Madras High Court
S.Katheeja Nasriya vs M.A.Kazhi Alaudeen on 8 March, 2021
CMA Nos.1419 and 1423 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 08.03.2021
CORAM:
THE HONOURABLE MR. JUSTICE T.RAJA
and
THE HONOURABLE MR. JUSTICE G.CHANDRASEKHARAN
CMA Nos.1419 and 1423 of 2020
S.Katheeja Nasriya ... Appellant in both CMAs.
..vs..
M.A.Kazhi Alaudeen ... Respondent in both CMAs.
These Civil Miscellaneous Appeals filed under Section 19 of the
Family Court's Act, 1984 read with Section 47 of the Guardians and
Wards Act, 1890, against the common order passed by the learned VII
Additional Judge, Family Court, Chennai in GWOP No.2202 of 2017 and
I.A.No.1949 of 2017 respectively dated 22.07.2020.
For Appellant in both CMAs. : Mr.R.Abdul Mubeen
For Respondent in both CMAs. : Mr.George Graham
1/19
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CMA Nos.1419 and 1423 of 2020
JUDGMENT
(Judgment of the Court was delivered by G.CHANDRASEKHARAN, J.,)
These Civil Miscellaneous Appeals are filed against the common
order passed by the learned VII Additional Judge, Family Court, Chennai
in GWOP No.2202 of 2017 and I.A.No.1949 of 2017 in GWOP No.2202
of 2017 on 22.07.2020.
2. The appellant, as the petitioner, filed a petition under Section
7 of Guardian and Wards Act, 1980 to appoint her as guardian of wards
and to have the custody of minor Abubaker and minor Sheik Abdul
Kader, aged 10 years and 9 years respectively against her former husband
Thiru.M.A.Kazhi Alaudeen. The said Kazhi Alaudeen filed a counter
claim in I.A.No.1949 of 2017, to appoint him as guardian of minor
Abubaker and minor Sheik Abdul Kader and to have their custody with
the prayer to dismiss the petition filed by the appellant.
3. The facts of the case, in brief, are as follows:-
Appellant's first marriage with the respondent was held on
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09.05.2004. Out of the said wedlock, two sons master Abubaker and
master Sheik Abdul Kader were born on 11.03.2007 and 14.08.2008
respectively. Due to strained marital relationship, the marriage between
the appellant and respondent came to end by the appellant obtaining
divorce (by kula) during June 2012. Thereafter, respondent remarried one
Ayisha and the appellant also got remarried with Riyaz Ahamed on
15.07.2016. After the first marriage was broken, appellant resided at
Kayalpattinam along with two sons for some time and now residing in
Choolaimedu, Chennai. Master Abubaker was studying 6th standard.
Master Sheik Abdul Kader is a problematic child having 'low average
intelligence with behaviour problem' and he is under treatment. At the
age of studying 5th standard, he is studying 3rd standard in SIET Boys
School, Chennai. Appellant is taking care of minor children.
Respondent is trying to get the custody of minor children by hook and by
crook. He tried to kidnap the children and spoil the peaceful marital life
with the appellant's second husband Riyaz Ahamed. For the paramount
interest of the minor children, it is necessary that the custody of the minor
children should be left with appellant. Therefore, this petition.
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4. Respondent opposed the claim of the appellant by filing
counter claim. He admitted his marriage with appellant and the birth of
two sons. He disputed appellant's claim that the second child is suffering
from 'low average intelligence with behaviour problem', but claimed that
he has 'low average intelligence in studies and not in his behaviour'. He
has taken the second son to many physicians at Trichy, Chennai and CMC
at Vellore for his treatment. Appellant, after her second marriage, is not
able to take care of welfare of the minor children. Till her second
marriage, respondent was closely monitoring the progress of the children
and also was providing for their maintenance. Appellant's second
husband Riyaz Ahamed has two children through his first wife.
Appellant, her parents, respondent's two sons and Riyaz Ahamed's
children are staying with Riyaz Ahamed in a small house. Neither
appellant nor Riyaz Ahamed has regular or sufficient income to meet the
expenses and provide a quality life to the minor children. Riyaz Ahamed
is a total stranger to respondent's minor children. After the appellant's
second marriage, respondent sought custody of minor children and the
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matter was referred to Islamic scholars. After hearing both sides, Islamic
scholars issued temporary fatwa giving custody of minor children to
appellant for the reason that respondent's second wife was carrying at that
time and second son was having learning problem. It was further
decided that after completion of academic year 2016-17, a permanent
fatwa will be issued after hearing the parties. Under the said
circumstances, custody of minor children were entrusted with the
appellant on temporary basis. As per temporary fatwa, custody of minor
children was handed over to the respondent during vacation. On
02.06.2017, appellant kidnapped minor children from respondent's house.
Respondent has given a police complaint before Arumuganeri police
station, Thoothukudi District. Respondent owns properties, own house
and runs lucrative business. He has sufficient means to provide good
food, clothing, accommodation, education, tuition, transport, medical
care, entertainment e.t.c., to the minor children. Appellant and her
second husband are not able to provide these necessities and quality life
to the minor children. Respondent's family own three schools in
Kayalpattinam at Thoothukudi District, where the second son can be
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provided good education with personal care. Respondent is a football
player and he can engage his children in football and other sports
activities. These facilities cannot be provided by the appellant.
Therefore, respondent prayed for the custody of minor children and the
dismissal of appellant's petition.
5. During the trial, PW.1 to PW.4 were examined on the side of
appellant and Exs.P1 to P40 were marked. RW.1 to RW.3 were examined
on the side of respondent and Exs.R1 to R81 were marked. On
considering the oral and documentary evidence, learned VII Family Court
Judge, Chennai rejecting the claim of appellant for the custody of minor
children and allowed the counter claim by respondent to appoint him as
guardian of minor children master Abubaker and master Sheik Abdul
Kader. Appellant was granted visitation right. Against the said order,
appellant preferred two CMAs. ie., CMA No.1419 of 2020 against the
dismissal of GWOP.No.2202 of 2017 and CMA No.1423 of 2020 against
allowing I.A.No.1949 of 2017 in GWOP No.2202 of 2017.
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6. Points for consideration in both the appeals are:-
1. Whether the finding of trial Court that the welfare of minor
children master Abubaker and master Sheik Abdul Kader would
be better, if they are in the custody of respondent is correct ?
2. Whether these appeals can be allowed?
7. The issue involved in this case is who is best person to have
the custody of minor children, master Abubaker and master Sheik Abdul
Kader whether the appellant S.Katheeja Nasriya or the respondent
M.A.Kazhi Alaudeen. When it comes to custody of minor children,
welfare of minor children is the paramount consideration of the Court.
Admittedly, appellant and respondent got married on 09.05.2004 and both
the minor children were born to them. Appellant obtained divorce from
respondent during June 2012. Thereafter both got remarried. Though the
evidence of parties and witnesses centered around the entitlement of
custody of minor children, the witnesses also spoke about peripheral
issues like, the reasons for divorce between the appellant and respondent,
cause for their second marriage, issues arose between the families due to
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the marital dispute, the marriage and subsequent divorce between
respondent's sister and appellant's brother e.t.c., Admittedly the appellant
and respondent were closely related before the marriage. In fact the
respondent, appellant's father and her brother were working in Dubai and
they were living in a flat rented by them by sharing the household and
other expenses. That was the closeness between two families.
Appellant's brother was married to respondent's sister. Their marriage
also ended in failure. The reason, according to respondent, was the
failed marriage between him and appellant and also the issue with regard
to the custody of minor children. The parties and witnesses have given
elaborate evidence with regard to these peripheral issues. But we are not
concerned about those issues. This Court's focus and endeavour is only
to find out who is the best person to have the custody of minor children.
8. It is settled proposition of law that the welfare of the minor
children is the paramount consideration for the Court when it comes to
decide upon the custody of minor children. A court while dealing with
custody cases, is neither bound by statutes nor by strict rules of evidence
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or procedure nor by precedents. The court has to give due weight to a
child’s ordinary comfort, contentment, health, education, intellectual
development, and favourable surroundings. But over and above physical
comforts, moral and ethical values cannot be ignored. They are equally,
or even more important, essential and indispensable considerations.
(i) In the case reported in (2019) 7 SCC 490 (Sheoli Hati v.
Somnath Das), the Hon'ble Apex Court has held as follows:-
“ 19. Every child has right to proper health and
education and it is the primary duty of the parents to
ensure that child gets proper education. The Courts in
exercise of parens patriae jurisdiction have to decide
such delicate question. It has to consider the welfare of
the child as of paramount importance taking into
consideration other aspects of the matter including the
rights of parents also. In reference to custody of a
minor, this Court had elaborated certain principles in
Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha
Dolikuka, (1982) 2 SCC 544, where this Court again
reiterated that welfare of the child is of paramount
importance. In paragraph No.17, following was laid
down:
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“17. The principles of law in relation to the
custody of a minor appear to be well
established. It is wellsettled that any matter
concerning a minor, has to be considered and
decided only from the point of view of the
welfare and interest of the minor. In dealing
with a matter concerning a minor, the Court has
a special responsibility and it is the duty of the
Court to consider the welfare of the minor and
to protect the minor's interest. In considering
the question of custody of a minor, the Court
has to be guided by the only consideration of
the welfare of the minor.”
(ii) In an unreported judgment of the Hon'ble Supreme Court in
a case between Soumitra Kumar Nahar v. Parul Nahar, it has been held
as follows:-
“ 31. It is also well settled by the catena of
judgments of this Court that while deciding the
matters of custody of the child, primary and
paramount consideration is always the welfare of the
child. If the welfare of the child so demands, then
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technical objections cannot come in the way. However,
while deciding the welfare of the child, it is not the
view of one spouse alone which has to be taken into
consideration. The Courts should decide the issue of
custody on a paramount consideration which is in the
best interest of the child who is the victim in the
custody battle. ”
9. The appellant examined herself as PW.1 and has given
elaborate evidence as to how she had taken care of children after their
birth and after her first marriage was broken. It is her evidence that she
is a B.Com graduate with Masters in Business Administration. She had
also underwent Intelligence Teacher Training Program in specific
learning disability or dyslexia from Madras Dyslexia Association, which
helped her to take care of her second son. It is her evidence that her
second husband Riyaz Ahamed is an understanding father and he is also
taking care of the minor children as his own children. He has sufficient
income to provide good food, accommodation, education and all the
necessary and incidental expenses relatable to the minor children. PW.2
is her father. He had also given evidence and produced documents to
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show that he owns properties and has sufficient income and he is
prepared to support his daughter and the minor children. His income tax
returns are produced as Exs.P26 and P27. So is also the evidence of
PW.3, mother of appellant. Her income tax return is produced as Ex.P28.
PW.4, appellant's second husband Riyaz Ahamed also stepped in, in
support of appellant and produced documents to show that he is a man of
means and is capable of maintaining not only his own children, but also
the children of appellant. Sale deeds and lease deeds in his name and his
income tax returns are produced as Exs.P29, 30, 35, 36, 37. On the side of
respondent, the respondent was examined as RW.1 and he produced lot of
documents to show his income and wealth, his interest in football, jointly
owning successful businesses with his brother, running of schools by
family members and running of hospitals by family members. He
produced income tax returns of the company. That apart, he has also
produced his personal income tax returns to show his capacity to provide
comfortable life, education, sports and other extra curricular activities to
the minor children. He is supported by RW.2 and RW.3. RW.2 was the
person, who was arranging for Islamic scholars meeting and issuance of
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fatwa. RW.3 is the second wife of respondent. She claims that she loves
the children of respondent through his first wife and she undertakes to
take care of the minors welfare by providing care, love and affection.
10. The consideration of oral and documentary evidence
produced by both the parties shows that economically the respondent is
better placed than the appellant and her family members. We are more
concerned about the capacities of the parties to the lis to provide good
living atmosphere with good education, health care, sports e.t.c., to the
minor children. Appellant is a woman. She has not produced any
material to show her independent source of income. She has to depend
only on her second husband Riyaz Ahamed to maintain not only her
minor children, but also the two children born to his second husband
Riyaz Ahamed through his first wife. Admittedly, they are living in
rented house in Choolaimedu, Chennai. Appellant's father-PW.2 is
willing to help the appellant in maintaining the minor children. Even his
properties and income details will not match economic wellness of the
respondent. PW.2 may not be in a position to support the appellant and
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the minor children for a long time in view of his advancing age and that
he has also a son to claim share from him. We are concerned about the
appellant's individual ability to provide reasonably comfortable life to
minor children and not with the help of her father.
11. Some of the documents produced by the respondent like
Exs.R28 to R.33, R36 to R.39 show that the respondent is one of the
directors of United TAS EXIM Private Limited and Team Granite Private
Limited. The income tax returns, profit and loss statement, balance sheet
of these companies show that these companies are being run profitably.
Respondent's personal income tax returns also show that he has about
Rs.6,00,000/- annual income. The broucher of KMT hospital has been
produced as Ex.R28. Ex.R60 letter from KMT hospital shows that the
hospital has speech, audio and occupational therapy facility with facility
to provide special attention to slow learning children. Ex.R61 letter
shows that Wisdom Public School has appointed a Montessori trained
special teacher to take care of and give special attention to slow learning
students. Respondent has also produced Exs.R62 to R64 to show the
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facilities available to provide special care to children with learning
disability near Kayalpattinam. Respondent has produced Exs.R19, R20,
R21 and R71 photographs to show how he was very close with the minor
children. It is an admitted fact that he is a football payer and he is an
empowered person in Kayal Veteran Football Club. Photos and
certificate of registration of Kayal Veteran Football Club are produced as
Exs.R50 and R52. He produced Exs.R40 and R41 to show that he owns
a house with two floors. He also produced Exs.R42 to R46 sale deeds to
show that he owns landed properties. When compared to the oral and
documentary evidence produced on the side of the respondent with regard
to his economic status, the oral and documentary evidence produced on
behalf of the appellant shows that neither appellant nor her parents and
second husband possess satisfactory level of income and properties,
which yield income. Thus, it is clearly proved on the side of respondent
that the respondent has more than sufficient means to maintain the minor
children with good accommodation, education, sports, medical care e.t.c.
12. It is seen from the evidence of appellant that the respondent
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was paying Rs.15,000/- per month towards minor children's education
and maintenance apart from spending school fees and medical expenses.
She admitted that the respondent was working as General Manager in
Emirate Bulk Logistics Company in Dubai. Before that, he was working
in Ahmed Ramadhan Juma Establishment and Al Jamiah Trading
Company in Dubai. She admitted that minor children used to stay with
respondent during school holidays. She admitted the mediation held by
Islamic scholars and issuance of temporary fatwa. Though she claimed in
her petition that respondent tried to kidnap the minor children, she gave
contrary evidence and stated that neither respondent nor his relatives
kidnapped the children. She stated that she had not given any complaint
against respondent for the alleged attempt of kidnapping of minor
children. She had also admitted that she sent the children during May
2017 to the respondent's house at Kayalpattinam and on 02.06.2017, she
brought the minor children without the knowledge of respondent. She
admitted that the house, in which they are living in Choolaimedu, has two
bed rooms and she had also taken on lease another flat with single bed
room. She admitted that the respondent constructed a house in
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Kayalpattinam.
13. Thus, it is clear from her own evidence that the respondent is
better off in terms of economic condition and he was providing
maintenance, education and medical expenses of minor children till 2017.
It shows that when both the minor children were in the custody of
appellant, respondent was taking care of the minor children. The minor
children used to go to respondent's house at Kayalpattinam during
vacations and were happily spending time with him. It is seen from the
documentary evidence produced that the respondent's family owns and
holds important position in Schools, namely Wisdom Public School and
Elkay Higher Secondary School in Kayalpattinam. Facilities are
available in and around Kayalpattinam to take care of children with
learning problem. As a footballer himself, respondent can coach the
minor children to become good football players. The children suffering
from dyslexia may be slow learners, but there are cases persons with
dyslexia excel in various sports, like Magic Johnson in basketball, Sir
Steve Redgrace in Rowing, Mohammad Ali in Boxing e.t.c., Therefore,
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this Court is of the considered view that the respondent can provide good
living environment with good education, health care, sports e.t.c., to the
minor children than the appellant.
14. The learned trial Judge has considered every aspect of claim
and counter claim made by the parties and rightly decided to give custody
of the minor children to respondent, who is father of minor children with
visitation right to appellant. We find no reason to interfere with the well
reasoned common order of the learned VII Additional Family Court Judge
in GWOP No.2202 of 2017 and I.A.No.1949 of 2017 in GWOP No.2202
of 2017 on 22.07.2020 and consequently, these appeals are dismissed.
Parties are directed to bear their own costs. The points are answered as
above.
(T.R.J.,) (G.C.S.J.,)
mra 08.03.2021
Internet: Yes
Index : Yes/No
Speaking/Non speaking order
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CMA Nos.1419 and 1423 of 2020
T.RAJA, J.,
and
G.CHANDRASEKHARAN, J.,
mra
To
1. The VII Additional Judge, Family Court, Chennai.
CMA Nos.1419 and 1423 of 2020
08.03.2021
https://www.mhc.tn.gov.in/judis/
