Raju @ Yunus S/O Ahmed Punjani vs Mohd. Imran Isani S/O Noor Mohd. ...
2016 Latest Caselaw 4016 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             : NAGPUR BENCH : NAGPUR.




                                                                     
                           APPEAL AGAINST ORDER NO. 5 OF 2015

    Raju @ Yunus S/o Ahmed Punjani, 
    Aged about 38 years, Occ : Business, 




                                                                    
    R/o Ward No. 4, Near Shelgaon Para, 
    Dongaon, Taq - Mehkar, 
    Dist - Buldhana.                                                                     ... Appellant




                                                     
             // Versus //  
                                  
    Mohd. Imran Isani S/o Noor Mohd Isani, 
    Aged about 32 years, Occ : Business,
    R/o. Bhandegaon, Tq. Darwa, 
                                 
    District Yavatmal.                                                                  ... Respondent
    --------------------------------------------------------------------------------------------------------
    Shri R. S. Akbani, Advocate for the appellant 
    Shri Abdul Subhan with Shri Firdos Mirza, Advocates for the respondent
      

    --------------------------------------------------------------------------------------------------------
                                                        CORAM :  PRASANNA B. VARALE, J.

                                                        DATE     :  21-7-2016.

    ORAL ORDER :

Heard Shri R. S. Akbani, learned counsel appearing for the

appellant and Shri Abdul Subhan with Shri Mirza, learned counsel for the

respondent.

2. By the present appeal, the appellant is challenging the order

passed by the learned District Judge - 1, Darwha, District Yavatmal dated

30-6-2014 thereby allowing the application moved at the instance of the

present respondent seeking custody of a minor child (daughter) under

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Section 8 and 25 of the Guardians and Wards Act.

3. Brief facts giving rise to the present appeal can be summarized

as follow :

The appellant is the maternal uncle of the minor child whose custody

is sought for and the respondent is the father of the minor child. Marriage

between the sister of the appellant and the respondent was solemnized

sometime in June, 2009. Couple was blessed with the child on 14-10-2011.

The sister of the appellant and the mother of the child committed suicide on

31-8-2012. It is the case of the appellant that the child was in the

neighbouring house when the appellant visited the house on the

information received that his sister committed suicide and took a child

along with him. Since then, the child is with the appellant and in the

company of grandparents of the child. The Crime No. 72/2012 was

registered against the respondent and other family members. The

respondent submitted an application before the learned District Judge - 1,

Darwha for seeking custody of the child, namely, Javeriya under Section 8

and 25 of the Muslim Law. It was submitted by the respondent in his

application that as the wife of the respondent committed suicide on

31-8-2012 by setting herself on fire and though the respondent made an

attempt to extinguish the fire, his attempts failed. In the said incident, the

respondent also suffered burn injuries. He was admitted in the hospital.

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The respondent was arrested in connection with Crime No. 72/2012

registered at Darwha Police Station and as soon the respondent was

enlarged on bail, he made an enquiry about his minor daughter and found

that she is illegally taken in custody by the appellant and her grandparents.

It was submitted in the application that the respondent, being father of the

child, is the natural guardian and the respondent is in a joint family. It was

further submitted that the respondent, being the natural guardian, is duty

bound to take care of the child in all respect such as her education and her

well being. It was submitted in the application that the child being of a

tendered age, the respondent is deeply concerned with her education and

health. It was further submitted in the application that as the child was

illegally taken in custody by the appellant and the grandparents, the

respondent apprehends that an attempt would be made to impress upon the

child that the respondent is responsible for the suicide of the mother of the

child and the same would result in a ill-will against the respondent. Thus

the respondent with the grounds raised in the application prayed for orders

regarding the custody of the minor child. The application was opposed by

the appellant. It was submitted that on receiving information, when the

appellant rushed to the matrimonial house of his sister, he found that the

care of the child was not being taken properly and the child was in need of

proper care. It was further submitted that the respondent with an ulterior

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motive submitted an application for search of the child under Section 97 of

the Code of Criminal Procedure. It was further submitted that the appellant

being the maternal uncle and the other members of the family of the

appellant having love and affection towards the minor child were taking

each and every care of the welfare and well being of the child. It was

further submitted that due to the ill treatment of the respondent and due to

the consistent demand for dowry, the sister of the appellant committed

suicide. It was further submitted that on receiving information of death of

his sister, when the appellant rushed to the house of his sister, he found

that the minor child was in a neighbouring house and the minor child was

not keeping good health. It was submitted that the respondent though a

father of the child whereas the appellant and the other family members

were taking care of the child and in future also, the appellant and the family

members would take each and every care of well being of the child. On

these rival contentions of the parties and by hearing the parties and also by

appreciating the material in the form of the oral evidence tendered by the

parties, the learned District Judge allowed the application.

4. Shri Akbani, learned counsel for the appellant vehemently

submitted that the learned District Judge grossly erred in arriving at the

conclusion. It was the submission of Shri Akbani, learned counsel that the

learned District Judge only on the consideration that the respondent is a

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father of the child, allowed the application and failed to appreciate that the

respondent was subjected to initiation of the criminal proceedings. Learned

counsel for the appellant submitted that for untimely and unnatural death

of the sister of the appellant, criminal case for Crime No. 72/2012 was

registered against the respondent for committing the offences punishable

under Sections 498A and 306 read with Section 34 of the Indian Penal Code

and the same is pending. It is further submitted that as per the instructions

of the appellant, the charge-sheet is also filed. Shri Akbani, learned counsel

further submitted that in spite of these facts, the learned District Judge

observed that there are no serious charges against the respondent. Learned

counsel for the appellant further submitted that there is no dispute on the

principle that the paramount consideration would be the welfare of the

child is duly taken care of by the appellant and his other family members. It

was submitted by the learned counsel that on receiving the information of

death of his sister, when the appellant rushed to the house of his sister, he

found that there was nobody in the house and the child was in the

neighbouring house. Learned counsel for the appellant further submitted

that the family of the appellant is a joint family. He further submitted that

the appellant is a vendor of sweets and the sister of the appellant was a

teacher. He further submitted that the appellant is married and there is no

issue out of the wedlock. Learned counsel for the appellant further

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submitted that as the joint family of the appellant consists of his father,

mother, paternal aunt and wife, the child would in atmosphere of love and

affection in the family. It was thus the submission of learned counsel for

the appellant that the learned District Judge ought not to have allowed the

application. Learned counsel for the appellant in support of his submissions

placed reliance on the judgments of the Apex Court and this Court reported

in AIR 2009 SC (Supp) 732 in the matter of Nil Ratan Kundu and anr.

Vs. Abhijit Kundu and 2013(1) Mh.L.J. 700 in the matter of Angelina

Miranda Vs. Lisbon Johan Miranda respectively. Shri Akbani, learned

counsel in support of his submission that the respondent is charged for the

offence punishable under Sections 498A, 306 read with Section 34 of the

Indian Penal Code and the appellant being maternal uncle of the child is

seeking custody of the child and the facts are being identical referred to

paragraph no. 72 of the judgment in the matter of Nil Ratan Kundu and

anr. Vs. Abhijit Kundu.

5. Per contra, Shri Abdul Subhan, learned counsel for the

respondent supported the order impugned in the present appeal. The first

limb of submissions of Shri Subhan, learned counsel was the appellant

having no locus could not have approached the Court below for seeking

custody of the child. His another limb of submission was the respondent,

being father, is the natural guardian of the child. He further submitted that

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the appellant miserably failed before the Court below to establish his

case that when the death of the sister of the appellant occurred, the child

was in the neighbouring house and was taken in custody by the appellant.

Shri Subhan, learned counsel further submitted that the respondent himself

suffered the burn injuries and was immediately admitted in the hospital and

he was under treatment in the hospital. On 25-9-2012, the respondent was

discharged from the hospital. On receiving the information, child was taken

in custody illegally by the appellant and the family members of the

appellant. Immediately, respondent availed the remedies by filing an

application for search under Section 97 of the Code of Criminal Procedure

and subsequently, an application for seeking custody of the child. It is

submitted by the learned counsel for the respondent that though the

appellant claimed that he is in a sound financial position to take care of the

child, the material brought on record and appreciated and scrutinized by

the Court below revealed that the appellant was not financially capable of

taking care, well being and welfare of the child. On the contrary, it is the

respondent who is financially well off having his independent own business.

Case of all the basic needs, such as, the education of the child, health care

of the child and well being of the child, the respondent is certainly in

better position for making all arrangements, such as, admitting the child

in better school and providing better facilities including health care.

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Shri Subhan, learned counsel submitted that the documents placed on

record along with the appeal, namely, certificate issued by the Sarpanch,

Gram Panchayat, Dongaon dated 1-1-2015 itself shows that the minor child

is registered under the Anganwadi Seva Yojna and the child was a

beneficiary under the scheme for education and the meals as well as the

supplementary foods. The certificate shows that the appellant was referred

to as guardian for the child. Thus, the submission of Shri Subhan, learned

counsel was the appellant was certainly not in a position to take care of the

child either for education or for other basic needs.

6. Shri Subhan, learned counsel further submitted that the

respondent is facing charge of 306, 498A read with Section 34 of the Indian

Penal Code as it is the case of the prosecution that the victim i.e. wife of the

respondent Shaminabano committed suicide. Shri Subhan, learned counsel

then by inviting my attention to the oral evidence of the appellant

submitted that the appellant in his cross-examination admitted that he is

indulged in selling sweets and chocolates and for this purpose, he requires

touring at the nearby villages. It is further admitted by the appellant in his

testimony that his parents are not residing with him but they are residing at

another village, namely, Leni and they are running a grocery shop at Leni. It

is further admitted in the cross-examination that sister of the appellant is

working as a teacher and is a divorcee. Thus, the submission of Shri

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Subhan, learned counsel was on comparative assessment of the material,

the respondent certainly stand at a better footing and is capable of taking

care of welfare and well being of the child. Shri Subhan, learned counsel

submitted that the appellant is partial physically disabled person and as

such, he may not be in a position to take complete and full care of the child,

thus, even on the aspect of physical capacity, the respondent is on the better

footing is the submission of Shri Subhan, learned counsel.

7. Shri Subhan in support of his submissions relied on the

judgment of the Supreme Court in the case of Mausami Moitra Ganguli

Vs. Jayant Ganguli reported in (2008) 7 SCC 673 and the judgment of this

Court in Wahidunissa Begum w/o Abdul Wahid and anr. Vs. Shaikh

Abdulla s/o Sk. Maheboob reported in 2000(1) Mh.L.J. 136. In the

matter of Wahidunissa Begum w/o Abdul Wahid and anr. Vs. Shaikh

Abdulla s/o Sk. Maheboob, custody of child was sought for by the

grandparents and the respondent therein i.e. father of the child was not

only charged for the offences punishable under Sections 498A, 306 and

304-B read with Section 34 of the Indian Penal Code but also was charged

for the offence punishable under Section 302 of the Indian Penal Code. He

further submitted that on the paramount consideration of the welfare of the

child, the appeal be dismissed and the order of custody to the father of the

child be maintained.

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8. As the facts of the case and rival contentions as referred to

in detail above, the only issue emerges is about sustainability of the

order under challenge on the backdrop of custody of the child. As stated

above, the marriage between the sister of the appellant and the respondent

was solemnized in June, 2009 and the couple was blessed with a child on

14-10-2011. The child is of tendered age and hardly is of 5 years. The

ground raised by the appellant in opposition to the application submitted by

the respondent seeking custody of the child and also before this Court is the

respondent is charged for the offences and the learned District Judge failed

to appreciate the material presented before him. Shri Akbani, learned

counsel submitted before this Court that the appellant, on receiving

information about death of his sister, immediately rushed to the

matrimonial house of his sister and found that there was nobody in the

house and the child was in a neighbouring house, as such, the appellant

picked up the child and since then, the child was in custody of the

appellant and the grandparents. On the backdrop of this submission, it

would be interesting to note the oral evidence tendered by the appellant

before the learned District Judge. The appellant failed to even refer to the

name of the neighbouring lady from whom he picked up the child. The

appellant in his cross-examination admitted that he was unable to state in

which hospital, the child was born. The appellant admitted in the cross-

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examination that he is indulged in business of selling sweets and chocolates

and for that purpose, he requires touring at various places. He admits that

his parents are residing at different village, namely, Leni and they run a

grocery shop there. The respondent submitted in his application and

reiterated before this Court that he is running independent business of

production of cold drinks. No contra material is brought on record by the

appellant to counter this fact. Thus, on the aspect of the finding capability,

there was merit in the submission of Shri Subhan, learned counsel for the

respondent. This aspect will have to be considered for the reason that it

lead to assessment of the paramount consideration i.e. the welfare of the

child. The material which is placed on record referred to by learned counsel

Shri Subhan also needs consideration, namely, the certificate issued by the

Sarpanch. As stated above, the certificate clearly shows that the minor child

is registered being the beneficiary under the Anganwadi Seva Yojna and the

child was a beneficiary under the scheme for education and the meals as

well as the supplementary foods. Thus, if the material placed on record in

the form of certificate issued by the Sarpanch coupled with oral testimony

of appellant is perused, it clearly show that the appellant himself is not

sound financially. In that case, the appellant would certainly not in a

position to provide basic facilities to the minor child. On the other hand the

respondent firstly being the father i.e. natural guardian and secondly having

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a sound financial position would be in a position to provide all basic

amenities for the welfare and well being of the minor child. Though

learned counsel Shri Akbani made an attempt to submit that the order

passed by the learned District Judge is erroneous on the ground that the

learned District Judge observed that there are no serious charges against the

respondent whereas the respondent is charged for the offences punishable

under Section 498A and 306 read with 34 of the Indian Penal Code. On

perusal of the judgment and order, the learned District Judge did not

observe that there are no serious charges against the respondent. The

observations of the learned District Judge that "admittedly the Javeriya was

taken away after the death of her mother by the non-applicant maternal uncle

Raju from the custody of applicant. That time she was maintained well. There

are no such serious allegations that applicant did hate Javeriya." Other

observation is "there is no serious allegation of vices against him (against the

respondent herein and the applicant before the learned District Judge)."

Therefore, learned District Judge was assessing the claim on the backdrop

of the capability and capacity of the claimant so as to consider the aspect of

welfare and well being of the child. As the matter revolves around the

custody of the child, it will not be out of place to refer to one of the latest

judgment of the Apex Court in the case of Roxann Sharma Vs. Arun

Sharma reported in (2015) 8 SCC 318. It will be useful for our purposes

13 jg.ao5.15.odt

to refer to the aspect of guardianship considered by the Apex Court. The

Apex Court by referring to the law dictionaries and relevant provisions

under various Acts, observed that :

"8. Guardianship postulates control over both the person as

well as the assets of a minor or of one and not the other. This is obvious from a reading of the definitions contained in Section 4 (2) of the Guardians & Wards Act, 1890 (G and W

Act) and Section 4(b) of the HMG Act which clarifies that

"Guardian" means a person having the care of the person of a minor or of his property or of both his person and

property. Section 9 contemplates the filing of an application in respect of the guardianship of the person of the minor and Section 10 specifies the form of that application. Section 12

deals with the power to make interlocutory order for

production of the minor and interim protection of his person and property. Section 14 is of importance as its tenor indicates that these controversies be decided by one court, on

the lines of Section 10 CPC which imparts preference of jurisdiction to the first court. Section 17 gives primacy to the welfare of the minor. Sub-section (2) thereof enjoins the

court to give due consideration to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor. Since Thalbir is of a very tender age, the advisability of determining his wishes is not relevant at the present stage; he is not old enough to form an intelligent reference. Section 25 covers the custody of a ward being removed from the custody of the guardian of his

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person, and adumbrates that if the Court is of the opinion that it will be for the welfare of the ward to return to the custody

of his guardian it shall make an order of his return."

In the present matter, initially, though this Court thought of interviewing

the child, but guided by the judgment referred to above in the case of

Roxann Sharma Vs. Arun Sharma (cited supra), considering the tendered

age of minor child i.e. hardly of 5 years of age, this Court thought it fit not

to interview the child.

9. Shri Akbani, learned counsel placed reliance on certain

judgments. In my opinion, considering the factual aspects referred to above

in the present case, the judgments relied on by Shri Akbani, learned counsel

are of no help to him.

10. Shri Subhan, learned counsel for the respondent was justified

in placing reliance on the judgment of the Apex Court in the case of

Mausami Moitra Ganguli Vs. Jayant Ganguli (cited supra). The Apex

Court observed that :

19. The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably, the provisions of law

15 jg.ao5.15.odt

pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu

Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate

the vital factor of the welfare of the minor.

20. The question of welfare of the minor child has again to

be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and

other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no

doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the

court has to see primarily to the welfare of the child in

determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole

determining factor for the custody of the child. It is here that a heavy duty is cast on the court to exercise its judicial discretion judiciously in the background of all the relevant facts and

circumstances, bearing in mind the welfare of the child as the paramount consideration.

Thus, considering the circumstances, the Apex Court arrived at a conclusion

and observed under the circumstances and bearing in mind the paramount

consideration of the welfare of the child, we are convinced that the child's

16 jg.ao5.15.odt

interest and welfare will be best served if he continues to be in the custody

of the father.

11. Shri Subhan, learned counsel also placed reliance on the

judgment of this Court in Wahidunissa Begum w/o Abdul Wahid and anr.

Vs. Shaikh Abdulla s/o Sk. Maheboob (cited supra). In that matter, the

respondent- father was charged for the offences punishable under Sections

498A, 306, 304-B and 302 read with Section 34 of the Indian Penal Code.

A similar objection was raised in the matter of Wahidunissa Begum w/o

Abdul Wahid and anr. Vs. Shaikh Abdulla s/o Sk. Maheboob, namely, the

respondent was charged with a serious offences. Considering all the

relevant factors including the anxiety of the father to see that the child is

brought up properly and is properly educated and considering the fact that

child was of a tendered age, it would be appropriate age of the child to

channelise and develop love and affection and considering the background

of the father namely, the father was a Lecturer drawing handsome salary

whereas the grandparents being old aged, this Court dismissed the appeal

preferred by the grandparents upholding the orders passed by the trial

Court whereby the custody was directed to be handed over to the father.

12. As referred to above, the respondent as soon the incident of his

wife committed suicide was admitted in the hospital, thereafter was

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arrested and after enlarging on bail, submitted an application seeking

custody of the child. There is no material to suggest that prior to that

unfortunate incident, the applicant was ill-treating the child or was addicted

to some vices. Thus, considering all the material placed on record, in my

opinion, neither any error is committed by the learned District Judge nor

any illegality or perversity is found in the judgment and order impugned in

the present appeal. The appeal, being meritless, deserves to be dismissed.

The appeal is, accordingly, dismissed.

13. Shri Akbani, learned counsel prays for stay to the order of this

Court so as to avail the remedy of challenging the order of this Court before

the Apex Court. Shri Subhan, learned counsel opposes the prayer for stay.

14. Perusal of the record shows that on 9-1-2015, the interim order

was passed and the same was vacated for non appearance of the counsel.

The record further shows that interim relief was vacated for non appearance

of the learned counsel and on 30-6-2016, the appeal was fixed for final

disposal. The learned counsel for the respondent gave an undertaking to

this Court that till next date of hearing, the respondent shall not take

coercive steps. In view of these facts, the prayer for stay is rejected.

15. Shri Akbani, learned counsel in the alternative submitted that

the appellant and the grandparents of child have developed intimacy, love

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and affection towards the child and it would be difficult for them to part

with the custody of the child and the appellant and grandparents be

permitted to have visitation right. Shri Subhan, learned counsel fairly

submits that he has no objection if the appellant and grandparents attend

for visiting the child. Shri Subhan, learned counsel further submitted that

for visiting the child, it would be more convenient if a pre-intimation is

forwarded. Considering these aspects, it would be better if the Court fix the

visitation days so as to avoid inconvenience. It is submitted that so as to

avoid inconvenience of the parties and in view of the criminal proceedings

going on between the parties, it would be better if the visitation days are

fixed by this Court. The appellant and grandparents of the child are

permitted to visit the child on every second and fourth Sunday of the

month.

JUDGE

wasnik

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Uploaded by : Shri A. Y. Wasnik, P.A. Uploaded on : 28-7-2016