Iftekar S/O Shahezad Hussain And ... vs Vakil Ansari And Others
2021 Latest Caselaw 3668 Bom

                                    1   J. FCA-11-2017 + FCA-12-2017.odt



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

            FAMILY COURT APPEAL (FCA) NO.11 OF 2017
                             WITH
            FAMILY COURT APPEAL (FCA) NO.12 OF 2017

FAMILY COURT APPEAL (FCA) NO.11 OF 2017

1.       Iftekar s/o Shahezad Hussain,
         Aged about 28 years, Occ: Auto
         Rickshaw Driver,                              (Org. Respondents
                                                        ....... On R.A.)

2.       Afsana w/o Iftekar Hussain,
         Aged about 26 years, Occ: Household,

         Both R/o Plot No. 464, Yeshodhara
         Nagar, Nagpur.
                                                    ... APPELLANTS

        // Versus //

1.       Vakil Ansari,
         Aged about 48 years, Occ: Business,            (Org. Petitioners)


2.       Dr. Nikhat Vakil Ansari,
         Aged about 40 years, Occ: Doctor,


         Both R/o C/o In front of Hafz Bakery
         Mohsin Traders, Mominpura, Nagpur

                                                   ... RESPONDENTS

                                    WITH
            FAMILY COURT APPEAL (FCA) NO.12 OF 2017

1.       Iftekar s/o Shahezad Hussain,
         Aged about 28 years, Occ: Auto
         Rickshaw Driver ,                                (Org. Petitioners
                                                           ....... On R.A.)
2.       Afsana w/o Iftekar Hussain,



     ::: Uploaded on - 26/02/2021             ::: Downloaded on - 27/02/2021 00:46:45 :::
                                              2        J. FCA-11-2017 + FCA-12-2017.odt



         Aged about 26 years, Occ: Household,

         Both R/o Plot No. 464, Yeshodhara
         Nagar, Nagpur.
                                                                    ... APPELLANTS

        // Versus //

1.       Vakil Ansari,
         Aged about 48 years, Occ: Business,

2.       Dr. Nikhat Vakil Ansari,
         Aged about 40 years, Occ: Doctor,


         Both R/o C/o In front of Hafz Bakery
         Mohsin Traders, Mominpura, Nagpur                                (Org. Respondents)



3.       Muslim Ansari,
         Aged about 57 years, R/o Plot No.
         214, Abdul Hamid Nagar, Yashodhara
         Nagar Chowk, Nagpur.
                                                                   ... RESPONDENTS

-----------------------------------------------------------------------------------------
Ms. Shabana Diwan, Advocate for appellants
Mr. Massod Shareef, Advocate for respondent nos.1 and 2
Ms. Poonam Moon, Advocate for respondent no.3 in FCA No.12 of
2017
------------------------------------------------------------------------------------------------

                 CORAM :            A. S. CHANDURKAR AND
                                    N. B. SURYAWANSHI, JJ.

                 RESERVED ON :                           01/02/2021

                 PRONOUNCED ON :                         26/02/2021

JUDGMENT (Per : N. B. SURYAWANSHI, J.)

3 J. FCA-11-2017 + FCA-12-2017.odt

These two appeals fled under Section 19 of the

Family Courts Act, 1984 (for short, "the said Act") take

exception to the common judgment of the Family Court, Nagpur

in Petition No.D-31 of 2015 and Petition No.D-55 of 2015, by

which the Petition No.D-31 of 2015 fled by the appellants for

custody of the child "Ashman" was dismissed and Petition No.

D-55 of 2015 fled by the respondent nos. 1 and 2 for

appointing them as guardian of minor was decreed. Since both

these appeals challenge the common judgment, they are being

decided by this common judgment. For the sake of

convenience, the parties are referred by their frst names.

2. Petition No.D-31 of 2015 :

i) Iftekar and Afsana fled this petition under Section 25

of the Guardians and Wards Act, 1860 for grant of custody of

the child claiming that they were his biological parents. They

pleaded that they had a love affair for eight years and they got

married on 26.06.2013. The said marriage was performed

without the consent of their parents. In the meantime, four

years before their marriage, Iftekar was forcibly married with

Shabnam. From the wedlock with Shabnam, daughter Asmira

Fatema and son Izaan were born. Even after marriage of Iftekar

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and Afsana dated 26.06.2013, they were residing with their

respective parents. Afsana conceived from Iftekar. The fact of

the pregnancy was informed by Afsana to her parents when she

was six months pregnant. Then the Iftekar and Afsana

allegedly executed a marriage agreement (which was not

produced before the Family Court). On 30.08.2014, Afsana

delivered a son (hereinafter referred as "the child") at Meyo

Hospital, Nagpur, who at the time of birth was suffering from

jaundice. After discharge from the hospital, Afsana went to her

matrimonial home but on the very next day, her mother and

sister took her away along with the son, Iftekar went to

Amravati. Afsana was told that Iftekar had abandoned them.

She was further told that due to jaundice, the condition of the

child was critical. Her parents expressed their inability to

provide better medical treatment to the child. At that time, the

mental condition of Afsana was not proper and at the instance

of the parents, Afsana handed over custody of the child to Vakil

and Dr. Nikhat, at that time, the signature of Afsana was

obtained. Afsana could not contact Iftekar. It was further

averred that the father of Afsana informed her that the child

died due to jaundice. Though Iftekar tried to contact Afsana,

the contact could not be established. He then lodged oral

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information in Yashodhara Nagar Police Station. He learnt that

the child was given in adoption to Vakil and Dr. Nikhat. When

Iftekar and Afsana contacted Vakil and Dr. Nikhat, they

demanded Rs.2,40,000/- for handing over custody of the child,

to which Iftekar agreed. However, the matter could not be

resolved, hence, ultimately Iftekar and Afsana lodged First

Information Report (F.I.R.) on 12.05.2015 at Yashodhara Nagar

Police Station. Iftekar and Afsana averred in the petition that

the signature of Afsana on adoption deed was obtained under

coercion and adoption is not recognized by the Muslim Law.

Afsana was suffering from depression and was taking

psychiatric treatment. Iftekar was an auto rickshaw driver and

was in a position to maintain the child. Iftekar and Afsana,

therefore, claimed that being natural, biological parents of the

child, they were entitled for custody of the child.

ii) Vakil and Dr. Nikhat fled written statement and

resisted the claim of Iftekar and Afsana. They contended that

Vakil was a businessman and Dr. Nikhat was a Doctor having

BUMS Degree and she was doing medical practice. Though

they married 14 years back, they did not have any child. Father

of Afsana namely Muslim (respondent no.3 in the petition) since

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last many years was working as a salesman in the cloth shop

owned by Dr. Nikhat's father. Muslim narrated the peculiar

situation to Dr. Nikhat's father that though Afsana was

unmarried, she had delivered the child in Meyo Hospital,

Nagpur, and the child was suffering from jaundice, when he

confronted Iftekar, he had refused to accept Afsana and the

child. The father of Dr. Nikhat asked him to give custody of the

child to Vakil and Dr. Nikhat, who would take care of medical

treatment and look after the better welfare of the child.

Accordingly, Afsana agreed to hand over custody of the child.

Accordingly, the adoption deed dated 27.10.2014 (Exh-55) was

executed and notarized. After receiving custody of the child,

Vakil and Dr. Nikhat admitted the child in Dr. Bhisikar's Hospital

and thereafter in Oasis Nursing Home. Vakil and Dr. Nikhat

spent approximately Rs.2,50,000/- on the medical treatment of

the child. Thereafter, for fve months, Afsana was at her

parent's house. When she had been to Meyo Hospital on

02.02.2015 with her aunt for medical treatment, she did not

come back. Accordingly, her aunt lodged missing report

no.5/2015 in Tahsil Police Station, Nagpur (Exh-56). Both Iftekar

and Afsana were traced on 05.02.2015, they gave statements

(Exhs-72, 73) to the Police, contending that they had performed

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Nikah in the year 2012 and they were having love affair for last

seven years and that Afsana was residing with Iftekar on her

own accord. Thereafter, Iftekar and Afsana approached Vakil

and Dr. Nikhat and demanded custody of the child or in the

alternative asked to pay them Rs.25,00,000/-. After the F.I.R.

was lodged by Iftekar and Afsana, Vakil and Dr. Nikhat secured

anticipatory bail on 14.05.2015. Vakil and Dr. Nikhat claimed

that the child was illegitimate child of Iftekar and Afsana and

Iftekar had no source of income. Admittedly, Iftekar frst

married with Shabnam and two children were born out of the

said wedlock. Vakil and Dr. Nikhat claimed that their fnancial

condition was far better. Love and affection has developed

between Vakil and Dr. Nikhat and the child and if the custody of

the child was handed over to Iftekar and Afsana, he would be

staying in acute poverty and illiteracy. On the other hand, Vakil

and Dr. Nikhat were in a position to give excellent life to the

child.

iii) Muslim the father of Afsana appeared and supported

the case of Vakil and Dr. Nikhat. He contended that at the time

of Shab-e-Barat, Afsana went to elder sister's matrimonial home

at Pandu Nagar, Nagpur, there she disclosed about her affair

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with Iftekar and that she was pregnant from him. After Muslim

learnt about it, he tried his level best to get Afsana married with

Iftekar, but it was revealed that Iftekar was already married and

was having children. When Iftekar was confronted by the family

of Muslim, Iftekar denied any relationship with Afsana, thereby

leaving Afsana in a state of disgraceful helplessness in an

advanced stage of pregnancy. Iftekar and his family members

insisted that Afsana should get aborted, but the same was not

possible as the pregnancy was at advanced stage. After the

delivery, the newly born infant was seriously ill as it was

suffering from acute jaundice. There was nobody to look after

the child as Afsana was unwed mother and was abandoned by

Iftekar. It was fnancially not possible for Muslim to bear the

medical expenses for treatment of the infant. He was not in a

position to keep unwed mother (Afsana) and the infant at his

house due to social reasons. Therefore, he accepted the

proposal of Dr. Nikhat's father, with whom he was working, to

hand over custody of the child to Vakil and Dr. Nikhat, who were

married for more than 14 years but had no children of their

own, who gave the child expert medical treatment. He further

stated that Afsana willingly had handed over custody of the

child to Vakil and Dr. Nikhat. He further contended that Iftekar

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and Afsana lived in a small dark and dingy house, which did not

protect them from elements of changing nature. They were

living in acute poverty, illiteracy and they were not in a position

to give anything positive to the child. He contended that taking

into consideration the fact that Vakil and Dr. Nikhat are well

educated and they were having good fnancial position. In the

interest of welfare of the child, his custody should remain with

them. He therefore prayed for dismissal of the petition.

Petition No.D-55 of 2015.

iv) Vakil and Dr. Nikhat fled this petition making

identical pleadings as were made in their written statement

fled in Petition No.D-31 of 2015. They prayed that they be

appointed as guardian of the child. Iftekar and Afsana opposed

their petition by fling written statement in which their

contentions in the Petition No.D-31 of 2015 were repeated.

3. The learned Family Court after appreciating the

evidence on record dismissed the petition fled by Iftekar and

Afsana and decreed the petition fled by Vakil and Dr. Nikhat.

Hence, the present two appeals challenging the said decision.

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4. Heard learned advocate for the appellants (Iftekar

and Afsana) and learned advocates representing the

respondents (Vakil, Dr. Nikhat and Muslim).

5. The learned advocate for Iftekar and Afsana

submitted that Mahomedan Law does not recognize the

concept of adoption. Iftekar and Afsana were married before

the birth of the child. According to her, a mahomedan male is

entitled to perform four marriages, so no fault can be found

with the marriage of Iftekar with Afsana, his marriage with her

was a valid marriage. She relied on Section 255 of the

Mahomedan Law in that behalf. By pointing out birth certifcate

(Exh-38), she submitted that in the birth certifcate names of

Iftekar and Afsana were mentioned as parents of the child and

there is no dispute about their parenthood. She urged that

since the marriage between Iftekar and Afsana was valid, the

child born out of the said wedlock was a legitimate child and

being the biological parents, Iftekar and Afsana were entitled to

the custody of the child. She further submitted that the

statement of Iftekar and Afsana recorded during investigation

was not admissible in evidence and could not have been relied

upon by the Family Court. In support of this submission, she

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placed reliance on M. Nageshwar Rao ..Vrs.. State of Andhra

Pradhesh, (2011) 2 SCC 188. She further submitted that

Dr. Nikhat had not fled Income Tax Returns of earlier years.

According to her, Muslim was not capable of giving the child in

adoption to Vakil and Dr. Nikhat. She argued that since Vakil

was not examined, adverse inference needs to be drawn

against Vakil and Dr. Nikhat. She further argued that Iftekar

and Afsana being the biological parents of the child, they are

entitled for custody of the child. According to her, Iftekar was

having sufcient income to look after the welfare of the child.

She also submitted that the learned trial Court has erroneously

dismissed the petition for custody of the child and has further

erred in decreeing the petition of Vakil and Dr. Nikhat. She

therefore urged that both the family appeals fled by Iftekar and

Afsana deserve to be allowed.

6. On the other hand, the learned advocate for Vakil

and Dr. Nikhat supported the judgment of the trial Court

submitting that Iftekar and Afsana are not in a position to take

care of welfare of the child and Vakil and Dr. Nikhat were rightly

appointed as guardian of the child. He submitted that the

learned trial Court has properly appreciated the evidence on

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record and has rightly passed and has given well reasoned

judgment, which does not call for any inference.

7. The learned advocate representing Muslim (third

respondent) adopted the submissions of Vakil and Dr. Nikhat.

8. Heard the learned advocates for the parties at length

and perused the record.

9. After hearing the rival submissions, following points

arise for consideration :

i) Whether the decision of the Family Court of denying custody of the child to Iftekar and Afsana is legal and proper ?

ii) Whether the Family Court was justifed in appointing Vakil and Dr. Nikhat as guardian of the child ?

10. For deciding the controversy, it is necessary to

consider the evidence on record. Iftekar and Afsana examined

themselves in support of their claims. Iftekar deposed in terms

of his pleadings in the petition by fling afdavit of evidence at

Exh-27. He produced Nikahnama (Exh-37/1) of his marriage

13 J. FCA-11-2017 + FCA-12-2017.odt

with Afsana, original birth certifcate of the child (Exh-38),

discharge card of Afsana (Exh-39), auto rickshaw's RC Book

(Exh-42) and his auto rickshaw's driving license (Exh-43). In

the cross examination, he denied that Afsana did not reside

with him in his house before birth of the child on 30.08.2014.

He also denied that at the time of delivery on 30.08.2014,

Afsana was at the house of her parents. He stated that he was

present at Meyo Hospital, Nagpur on 30.08.2014. He further

stated that he had produced documentary proof to show that

on 30.08.2014, Afsana was mentally ill. He further admitted

that till six months of pregnancy, Afsana was at the house of

her parents and on second day of the delivery, she went to her

parent's house with the child. Thereafter, he came to know

that the child became ill. He deposed that he had deputed his

younger brother Sohail for taking care of Afsana and the child

and Sohail took Afsana and the child to Meyo Hospital. On that

day, according to him, he had gone to Amravati to fetch his frst

wife Shabnam. After returning to Nagpur, on the next day, he

tried to contact Afsana and her parents, but nobody answered

his call. Though he repeatedly visited Afsana's parents house,

every time he found it locked. He was not allowed to meet

Afsana, hence, he went to Yashodhara Police Station to lodge a

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report, but the same was not accepted. He further deposed

that for the frst time, he met the child after six months on

30.08.2014. He admitted that during the period of six months,

he had not fled any proceedings in the Court. He was unaware

about the nature of treatment given to the child for six months

and in which hospital, the child was admitted. He admitted that

he met Afsana at Meyo Hospital on 02.02.2015 and from there,

she accompanied him to his house and at that time, the child

was not with Afsana. Thereafter, Iftekar and Afsana went to

Yashodhara Police Station and lodged a report. He denied the

suggestions that there was no Nikah between him and Afsana

and that they were having illicit relations, due to which the child

was born. He denied the suggestions that Afsana was never

mentally ill and when she was in her sixth month of pregnancy,

he had abandoned her. He admitted that since 05.09.2014, the

child was in custody of Vakil and Dr. Nikhat. Till the fling of

these petitions, Dr. Nikhat never told him about the document

dated 27.10.2014, which was executed in favour of Vakil and

Dr. Nikhat. He stated that he was called at Afasana's parental

house and he was asked about the pregnancy of Afsana without

any Nikah. He admitted that Muslim was working in the cloth

shop of Dr. Nikhat's father. He also admitted that Vakil and

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Dr. Nikhat gave good treatment to the child in good private

hospital and the expenses of the treatment were borne by

them. He admitted that he did not fle any application in

respect of illness and neglect of the child by Vakil and

Dr. Nikhat. He admitted that he was staying with Shabnam

from whom daughter Asmira Fatima aged about 4 years and

son Izaan aged about 15 months were born. Till that date,

daughter Asmira was not admitted in the school. Afsana was

also residing with them. His house was of fve rooms

ad-measuring 800 sq.fts. He denied the suggestion that his

house was on encroached land and it was a hut. He also

admitted that he was not a income tax payer. He denied the

suggestion that to extract money from Vakil and Dr. Nikhat, a

false petition was fled by him.

11. Afsana fled afdavit in terms of the pleadings in the

petition. In the cross examination, she admitted to have

delivered a female child on 24.10.2016. At the time of

deposition, she was residing at Muslim's house. She stated that

she did not disclose the fact of her affair with Iftekar for eight

years to her parents. She admitted that Exh-32/1 (adoption

deed) from the Petition No.D-55 of 2015, though had her

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photograph, it did not bear her signature. She deposed that

she used to sign in Hindi and not in English. Nikahnama

(Exh-52) was having her signature in Hindi in column no.3. She

admitted that at the time of delivery of the child, she was

informed that the newly born child was having jaundice. She

was taken to Meyo Hospital where Vakil and Dr. Nikhat were

called. She was told that there were no chance of survival of

the child. The child was taken to Dr. Bhisikar's Hospital. She

was unaware as to where the child was taken thereafter. She

admitted that Vakil and Dr. Nikhat took custody of the child.

She was unable to give the exact date when they took custody

of the child. She did not lodge any report against Vakil and

Dr. Nikhat. She denied the execution of the adoption deed

(Exh- 32/1), though she admitted the photographs of Vakil and

Dr. Nikhat on that document and the signature of her father.

She further admitted that the copy of her Aadhaar card was

annexed with Exh-32/1. According to her, it was quite possible

that Exh-32/1 was bearing her thumb impression. She claimed

to have studied upto 10th standard in Hindi medium. She

further deposed that since the time of fling of the petitions, no

medical treatment was being given to her except for fracture

her left leg three months before. She deposed that it was not

17 J. FCA-11-2017 + FCA-12-2017.odt

true to say that her mental condition was throughout good.

She also denied that she herself on her own and her father

handed over the permanent custody of the child to Vakil and Dr.

Nikhat. She admitted that she and Iftekar had given statement

in the Police Station. When she was asked that her Nikah was

performed with Iftekar on 08.02.2015, she answered that it was

true but it was subject to the condition that her male child

would be given to her. She admitted that there was no

pleading to that effect in the petition or written statement that

on that condition the marriage was performed on 08.02.2015.

She admitted that till her frst delivery, she was residing with

her parent's house and she had never been to Iftekar's house.

She admitted that she was residing with Iftekar and his frst

wife and children. When she was asked that Vakil and

Dr. Nikhat were taking proper care of the child, she replied that

she was not concerned and she wanted her child back. She did

not know if Vakil and Dr. Nikhat spent on the child's medical

treatment for jaundice. She further deposed that she arrayed

her father Muslim as respondent no.3 as he was not ready to

secure the custody of her male child and as her father had

played a major role in giving custody of the child to Vakil and

Dr. Nikhat. She further admitted that before she delivered the

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child, Iftekar's frst marriage had already taken place 3 1/2 years

before and at that time, Iftekar was already having a female

child aged at two years from his frst wife. She also admitted

that when she conceived for the frst time, at that time she was

residing at the house of her father. She denied that she

conceived without marriage and so as to avoid defamation, her

father gave permanent custody of the child to Vakil and

Dr. Nikhat. At that time, the condition of the child was very

delicate and her father was not in a position to give the child

required medical treatment. She denied the suggestions about

fling a false case. She admitted that her relations with her

father were cordial.

12. Dr. Nikhat fled afdavit of evidence reiterating the

contentions in the written statement. She produced on record

the documents of medical treatment provided to the child at

Exhs-64 to 71, certifed copies of police statements of iftekar

and Afsana at Exhs- 72 and 73 respectively, the certifcate of

circumcision performed on the child at Usmani Hospital, Nagpur

at Exh-74 and she also produced her Income Tax Return for the

year 2015-16 and 2016-17 at Exhs-75 and 76. During the

cross-examination, she deposed that she had completed 15

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years of her medical practice and she was continuing her

medical practice. She admitted that she did not produce any

letter heads on record and has not disclosed what business her

husband (Vakil) was doing. She admitted that she did not

mention anything in respect of income of Vakil and her own

income in her pleadings and evidence. She admitted that

before 05.09.2014, she had never met the child's real mother

i.e. Afsana. She stated that no adoption deed was executed on

05.09.2014. She admitted that in the discharge summary

Exh-65, Oasis Nursing Home had recommended breast feeding

to the child. She gave bottle milk to the child. She denied that

for want of breast feeding, the child was not keeping good

health. She admitted that Afsana was given access to the child

only as per Courts orders. She was unable to answer whether

the adoption deed Exh-55 was illegal. She volunteered that it

was executed as per the wish of the child's mother Afsana. She

stated that till the date of deposition, she did not invest any

money in the name of the child. She volunteered that by the

time, the child attains the age of two years, she would invest

money in his name. She admitted to have not lodged any

police report in respect of Iftekar's and Afsana's demand of

Rs.25,00,000/-.

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13. From the evidence adduced on record, it appears

that the child was born to Afsana on 30.08.2014 and in the birth

certifcate (Exh-38), the names of Iftekar and Afsana were

recorded as parents. Admittedly, Afsana was at her father's

home from conception till her delivery. It is not disputed that

after birth, the child was having jaundice and his condition was

critical and on the 5th day of the birth, the child was handed

over in custody of Vakil and Dr. Nikhat. It is also clear from the

evidence that due to the proper medical treatment given to the

child by Vakil and Dr. Nikhat, he recovered from the jaundice.

Though the learned advocate for Iftekar and Afsana placed

reliance on Nikahnama (Exh-37) dated 26.06.2013, the same

would not be admissible in evidence as contents of the same

are not proved by leading cogent evidence. The witnesses who

were allegedly present at the time of said Nikah and who

signed the alleged Nikahnama were not examined, therefore,

the said Nikahnama cannot be relied upon.

14. It is also admitted position on record that Iftekar

married with Shabnam 3½ years before, Afsana gave birth to the

child. At that time, Iftekar and Shabnam were having daughter

aged about two years and Iftekar was residing with Shabnam

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and his daughter and Afsana was residing with her father. From

the evidence on record, it prima-facie appears that the child

was born out of love affair and physical relations between

Iftekar and Afsana and they were not married at the time when

the child was born. The evidence on record shows that Afsana

was taking treatment for mental illness. The evidence of

Muslim depicts the peculiar situation in which custody of the

child was handed over to Vakil and Dr. Nikhat. He had deposed

that he was the father of unmarried daughter, who had

delivered the child. Iftekar had disowned Afsana and the child.

With a view to save the family reputation and he was not

fnancially capable to give costly medical treatment to the child,

who was in critical condition, in consultation with Afsana, he

took decision to hand over custody of the child to Vakil and Dr.

Nikhat.

15. There can not be any dispute that the concept of

adoption is alien to Mahomedan Law, therefore, the adoption

deed at Exh-55 cannot be solely relied upon by Vakil and

Dr. Nikhat. However, in terms of Section 14 of the said Act, the

Family Court is entitled to look into the documents which would

assist it to deal effectually with the dispute. The learned Family

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Court was therefore entitled to take into consideration Exh-55

for collateral purposes. In Exh-55, it is mentioned that the minor

was born from illegitimate relations to Afsana and with a view

to give higher education to the child and considering his future,

he was being given in adoption. On Exh-55, the photographs of

Afsana, Vakil, Dr. Nikhat and Muslim, so also of two witnesses

are afxed and all of them have executed it on 27.10.2014.

Aadhaar Cards of all the signatories are also annexed with Exh-

55.

16. Three dates of Nikah of Iftekar and Afsana have

come on record. In the pleadings, they both have claimed to

have performed Nikah on 26.06.2013 as per Nikahnama

(Exh-37/1). During the cross-examination, a specifc question

was asked to Afsana :

"Question : Your Nikah was performed with the petitioner

no. 1 on 08.02.2015.

Answer : It is true, but it was subject to the condition

that my child will be given to me."

In the next sentence, she admitted that it was

not pleaded in the petition/written statement that the

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condition for performing marriage dated 08.02.2015 was

that a permanent custody of her male child would be given

to her. Nikahnama dated 08.02.2015 is at Exh-52 on record.

In the complaint lodged for missing of Afsana, the

statements of Iftekar and Afsana were recorded at Exhs-72

and 73. In the said statements, they both have stated that

they got married in the year 2012. They have failed to

prove any of the Nikah in the Court neither the witnesses

present and Kazi, who performed their Nikah were examined

by them. Therefore, their claim of having performed Nikah

is unacceptable.

17. It is settled legal position that the welfare of the

child is the paramount consideration in custody matters.

In Gaurav Nagpal ..Vrs.. Sumedha Nagpal , 2009(1)

SCC 42, the Hon'ble Apex Court held that : " the Court has to

give due weightage to the child's ordinary contentment, health,

education, intellectual development and favourable

surroundings, but over and above physical comforts, the moral

and ethical values have also to be noted. They are equal if not

more important."

                                             24     J. FCA-11-2017 + FCA-12-2017.odt



              In Mausami Moitra Ganguli                  ..Vrs.. Jayant Ganguli ,

2008(7) SCC 673, it was held by the Hon'ble Apex Court that :

"it is the welfare and interest of the child and not the rights of

the parents, which is the determining factor for deciding the

question of custody. The question of welfare of the child has to

be considered in the context of the facts of each case and

decided cases on the issue may not be appropriate to be

considered as binding precedents."

In Gaytri Bajaj ..Vrs.. Jiten Bhalla, (2012) 12 SCC

471, the Hon'ble Apex Court held :

"14. From the above it follows that an order of custody of minor children either under the provisions of the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956 is required to be made by the Court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the parent concerned to take care of the child are some of the relevant factors that have to be taken into account by the Court while deciding the issue

25 J. FCA-11-2017 + FCA-12-2017.odt

of custody of a minor. What must be emphasised is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court."

18. Custody of the child is a sensitive issue, which

involves sentimental attachments. The welfare of the child has

to be considered in the background of the relevant facts of each

case. A balance needs to be struck between the attachments

and sentiments of the parties towards the child.

19. Keeping in mind the principles laid down by the

Hon'ble Apex Court in the above authorities, if we consider the

facts of the present case, the position that emerges from the

record is that, Afsana is staying with Iftekar and his frst wife

Shabnam and their two children namely Asmira Fatema and son

Izaan. She has recently delivered a female child, thus Iftekar

has responsibility to maintain two wives and three children.

Iftekar admittedly is a rickshaw driver, he had purchased the

rickshaw on fnance. His fnancial condition does not appear to

be sound. Iftekar and Afsana have failed to prove that Iftekar

was getting steady and regular income. The photographs Exhs-

26 J. FCA-11-2017 + FCA-12-2017.odt

57 and 58 show that the house of Iftekar and Afsana is made of

tins and it appears to be a temporary structure, thus they do

not appear to have proper accommodation. Iftekar has also

admitted that till the date of deposition his daughter Asmira

Fatima was not going to school. Afsana has been taking

treatment for mental ailment.

20. Admittedly, the child was born on 30.08.2014 and

his custody was handed over to Vakil and Dr. Nikhat

immediately on the 5th day of his birth. At that time, the child

was suffering from jaundice and his condition was critical. Vakil

and Dr. Nikhat spent substantial amount on the expert medical

treatment given to him, due to which he recovered. Since then,

the child was nurtured and brought up by Vakil and Dr. Nikhat,

the child is now of a six years of age and naturally he is

mentally and emotionally attached to Vakil and Dr. Nikhat. The

child has developed a bond with Vakil and Dr. Nikhat as his

parents. They both appear to be in a position to look after the

child and to provide adequate facilities to him in proper and

congenial manner. They appear to be giving good upbringing

to the child.

27 J. FCA-11-2017 + FCA-12-2017.odt

21. In case the child's custody is handed over to Iftekar

and Afsana, it would cause emotional turmoil to the child. He

will be uprooted from the present family of Vakil and Dr. Nikhat

and the surroundings in which he is brought up and will be

required to go in totally alien surroundings and circumstances,

in which it would be difcult for him to adjust.

22. The record indicates that Vakil and Dr. Nikhat are

also in a better fnancial position to give quality life and quality

education to the child. Except the child, there is no other

responsibility on them. We clarify here that we are not thinking

of the welfare of the child in terms of fnancial position alone,

but it has to be taken into consideration as one of the relevant

factor.

23. There is sufcient evidence on record to prove that

Vakil and Dr. Nikhat are in a better position to take care of the

welfare of the child. They are taking care of his health,

education, intellectual development and are giving him

favourable surroundings and they are imbibing moral and

physical values in the child. In our considered opinion, they are

in a better position to look after the moral and physical welfare

28 J. FCA-11-2017 + FCA-12-2017.odt

and the future of the child.

24. For the aforestated reasons, after taking into

consideration all the relevant factors and facts of the present

case, we do not feel it desirable to disturb the custody of the

child. We are of the considered view that in the interest of the

welfare of the child, his custody should remain with Vakil and

Dr. Nikhat. The appeals fled by Iftekar and Afsana are devoid

of any merit and they are liable to be dismissed. Hence, the

following order :

i) Family Court Appeal No.11 of 2017 and Family Court

Appeal No.12 of 2017 are hereby dismissed.

ii) The common judgment and decree passed by the

learned Family Court in Petition Nos.D-31 of 2015 and D-55 of

2015 is hereby confrmed.

                                                  JUDGE                      JUDGE



TAMBE