Madras High Court
Mohammed Sadique vs Mohammed Dastageer on 23 December, 2021
CMA.Nos.3531 and 3532/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.12.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
CMA.Nos.3531 and 3532/2021 and
CMP.Nos.20453 and 20456/2021
1. Mohammed Sadique
2. Salmas Begum ... Appellants in both CMAs.
-vs-
1. Mohammed Dastageer
2. Mohammed Usman
3. Zubaidha Begum ... Respondents in both CMAs.
Civil Miscellaneous Appeals filed under Section 19 of the Family
Courts Act against the Common fair and decreetal order dated
31.08.2021 passed in G.O.P.Nos.19 and 17/2017 by the learned
District Judge, Family Court, Puducherry.
In both CMAs.
For Appellants : Mr.S.C.Vishwanth
For Respondents : Mrs.Dakshayini Reddy
for M/s.A.Asif Basha
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COMMON JUDGMENT
(Judgment of the Court was pronounced by T.RAJA, J.)
Both these Civil Miscellaneous Appeals have been filed against
the Common fair and decreetal order dated 31.08.2021 passed in
G.O.P.Nos.19 and 17/2017 respectively by the learned District Judge,
Family Court, Puducherry.
2. The father on one hand and the maternal grandfather on
the other hand are fighting for the custody of the minor female child,
namely, Afsana, who is now aged about 6 years 11 months. When
the 1st respondent herein married the daughter of the appellants, they
were blessed with a female baby, namely, Afsana on 18.01.2015.
But life was so cruel to the couple, since the mother of the minor
child Afsana died due to cancer on 26.08.2017 at the age of 26 years.
Before the demise of the mother of the minor child Afsana, she was
handed over to the appellants, the in-laws of the 1 st respondent
herein with the promise to look after the child. Now the child is
under the care and custody of the appellants herein. The natural
father of the child, namely, the 1st respondent herein is highly
educated and working in an I.T.Company, by name, WHIPRO in
Chennai and is getting a gross monthly salary of Rs.1,10,000/- and
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after deduction, his take home salary is around Rs.90,000/-. Finally,
the natural father 1st respondent herein asked for the return of the
custody of the minor child, but that was refused by the appellants-
maternal grandparents, resultantly, Guardian Original Petition in
G.O.P.No.17/2017 was filed under Sections 7, 8 and 25 of the
Guardian and Wards Act, seeking to declare them as Lawful
Custodians of the minor till she attains puberty on the ground that
when the child was 2 ½ years old as the custody of the minor female
child was with the maternal grandparents for the past 3 ½ years from
August, 2017, the love, affection and care shown by them would
reflect that the child likes to be in the family of the maternal
grandparents. The said petition was opposed by the 1st respondent
herein-natural father by filing yet another Guardian Original Petition
in G.O.P.No.19/2017 under Sections 7, 8(a) and 10 of the Guardians
and Wards Act seeking to appoint him as a fit and proper person to
act as a Lawful Guardian to the minor female child Afsana.
3. A separate Counter Affidavit was also filed in both
petitions. The trial court, trying the matters together, finally by a
common order dated 31.08.2021, dismissed the GOP.No.17/2017 filed
by the maternal grandparents and allowed the GOP.No.19/2017 filed
by the natural father-1st respondent herein, thereby granting the
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custody of the minor female child Afsana to her natural father with
the visitation rights to the maternal grandparents and their family
members. Aggrieved thereby, these two Civil Miscellaneous Appeals
have been brought up before us by the maternal grandparents-
appellants herein.
4. Mr.S.C.Vishwanth, learned Counsel appearing for the
appellants heavily opposing the stand taken by the Family Court,
placing reliance on a decision of this Court in which one of us was a
party (Mr.T.RAJA, J.) in J.Sadiq Batcha and another vs. A.Mohamed
Kasim and another in CMA (MD) No.743/2012 dated 22.03.2013
submitted that although the Guardian Original Petitions were filed by
both the parties, under Sections 6, 8, 10 and 25 of the Guardians and
Wards Act, 1890, a mere reading of Section 6 of the Act shows that
the Court has to see by which law the minor is subjected to for
applying the correct law on the prayer. In the present case, both the
parties are Muslims, therefore, the Personal Law should prevail over
the parties. Reading further the other provisions of law, learned
Counsel for the appellants submitted that as per Section 17 of the
Act, in appointing or declaring the guardian of a minor, the Court
shall, subject to the provisions of this Section, be guided by what,
consistently with the law to which the minor is subject to, appears in
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the circumstances to be for the welfare of the minor. Adding further,
it was pleaded that if we apply Para 353 of the Personal Law, it leans
in favour of the maternal grandparents.
5. Learned Counsel for the appellants referring to para 353
of the Personal Law dealing with the right to female relations in
default of mother submitted that mother's mother is having all right
over the minor. In the absence of the mother of the female child, the
mother's mother is having all right over the minor female child till
she attains puberty. In support of his submission, referring to a
decision of a Division Bench of the Hon'ble High Court of Andra
Pradesh in Syed Liaquat Hussain vs. Superintendent of Police
and others reported in 2002 (6) ALD 145, learned Counsel for the
appellants submitted that in an identical issue, the Division Bench of
the High Court of Andrapradesh has come to a conclusion that by
virtue of para 353, the mother's mother is having all right over the
minor female child till she attains puberty. Therefore, now in the
present case, admittedly, the girl child, namely, Afsana, who was
born on 18.01.2015 has not even completed 7 years and has
completed only 6 years 11 months. Therefore, the findings and
conclusions reached by the Family Court, disagreeing with the prayer
made by the appellants, are liable to be set aside and the maternal
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grandparents shall be given the lawful custody of the female child
Afsana till she attains puberty, it is pleaded.
6. Opposing the above prayer, Mrs.Dakshayini Reddy,
learned Counsel appearing for the respondents would submit that
although the parties have filed the Guardian Original Petitions under
Section 7, 8 and 25 of the Guardians and Wards Act, 1890, after the
demise of the mother, the father shall be adjudged as the natural
guardian. A conjoint reading of Sections 6 and 17 of the Act takes us
to Section 19 of the Act which makes it further clear that nothing in
this Chapter shall authorise the Court to appoint or declare a
guardian of a person of a minor other than a married female, whose
father or mother is living and is not, unfit to be guardian of the
person of the minor and the father should be granted the custody.
She pleaded that the learned Family Court, rightly appreciating the
said settled legal position, has allowed the GOP.No.19/2017 filed by
the natural father, the 1st respondent herein, thereby declaring him as
a natural father, who is entitled to have the custody of the minor
female child Afsana with a further direction to the appellants herein
to hand over the custody of the minor child Afsana to the 1 st
respondent herein. Therefore, such findings given by the learned
Family Court is unimpeachable in law.
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7. Further relying upon the judgment given by this Court in
(J.Sadiq Batcha and another vs. A.Mohamed Kasim and another in
CMA (MD) No.743/2012 dated 22.03.2013) referred to above stated
that when in that case, one Sadiq Batcha, father of the minor female
child after the demise of his first wife married a widow and through
her also begot an another female child and consequently, left India,
living in abroad with his second wife and child, this Court has rightly
come to the conclusion that he stands as disqualified for the reason
that he has gone away from India, living with the second wife and the
child was borne through the second wife. Therefore, the judgment
cited above by the learned Counsel for the appellants cannot be relied
upon since the same is completely distinguishable in nature.
8. In support of her submissions, learned Counsel for the
respondents also relying upon a decision of the Rajasthan High Court
in Rafiq v. Smt.Bashiran and another reported in AIR 1963
Rajasthan 239 submitted that while considering the provisions of
the Personal Law which are in conflict with the provisions of the
Guardians and Wards Act, 1890, Rajasthan High Court has finally held
that when the provisions of the Personal Law are in conflict with the
Guardians and Wards Act, 1890, the latter shall prevail over the
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former for the reason that Section 19 provides with a notwithstanding
clause saying that nothing in this Chapter shall authorise the Court to
appoint or declare a guardian of the property of a minor whose
property is under the superintendence of a Court of Wards, or to
appoint or declare a guardian of the person of a minor other than a
married female whose father or mother is living and is not, in the
opinion of the Court, unfit to be guardian of the person of the minor.
9. In the present case, the grandmother, namely, Salmas
Begum, of the female minor child is employed in JIPMER as a staff
and the minor female child's mother's sister also after marriage has
been settled down in Chennai. However, the learned Counsel for the
appellants would submit that the minor female child's grandmother
who is employed in JIPMER, their residence is also within the same
campus, therefore, whenever she goes to the office, she drops the
child in the school which is also situated within the campus and her
husband goes and picks her back to the home. But, this fact has not
been properly appreciated by the Family Court. Hence, there is no
question of not taking care of the child by the appellants would arise.
Therefore, the final approach adopted by the Family Court to declare
the father as a Natural Guardian and consequently, directing the
appellants to hand over the custody of the child are liable to be set
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aside.
10. We find merits in the arguments of the learned Counsel
for the father of the child-1st respondent herein. The reason being
that when the law is well settled that so far as the minor female child
is concerned, no doubt, we have been repeatedly apprised by both
the counsels that till the minor female child attains puberty, the
custody will always go with the maternal grandparents. But a
conjoint reading of Section 6, 17 and 19 of the Guardians and Wards
Act, 1890, would clearly take us to the penultimate conclusion that
Section 19 would prevail over Section 16 and 6 of the Act,
resultantly, the father being the natural guardian shall be appointed
as Guardian and he is entitled to have the legal custody of the female
child. As we have already highlighted, whenever the provisions of
the Personal Laws are conflict with the provisions of the Guardians
and Wards Act, 1890, the latter shall prevail. The relevant portion is
given as under :
''Where the provisions of the personal law are in
conflict with the provisions of the Guardians and Wards
Act the latter prevail over the former. The provisions of
Sec.19 of the Guardians and Wards Act prevail over the
provisions of Sec.17. There is a presumption that the
parents will be able to exercise good care in the welfare of
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their children. Where the father of a Mahomedan minor
girl is living and there is nothing to show that he is unfit
to be the guardian of the minor he is entitled to retain the
custody of the minor. The maternal aunt of the mother of
the minor cannot be given custody of the minor on the
ground that under Mahomedan law she has a preferential
right to the custody of the minor.
11. But the question raised in these appeals for consideration
is when the mother died whether her parents are entitled for the
custody of the minor female child or the natural father?
12. In this context, it is relevant to extract Para Nos.353 and
357 of the Mulla's Principles of Mohammedan Law here under :
''353. Right to female relations in default of mother :
Failing the mother, the custody of a body under the
age of seven years, and of a girl who has not attained
puberty, belongs to the following female relatives in the
order given below:
(1) mother's mother, how highsoever;
(2) father's mother, how highsoever;
(3) full sister;
(4) uterine sister;
(5) [consanguine sister];
(6) full sister's daughter;
(7) uterine sister's daughter;
(8) [consanguine sister's daughter];
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(9) maternal aunt, in like order as sisters; and
(10)paternal aunt, also in like order as sisters.''
''357. Right of father and paternal male relations to
custody of boy over seven and of girl who has attained
puberty:-The father is entitled to the custody of a boy over
seven years of age (u) and of an unmarried girl who has
attained puberty. Failing the father, the custody belongs to
the paternal relations in the order given in Section 355
above, and subject to the proviso to that Section. (See
paragraph 355 and the case noted there.) If there be none
of these, it is for the Court to appoint a guardian of the
person of the minor.
2. From this it is evident that the father or the
paternal relations of the boy are entitled to the custody of
the boy only after he completes 7 years and in case of girl
after attaining puberty. In fact, Mr.Md.Sheriff learned
Counsel for the petitioner do not know the fact that the
Guardian and Wards Act also applies to Muslims wherein
the custody of the minor Muslim child up to the age of 7
years shall be with the mother''
13. In this case, the 1st respondent herein-father is the
natural guardian of the minor girl. At the request of the appellants to
perform the last rituals, the father handed over the child to the
appellants herein/Respondents 3 and 4 in G.O.P.No.19/2017 on the
file of the learned District Judge, Family Court, Puducherry. On
completion of the rituals performed, they refused to handover the
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child and shifted the child to Tamil Nadu area. The objections raised
by the father of the minor child shows that the 1st appellant has been
doing money lending business and the 2nd appellant goes for a job
daily morning and their yet another daughter is also going for a job
in a Private Concern. Therefore, they could not look after the child
properly. Whereas the father is having sufficient means to take care
of the child as a Natural Guardian can provide better education and
bright future. According to Muslim Law, the minor is 17 years for
boy and for girl until she attains puberty. Here the age of the minor
is 7 years. As per Indian Majority Act 1875 under the age of 18 is
the minor. Under Muslim Law, the guardianship is called 'HIZANAT'.
Although the mother is not the natural guardian of the child under
Muslim Law, but she has a right to the custody of the child until the
child attains specific age. Here the mother of the child died. For the
reasons mentioned above that the 1st appellant is doing money
lending business and the 2nd appellant goes for a job daily morning
and their another daughter is also going for a job in a private
concern, the father/1st respondent is considered as a natural
guardian under all the schools of Muslim Law and the natural
guardian is also a legal guardian. Therefore, we do not find any
infirmity to interfere with the impugned order.
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14. Accordingly, these Civil Miscellaneous Appeals fail and
the appellants herein are directed to hand over the custody of the
child as ordered by the learned District Judge, Family Court,
Puducherry. However, considering the relationship and the place in
which both the parties are residing in Puducherry within a distance of
1 k.m., the visitation right given by the court below is hereby
confirmed.
15. At this stage, it is agreed between both the parties that
the appellants shall hand over the female child Afsana on
06.01.2022 and the 1st respondent-natural guardian of the child shall
go and take the child with him and further, on every Sunday, the
father of the female child will bring the child from his house at
around 9.00 a.m. and leave her to the appellants' home and
thereafter, on the same day evening at 7.00 p.m., he will come and
take the child back.
16. With the above observations and directions, these Civil
Miscellaneous Appeals are dismissed. No costs. Consequently,
connected Miscellaneous Petitions are closed.
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(T.R.J.,) (D.B.C.J.,)
23.12.2021
Index : Yes/No
Internet: Yes/No
Note : Issue order copy on 02.02.2022/tsi
T.RAJA, J.
and
D.BHARATHA CHAKRAVARTHY, J.
tsi
To
The District Judge, Family Court, Puducherry.
CMA.Nos.3531 and 3532/2021
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CMA.Nos.3531 and 3532/2021
23.12.2021
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