two children of second wife. Learned
trial court has correctly appreciated the circumstances about old aged
parents of appellant and paucity of time to give proper attention to son
"Umarkhan". The absence of second wife of the appellant for cross-
examination in the proceeding to ascertain her inclination to take care
of the child also create serious flaw in the contention of the appellant.
The rule of law prescribed that the Court must have regard to the
welfare of the child which is paramount consideration while dealing with
application for his/her custody.
17. Having regard to the facts of present case, there is no doubt that
welfare of the minor child "Umarkhan" is safer with respondent-
mother. The appellant - father used to travel from Parbhani to Manwat
11 FCA-20.15-II
for his employment and remained out of the house for most of the time
of the day. It would be inappropriate leaving minor child "Umarkhan"
to the care of second wife of the appellant instead of natural mother.
Considering the four/five years age of minor "Umarkhan" certainly he is
in need of love and affection of his natural mother.
18. In such circumstances, we do not prefer to cause interference in
the impugned decree passed by the learned trial court. There is no
substance in the appeal filed on behalf of the appellant for custody of
minor son. Learned trial Court has correctly appreciated factual score in
its proper perspective for paramount consideration of the welfare of
child. Hence, the appeal being devoid of merit deserves to be
dismissed. Accordingly, the appeal stands dismissed. No order as to
costs.
19. In view of disposal of appeal, pending civil applications do not
survive and stand disposed of accordingly.
Sd/- Sd/-
[ K. K. SONAWANE, J.] [S. V. GANGAPURWALA, J.]
MTK
***
