Madras High Court
A.Abitha Rahman vs A.Shiek Mujibur Rahman on 5 April, 2023
C.M.A.(MD).No.938 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.938 of 2017
and
C.M.P(MD) No.9896 of 2017
A.Abitha Rahman .....Appellant/Respondent
-vs-
A.Shiek Mujibur Rahman .... Respondent/ Petitioner
PRAYER: Civil Miscellaneous Appeal filed under Section 47 of Guardian
Wardship Act, 1890, against the fair and decretal order dated 13.09.2017
made in G.W.O.P.No.193 of 2014 on the file of Principal District Court,
Tuticorin.
For Appellant : Mr.M.Mohammed Ibram Saibu
For M/s.Ajmal Associates
For Respondent : Mr.M.P.Senthil
JUDGMENT
The present Civil Miscellaneous Appeal has been filed by the
mother/appellant challenging the order of the Principal District Court,
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C.M.A.(MD).No.938 of 2017
Tuticorin, passed in G.W.O.P.No.193 of 2014, wherein, the guardianship of
two minor sons was handed over to the father.
2. The respondent herein had filed G.W.O.P.No.193 of 2014, before the
Principal District Court, Tuticorin, seeking custody of two minor sons from
the mother viz., appellant herein. At the time of filing of G.W.O.P.No.193 of
2014, the elder son was aged about 10 years and the younger son was aged
about 9 years. According to the father, he is Imam in a Mosque and he seeks
the custody of both the minor sons from the mother.
3. The mother had filed a detailed counter contending that the father is
not properly taking care of the sons and they are residing separately. The sons
being very tender in age, they should be with the mother and she is taking
care of the minor sons properly. She had also made some allegations that the
father had married another lady in the year 2009 and therefore, the custody of
the minor sons should not be handed over to the father.
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C.M.A.(MD).No.938 of 2017
4. The learned Principal District Judge, Tuticorin, had arrived at the
following findings:
(i) The mother had already given a Kula and she had remarried one
Sulthan and she had got three children through her second husband.
Therefore, the mother is taking care of five children along with the two minor
sons whose custody is in dispute in the present appeal.
(ii) Though the husband has taken a stand that unilaterally, the wife had
given Kula (Divorce), the husband has not initiated any further proceedings
for the cancellation of the said Kula.
(iii) The husband/father is residing at Chennai and he is an Imam in a
Pallivasal and he has also got remarried to one Fathima Beevi. Though it is
alleged by the wife that it is an illicit intimacy, according to the husband, he
entered into the second marriage only with the permission of his first wife.
(iv) Both the minor sons were produced before the Court and the Court
enquired them on 15.03.2017. Both the minors have expressed that they are
not willing to go with their father and they expressed their willingness to
continue in the custody of their mother.
(v) The Court had again called them in the Chamber and they have
expressed their intention to reside with their mother. However, the trial Court
felt that they have been tutored by the mother.
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C.M.A.(MD).No.938 of 2017
(vi) The trial Court relied upon Section 352 of the Mohammedan Law
to arrive at a conclusion that the mother is entitled to have the custody of the
child up to seven years old.
(vii) The trial Court further found that when the dispute is between the
father and the mother, only the welfare of the minor should be predominant
and the rights of father and mother cannot be considered.
(viii) The trial Court further found that the mother is already having the
custody of five children and she has not established her financial background
in order to take care of all the five children.
(ix) However, the father being an Imam in a Pallivasal, he will have a
better opportunity to maintain the two minor sons.
(x) Though the wife had contended that she had received a sum of Rs.
10,00,000/- (Rupees Ten Lakhs only) from her family properties, she has not
established the said income.
(xi) Just because the father has entered into the second marriage, it is
not a bar for granting custody of the minor children to him when it is proved
that he is having a proper financial background to maintain both his sons.
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C.M.A.(MD).No.938 of 2017
(xii) The trial Court further found that both the sons are teenagers. It is
better to be under the custody of the father. Based upon the above said
findings, the trial Court allowed G.W.O.P.No.193 of 2014 and granted the
custody of both the minor sons in favour of the father. This order is under
challenge in the present appeal filed by the mother.
5. According to the learned counsel appearing for the Mother, right
from the beginning, both the minor sons are in her custody. They have not
been taken care of by the father at any point of time. At this length of time, if
the minor children are taken away from the custody of the mother, that would
cause great mental disturbance to both the minor sons.
6. The learned counsel appearing for the appellant had further
contended that the father is a permanent resident of Chennai. Now, both the
sons are studying in Tuticorin. If the custody of the children is transferred to
the father, their education would get affected. He further contended that the
minor sons are aged about 11 and 14 years. At the time, the Court enquired
them, the minor sons have categorically informed the Court that they would
like to continue in the custody of their mother and they did not want to be
transferred to the custody of the father. The wishes of sons of such maturity
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C.M.A.(MD).No.938 of 2017
and age, ought to have been properly appreciated by the Trial Court before
ordering the transfer of custody in favour of the father.
7. The learned counsel appearing for the appellant had further
contended that the father being an Imam is likely to be transferred from one
Pallivasal to another Pallaivasal and therefore, the education of the minor
sons would be affected.
8. The learned counsel appearing for the appellant further contended
that the father had developed illicit intimacy with one Fathima Beevi and he
claims that he had remarried her. In such circumstances, leaving the two
minor sons in the custody of the second wife would not be in the welfare of
the sons.
9. The learned counsel appearing for the appellant had further
contended that the elder son viz., Ahamad Masuthpilal had already attained
majority on 23.12.2021. The younger son viz., Mohamed Aloudeen Kilje will
be attaining majority in March 2024. At this relevant point of time, the
custody of the children may not be disturbed.
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C.M.A.(MD).No.938 of 2017
10. Per contra, the learned counsel appearing for the respondent/father,
on instructions, submits that the younger boy is about to attain majority in
March 2024. Therefore, considering the fact that they have been in the
custody of the mother for such a longer period, the said custody may be
retained by the mother till the younger son attains majority.
11. However, the learned counsel appearing for the respondent
contends that the mother is continuously refusing to permit the father for
visitation rights of both the sons and he seeks for having visitation rights of
the minor sons.
12. Considering the above said facts, this Court is inclined to pass the
following order:
(i) The elder son, viz., Ahamad Masuthpilas had attained a majority on
23.12.2021 and therefore, no further orders are called for relating to the
custody of the said elder son.
(ii) As far as the younger son viz., Mohamed Aloudeen Kilje is
concerned, his custody shall remain with the appellant/mother.
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C.M.A.(MD).No.938 of 2017
(iii) The respondent/father shall have visitation rights to meet his
younger son viz., Mohamed Aloudeen Kilje on third Sunday of every month
at Rajaji Park, Madurai, between 10.00 a.m to 01.00 p.m.
(iv) The appellant/ mother is directed to comply with this order in letter
and spirit. The order shall take effect from May 2023 onwards.
13. With the above said observations, this Civil Miscellaneous Appeal
stands partly allowed. There shall be no order as to costs. Consequently,
connected Miscellaneous Petition is closed.
05.04.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
To
1. The Principal District Court,
Tuticorin.
2. The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.938 of 2017
R.VIJAYAKUMAR,J.
ebsi
C.M.A.(MD)No.938 of 2017
05.04.2023
https://www.mhc.tn.gov.in/judis
