Khalid Hussain vs Smt. Sufiya
2023 Latest Caselaw 20363 MP

Madhya Pradesh High Court

Khalid Hussain vs Smt. Sufiya on 4 December, 2023

Author: Sushrut Arvind Dharmadhikari

Bench: Sushrut Arvind Dharmadhikari, Hirdesh

                              1
                                                F.A. No. 636 of 2020

      IN    THE     HIGH COURT         OF MADHYA
                         PRADESH
                       AT I N D O R E
                            BEFORE
           HON'BLE SHRI JUSTICE SUSHRUT ARVIND
                    DHARMADHIKARI
                              &
              HON'BLE SHRI JUSTICE HIRDESH
                ON THE 04th DECEMBER, 2023


                  FIRST APPEAL No. 636 of 2020

BETWEEN:-
KHALID HUSSAIN S/O ABDUL HAMID KADRI, AGED ABOUT 32 YEARS,
OCCUPATION: NAUKARI 78-B, GALI NO.4, VEDVYAS COLONY, RATLAM
(MADHYA PRADESH)
                                                    .....APPELLANT
(SHRI RISHI AGRAWAL, LEARNED COUNSEL FOR THE APPELLANT)

AND
   SMT. SUFIYA D/O MOHD. YUNUS QURESHI, AGED ABOUT 27 YEARS,
1. OCCUPATION: HOUSEWIFE 86, QURESHI MANDI RATLAM (MADHYA
   PRADESH)
   JEELAN HUSAIN S/O KHALID HUSAIN KADARI MINOR THR.
   NATURAL GUARDIAN MOTHER SUFIYA D/O MOHD. YUNUS
2.
   QURAISHI, AGED ABOUT 27 YEARS, OCCUPATION: HOUSEHOLD 86,
   QURESHI MANDI RATLAM (MADHYA PRADESH)
                                                .....RESPONDENTS
(NONE PRESENT FOR THE RESPONDENTS)



                   FIRST APPEAL No. 2 of 2020

BETWEEN:-
   SUFIYA W/O KHALID HUSSAIN KADARI, AGED ABOUT 25 YEARS,
1. OCCUPATION: HOUSEWIFE 86,QURESHI MANDI ,RATLAM (MADHYA
   PRADESH)
                                                    2
                                                                            F.A. No. 636 of 2020

   JILAN HUSSAIN MINOR THROUGH GUARDIAN MOTHER SUFIYA W/O
2. KHALID HUSSAIN, AGED ABOUT 25 YEARS, OCCUPATION:
   HOUSEWORK 86, QURESHI MANDI ,RATLAM (MADHYA PRADESH)
                                                                                 .....APPELLANT
(SHRI VIMAL KUMAR GANGWAL, LEARNED COUNSEL FOR THE
APPELLANT)
AND
KHALID HUSSAIN S/O ABDUL HAMID KADARI, AGED ABOUT 30 YEARS,
OCCUPATION: NAUKARI 78, B GALI NO. 4, VEDVYAS COLONY, RATLAM
(MADHYA PRADESH)
                                                                             .....RESPONDENTS
(SHRI SANJAY KUMAR SHARMA, LEARNED COUNSEL FOR THE
RESPONDENT [R-1].
----------------------------------------------------------------------------------------------------------
       Reserved on                  :           20.09.2023
       Pronounced on                :           04.12.2023
-----------------------------------------------------------------------------------------
        This appeal having been heard and reserved for judgment
coming on for pronouncement this day, Hon'ble Shri Justice S.A.
DHARMADHIKARI pronounced the following
                                               ORDER

Heard finally with the consent of both the parties.

This order shall govern disposal of both the appeals. Regard being had to the similitude of the controversy involved in both the appeals, they have been heard analogously and disposed of by this common order.

The present appeal has been filed by the appellant (husband) u/S 19 of the Family Court Act, 1984 r/W Sec 47 of Guardian and Wards Act, 1890 being aggrieved by the impugned judgment and decree dated 29.11.2019 passed by the Principal Judge, Family Court, Distt. Ratlam in Case No. 1/18.

2. The brief facts of the case are that marriage of the appellant and respondent no.1 was solemnized on 22.04.2014 as per the Muslims Rites and Rituals. After marriage, appellant and respondent no.1 were blessed with a baby boy named Jilan Hussain on 01.12.2015. With the passage of time, respondent no.1 has started misbehaving with the appellant and disrespected the elders at home. She always use to create chaos on the issue of domestic chores. Respondent no.1 on petty issues went to her parental house and when appellant brought her back to the matrimonial home, she pressurized him to have a separate establishment and even threatened the appellant that if he did not fulfill the said condition, she would cut her vein and further put forth the condition that the matrimonial house in which they were living be registered in her name, else she will again go to her parental house. Appellant always advice to her to be a good wife and tried to save the relationship, but in June, 2017, respondent no.1 went to her parental home alongwith the son Jilan Hussain. When appellant and his family members tried to bring her back, she imposed a condition to register the matrimonial house in her name. In this context, appellant has made application before the S.P, Distt. Ratlam as well as Mahila Thana, Distt. Ratlam in which respondent no.1 had given statement to the effect that she do not want to live with the appellant. Being unsuccessful in all his attempts to settle the scores, appellant send a notice to the respondent no.1 through his Advocate, to which she submitted reply and thereafter, appellant had filed a case under the Guardian and Wards Act, 1980 before the Family Court, Distt. Ratlam. To prove his case, appellant has examined his father Abdul Hameed Quadri and independent witnesses

Mohammad Aziz Quadri and Mohammad Kamaal Quadri. On the other hand, respondent no.1 apart from her own statement, she has got examined her father and another witness Mohammad Faruquddin and also got exhibited the copy of notice send by the appellant as well as the reply to the said notice submitted by her. Respondent no.1 though allowed the appellant and his family members to meet their son Jilan on every date of hearing due to which he knows them well. The learned Principal Judge, on the basis of evidence adduced by both the parties, following the 'Child Access and Custody Guidelines'[referred to as 'Guidelines' hereinafter] laid down by this Court, partly allowed the case and has given joint custody of their ward Jilan Hussain to them to the effect that the child would stay with the appellant for a period of one week and thereafter he would stay with the respondent for the next week. It is directed that the son Jilan will reside with his father from the 5:00 p.m. on Saturday till 5:00 p.m. on Sunday in first week and the next week he will reside with his mother from the evening on Saturday 5:00 p.m. till the evening of Sunday i.e. 5:00 p.m. It is further directed that till passing of any other order by this Court, this order of 'Joint Custody" will remain into force and both the parties were required to strictly adhere to the Guidelines.

3. Being aggrieved by the said judgment and decree of joint custody appellant/husband approached this Court by filing the instant appeal.

4. Learned counsel for the appellant submitted that looking to the future of minor Son Jilan, his joint custody has been given. However, learned Court below has failed in considering the Guidelines in right earnest while awarding the joint custody of the minor son which

deserves to be amended. Learned Court below has further failed to consider the evidence which was duly proved that appellant is well off and capable of giving a good standard of living to his minor son. In compliance of the order passed by the Court below, appellant has got his minor son admitted in a CBSE School in Ratlam and he is bearing all the expenses of studies of his son. Learned Court below by giving joint custody has only given an alternative relief and not the final relief. Learned Court below further failed to consider the fact that appellant is living in a joint family with his parents, brother and his wife. In case, custody of son is given to the appellant, his son is not deprived off the love and affection his grandparents. Due to the acts of respondent no.1 of not letting the minor son Jilan to meet his grandparents, appellant's father has suffered heart attack twice as he loves his grandson a lot. Appellant is financially sound and he will be able to give a bright future as compared to the respondent who is merely 8 th Standard pass. Under all such circumstances, the judgment and decree passed by the Court below be amended and guardianship of the son be given to the appellant.

5. The appellant herein has submitted an application under Section 10 of the Guardians and Wards Act, 1890 praying for custody of the child or in alternative, he may be given custody of the child for 02 days in a week. The trial Court has allowed the application in part and granted joint custody of the child - Jilan to the effect that the child would stay with the appellant for a period of one week and thereafter with the respondent for a period of one week simultaneously. Rest of the days, child would remain in the custody of the mother.

6. Learned trial Court has appreciated the facts and circumstances of the case and passed the impugned order, which appears to be reasonable. Therefore, no interference is warranted in the order so passed.

7. Accordingly, the appeal is hereby dismissed. No order as to cost.

8. Both the parties would be at liberty to seek modification of the order impugned or to file separate application before the appropriate Court, in accordance with law seeking permanent custody of the ward.

9. Let a copy of this order be kept in the docket of F.A. No. 02/2020.

               (S. A. DHARMADHIKARI)                         (HIRDESH)
                         JUDGE                                 JUDGE



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