Rukshana Begum vs Nizam Elahi
1989 Latest Caselaw 80 Del

JUDGMENT

S.B. Wad, J.

(1) This Revision Petition is filed by wife Smt. Rukshana Begum (against her husband Nizam Elabi) against the order of the Guardian Judge dated 22 2. 1986 dismissing the application of the wife under Order Ix, Rule 13 and passing an exparte order granting custody of two sons, Mohd, Hayat and Mohd. Ali to Respondent husband.

(2) The parties are Muslim and were married on 29th April, 1977 according to Muslim rites. The first son was born on 1.11.1978 and the second son was born on .11.6.1980. According to the petitioner she was driven out of the house at Delhi in June, 1980. On 18.8.1980 the husband gave talaq to the wife. Through the interim orders of this court the custody of the sons with the mother was continued but the husband was given access to sons from time to time. After giving talaq the respondent-husband has married for the second time. It was stated in the supplementary affidavit that the petitioner had filed an application at Jaipur for maintenance under Section 125, Cr. P.C. in September, 1981. In the said application the learned Judge directed the respondent to pay Rs. 450.00 by way of maintenance to the wife and two sons. According to the wife the husband did not make any payment for maintenance of two sons since September, 1981.

(3) At the time of the hearing the counsel for the respondent pointed out that the said order of maintenance was stayed on his filing a Revision Application in Rajasthan High Court. According to him, the petition was not maintainable as there was neither error of jurisdiction nor of law in the order passed by the Guardian Judge. He further submits that the petitioner was negligent in prosecuting the application for custody before the Delhi Court and did not submit any valid ground for the restoration of the application. The learned Judge, it is submitted, was, therefore, quite right in passing a custody order ex parte. The learned counsel further submits that when the impugned order was passed by the learned Guardian Judge on February 22, 1986 the elder son had already completed seven years of age and the younger son was about six years old. His submission is that in any case as of today the sons are above the age of seven and according to Muslim Law it is the father and father alone who is the guardian. The application for guardianship was filed by the husband on 9.11.1982.

(4) In the impugned order the Guardian Judge has stated that January 21, 1983, that is, on the first date of hearing Mr. S.B. Gouri, Advocate, of Jaipur had appeared before him and in his presence February 28, 1983 was the date fixed for the filing of the reply to the petition. Neither the Advocate, nor the wife were present. Therefore, the ex parte order granting custody was passed on 23.4.1983. The application for restoration was made on July Ii, 1983 and Sbri Nizami, Advocate, was engaged to appear on behalf of the wife. The Guardian Judge held that the wife bad not explained her absence from February 28,1983. The Judge further held that if her father could visit Delhi on July 11, 1983 why did he not visit Delhi on Febuary 28, 1983 which was the date fixed. It is also held that the first Advocate Mr. Gouri did not Glean affidavit in support of the application, although he bad contended that his son was seriously ill on 282.1986. The Guardian Judge, therefore, dismissed the application filed on behalf of the wife.

(5) It is difficult to agree with the reasoning of the Guardian Judge. First of all he did not appreciate the fact that the wife was staying at Jaipur, while the petition for custody was filed by the husband at Delhi. Secondly, her Advocate Mr. S.B. Gouri, was also regularly practicing at Jaipur and not at Delhi. The complaint of the wife was that pursuant to the order of 21.1,1983, the husband was directed to give a copy of the petition to the wife but the copy was not supplied and no reply could have been filed on the next date of hearing, namely, 20.2.1983. Although it was an error on the part of Advocate Gouri merely to send a telegram that his son was ill and he was unable to attend the court at Delhi on 20.2.1983 and not enquiring about the order of the court thereafter, the Guardian Court at least had material to show the bana fide in not attending the courts. That was the first date when the reply was to be filed bywife. It is difficult to appreciate the reasoning of the learned Judge that if the father could go to Delhi in July, 1983, why did he not go to Delhi immediately after 28th February to find out as to what had happened in the case. Normally., when an Advocate is engaged by a party, it relies upon the Advocate to take care of the brief and to attend to it. It is when that nothing is heard from the Advocate for a long time the client becomes curious and make enquiries. I do not find much is substance in the finding of the learned Judge that the vakalatnama was signed on the date it was filed before him, although the wife was not present in Delhi. It may be that the vakalatnama was already got signed from her at Jaipur but was filed on that date in the court. The Judge has further erred in holding the fact of the absence of the affidavit - of Shri Gouri, Advocate, with the petition against the wife. Since the telegram signed by the Advocate was already on record, there was nothing further for him to add by way of an affidavit. It is also incorrect on the part of the learned Judge to record that the wife did not explain her absence from February 28, 1983. It is pointed out by her that in the affidavit by way of evidence filed on the direction of the learned Judgf, she bad explained full facts in detail.

(6) The order of the learned Guardian Judge cannot be upheld in law and deserves to be set aside.

(7) The important questions which were required to be decided in the custody application were : that the wife was an educated Muslim lady and was a fit person to act as a guardian of the two minor sons. There was nothing against her on record to show that she was not fit to be a guardian. On the contrary the husband had married for the second time. The counsel for the husband staled that he has no issues from the second marriage. But according to that would not make the difference. As between the natural mother and the step mother a preference will always have to be given to the natural mother in the matter of guardianship. Another important question to be decided was whether the provisions of Muslim Law of Hizanat of giving custody of the two sons to the husband is an absolute and immutable provision. A more pertinent question is when the husband had preferred an application under the Guardian and Wards Act, the "interest and welfare" of the minors would not be a more relevant consideration in the matters of granting the relief? It may also be necessary to examine whether, in the matters of custody welfare of a child is irrelevant in islam in laying down the rule of Hizanat. The impugned order under Order Ix, Rule 13 passed by the Guardian Judge on February 22, 1986 is set aside. Consequently, the ex parts order granting custody of the sons to the husband is also set aside. The matter is remanded to the Guardian Judge who will, after giving proper notice to the parties and after hearing them, pass the necessary order regarding the custody of the sons. Till the final disposal of the husband's petition for custody by Guardian Court anew, the custody will continue with the wife. However, the Guardian Judge would, if so requested by the husband, pass the appropriate order for temporary custody in favor of the husband during the vacations, since the wife is staying at Jaipur and the husband is staying at Delhi.

(8) For the reasons stated above, the C.R. is allowed with costs.