Bombay High Court
Imran Yunus Sayyad vs Ashiya Imran Sayyad And Ors on 28 August, 2024
2024:BHC-AUG:19638
(1) fa1707.24
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1707 OF 2024
WITH
CA/7329/2024 IN FA/1707/2024
1. Imran S/o. Yunus Sayyad, ...Appellant
Age-35 years, Occu-Business, [Ori. Resp. No.1]
R/o. Krushi College Road,
In front of Bhojane Hospital, Pachod,
Dist. Aurangabad
VERSUS
1. Ashiya W/o. Imran Sayyad, ...Respondents
Age-33 years, Occu- Household, [Resp No.1 Ori Petitioner]
R/o. Krushi College Road, [Resp Nos. 2 to 7 Ori. Rspdts.]
In front of Bhojane Hospital, Pachod,
Tq. Paithan, Dist. Aurangabad
2. Yunus Bandeali Sayyed,
Age-56 years, Occu-Business,
3. Karimunnisa W/o. Yunus Sayyad,
Age-54 years, Occu-Household
4. Mukhtar S/o. Yunus Sayyad,
Age-33 years, Occu-Business,
5. Nisar S/o. Yunus Sayyad,
Age-42 years, Occu-Business,
6. Ishrat W/o. Afroz Shaikh,
Age-31 years, Occu-Household,
7. Masarrath W/o. Affan Mehfooz Chaus,
Age-29 years, Occu-Household,
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(2) fa1707.24
Resp. Nos. 2 to 7
All R/o. Krushi College Road, in front of
Bhojane Hospital, Pachod, Tq. Paithan, Dist. Aurangabad
Mr. Krishna Pratap Rodge, Advocate for the appellants
Mr. Sayyed Tauseef Yaseen For respondent Nos.1
CORAM : KISHORE C. SANT, J.
RESERVED ON : 23rd JULY, 2024
PRONOUNCED ON : 28th AUGUST, 2024
JUDGMENT:
1. This appeal is preferred against the judgment and
order passed by the learned District Judge, Aurangabad dated
09-05-2024 in Civil Misc. Application No. 363/2022 directing
the present appellant-original respondent No.1 to hand over the
custody of children to respondent No.1. Present appellant is the
husband-original respondent No.1 in Civil Misc. Application No.
363/2022. Present respondent No.1 is the original petitioner in
the said application. Present respondent Nos. 2 to 7 are original
respondent Nos. 2 to 7.
2. The appellant is referred to as 'husband' and
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respondent No.1 is referred to as 'wife' and respondent Nos.2 to
7 are referred to as 'relatives' for the purpose of convenience.
3. The wife filed an application under Section 25 of the
Guardians and Wards Act, 1980 for custody of the minor
children from the husband.
4. The case in short, is that the husband and wife got
married on 16-05-2008 as per Muslim rites. There are total six
children born out of said marriage. Presently custody of one
child is with the wife. Custody of five children is with the
husband. Custody of five children is sought by the wife. It is the
case of the wife that after the marriage she was staying in a joint
family. After two days of the marriage, she was ill-treated at the
hands of in-laws for demand of Rs.2 lakhs for opening imitation
jewelry shop. Because of poor financial condition, father of the
wife expressed inability to pay such amount. On that count there
started quarrels in the family. The father of the wife therefore
raised hand loan of Rs.2 lakhs and paid to husband's family.
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Expenses while delivering the children were also born by the
father of the wife. The wife after having these many children,
performed the family planning operation, on that the husband
got annoyed and again started ill-treatment to the wife.
5. Because of constant harassment, relatives of the wife
had been to her matrimonial house, whereupon, the husband
and his relatives drove the wife out of the house by keeping
children with them. Wife thereafter filed an application under
Section 97 of the Cr. P. C seeking custody of the children.
However, said application came to be rejected. The wife has
therefore, approached the District Court seeking custody of the
children in the capacity of natural guardian.
6. It is the case that being a real mother she has natural
love and affection for the minor children. There is no one to
look at the children in the husband's family as all the male
members are busy in their respective shops. For taking proper
care of children, it is necessary to give custody to the mother.
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(5) fa1707.24
7. It is the case of the husband that position of the wife
is not financially sound to take care of the children. Children are
looked after by their grand-mother. Financial position of the
husband is sound. He even pays income tax. Other allegations of
ill-treatment and demand of Rs.2 lakhs are denied. Husband
initially did not adduce evidence and matter was decided by
judgment and order dated 29-04-2023. The custody was
directed to be given to the wife. This order came to be
challenged before this court. This court, thereafter, remanded
the application directing to provide an opportunity to the
husband to lead evidence.
8. Thereafter, matter came to be decided afresh. It is
this order, which is now under challenge. In the impugned
judgment and order, the learned trial court observed that wife
can take best care of the children. Minor children need company
of the mother. It is the mother who can take proper care of the
children by paying attention. She has sufficient time for children
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(6) fa1707.24
as she is a housewife and not involved in any business. As
against that husband is busy with his grocery shop and does not
have time to look after the children. It has come on record that
there was also a notice for 'restitution of conjugal rights'.
However, there was no reply. It is observed on the basis of
evidence that husband runs grocery shop etc and directed the
custody of children to be handed over to the wife.
9. Learned advocate for the appellant vehemently
argued the appeal. He submits that observations of the court are
against facts on record. It is the father who can take decision in
the interest of the children. The wife is educated only up to 6 th
std. whereas husband is educated up to 12th std. His grocery
shop business is flourishing one. His brother is also having tea-
stall. His another brother runs a footwear shop near bus-stand.
However, this evidence is ignored by the learned court. Children
are taking education in a reputed school namely Jain English
School at Pachod. Progress report of children in school is not
properly appreciated. He relied upon compilation of the
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(7) fa1707.24
documents produced on record to show that son Furkhan is
taking education in Gurukul English School. In spite of issuance
of notice, wife has not come for co-habitation. Though the wife
has left the house on 27-07-2022, no attempts were made for
seeking custody. The custody was sought much after leaving the
house. Even the children do not want to go to reside with the
mother. There are many people residing in the house of the
parents of the wife. Now the children are settled in the
husband's house. Learned advocate for the appellant relied upon
the judgment reported in 2024 SCC Online SC 225 in the case of
Shazia Aman Khan and Another Vs State of Orissa and others.
10. As against that Mr. Sayyed, learned advocate for the
respondents submits that there is no female member in the
family of the husband to look after the children. Financial
condition is a not sole criteria while considering the matter of
grant of custody of minor children. The learned trial court has
rightly observed on the basis of evidence that children are found
vulnerable to tutoring and developing general negativity.
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(8) fa1707.24
Children are only of 9 years, 7 years and daughters Bursha and
Mubashir are twins are of 6 years and therefore, required
company of the mother. He relied upon the judgment reported
in 2022 LiveLaw (SC) 643 RohithThammana Gowda Vs State of
Karnataka and Ors.
11. In the case of Shazia Aman Khan (supra) the Hon'ble
Apex Court has considered the concept of custody, guardianship
and stability of child. It is held that the court has to look at
stability and security of the child as essential for full
development of child's talent and personality. It is reiterated that
paramount consideration in the matter of custody is welfare of
the children. It is further held that while deciding the matters of
custody, wish of the children is also one of the factors that
requires consideration. In that case, child was called to the court
for interaction. Parents were also called for interaction. In that
case, court found that child was quite intelligent who could
understand her welfare. In that case, child expressed that she
does not want to be distabilize. Thus, from the interaction with
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the child the Hon'ble Apex Court had decided not to disturb the
custody of the child.
12. So far as judgment in the case of Rohith Thammana
Gowda (supra) is concerned, the Hon'ble Apex Court has given
custody to the mother as it was satisfied that the child was
comfortable and secure with his mother. The order directing to
give custody to the mother was maintained. In the case reported
in AIR 1988 Kerala 30 Suharabi Vs Muhammed the Kerla High
Court directed to hand over custody to the mother by setting
aside the judgment and order of the learned District Judge. It
was considered that age of the children was tender age and it
was in the interest of children to be in the custody of the mother.
In Writ Petition No. 2048/2023 Abhishek Ajit Chavan Vs Dr.
Gauri Abhishek Chavan this court at Bombay, on considering
various factors, interacted with the child in the chamber. Though
the child expressed her desire to be with her father, this court
held that the comfort of the child is one of the factors to be
taken into consideration while considering the welfare of the
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(10) fa1707.24
child. It was considered that child was of 8 years of age. Child at
the age of 8 years would normally be driven by her immediate
comfort. The court after considering the family position of the
parties that mother was only having part time job, the mother of
the mother was in the house for entire day, dismissed the
petition of the husband.
13. In view of the above, now it is settled that it is the
interest of the children that needs to be considered. Mere desire
of a child at tender age is not sole factor to be considered for
taking decision in respect of the custody. The child at the tender
age is not fully aware of his welfare. There is always tendency to
be with parents with whom they are residing. They are mostly
influenced by tutoring by the parents. Interaction with child is
thus influenced by such parents. In the present case also, this
court interacted with the children. The children as usual stated
that they are happy with the father. However, it must be
considered that presently children are in custody of the father
and natural tendency, the answer has come in favour of the
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(11) fa1707.24
father.
14. So far as better company and care is concerned, it is
seen that almost every members in the family of the husband is
occupied in the business. There is only grand-mother of the
children who is in the house for whole day. In the house of the
wife, she is always at home. She stays with her parents. There
are other relatives in the family. So far as deprivation of the
company is concerned, it needs to be noted that both the
parties are staying in the same town. Distance between the
houses of husband and wife is not more than 2 km. Thus,
visitation by parents would not be much difficul. Husband can
always meet children at convenient place. Husband and wife are
related to each other even prior to marriage. One more factor
needs to be considered is that twin girls are hardly of 6 years of
age. Being female children they require care and attention of the
mother. Other children are also 9 years and 7 years of age.
Under Muslim Law, custody of the children below 7 years is
required to be with the wife.
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(12) fa1707.24
15. So far as financial condition is concerned, the court
has rightly taken care of that aspect directing husband to pay an
amount per month to the children. [In the order it, however
wrongly appears that wife is directed to pay]
16. This court finds that the learned trial court has
considered all the evidence and has rightly arrived at the
conclusion. No case is made out to disturb the said findings of
fact. Thus in view of the discussion above, this court finds that
there is no merit in the appeal and appeal deserves to be
dismissed. The learned trial court had directed custody to be
handed over within a period of one month from the date of
judgment, however, that period is now over. Therefore, this
order to take effect within one month from today. Rest of the
order is maintained as it is. The husband is directed to pay an
amount per month to each by correcting the order of the learned
trial court as discussed in para No.15 of this judgment.
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(13) fa1707.24
17. In view of above, appeal stands dismissed off.
18. In view of disposal of the appeal, the civil
applications, if any stand disposed off.
[KISHORE C. SANT, J.]
VishalK/fa1707.24
LATER ON:
1. At this stage the learned advocate for the appellant
seeks continuation of the interim order.
2. The request is vehemently opposed by the learned
advocate for the respondent. He submits that during the
pendency of the application, she was not allowed to see the
children by the husband.
3. In view of the same, following arrangement:
(i) Stay continued for next four weeks.
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(ii) The interim arrangement to continue till next
four weeks, by way of interim arrangement. For next
four weeks, the wife is allowed to see the children at
the house of the husband by way of interim
arrangement and to take the children on every
Saturday After school time is over and she will send
back the children on every Monday in the morning
for school purpose to husband.
[KISHORE C. SANT, J.]
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