Orissa High Court
Sureiya Khatun Ruhi vs Md. Tousif Alam on 7 December, 2023
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No.144 of 2022
Sureiya Khatun Ruhi .... Appellant
-Versus-
Md. Tousif Alam .... Respondent
Advocates appeared in this case :
For Appellant : Mrs. Ruchi Rajgarhia, Advocate
For Respondent : Mr. M.K. Chand, Advocate
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SIBO SANKAR MISHRA
JUDGMENT
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Date of hearing and Judgment: 7th December, 2023
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ARINDAM SINHA, J.
1. Mrs. Rajgarhia, learned advocate appears on behalf of
appellant. She submits, the appeal has been preferred against
impugned judgment dated 10th May, 2022 denying her client
custody. Two grounds were held against her. Firstly, she did not have
the means to support the girl child and secondly, the girl child might
have attained puberty. The financial degradation has been
compounded by respondent-husband's non-compliance of order for
payment of maintenance. The girl has just become ten years old and
studying in class-IV.
2. She submits, though in Mahomedan law father alone is the
natural guardian but the mother is entitled to custody of her female
child until she attains puberty. The girl was born on 2nd November,
2013 and she has already achieved 10 years age. Any further delay in
granting her client custody would defeat her claim. She refers to
internal page 8 of impugned judgment dated 10th May, 2022 to
submit, reason for denying her client custody was on surmise that by
the end of the matrimonial dispute the minor daughter might attain
her puberty. Hence, it is imperative that there be an order for
granting custody of the girl child to her client.
3. Mr. Chand, learned advocate appears on behalf of respondent-
husband. He submits, appellant has purported claim for custody. This
has been seen through by the Court below on, inter alia, delayed
approached by her. He submits, his client had come to this Court's
premises, for filing affidavit. He was arrested and taken to
Sambalpur for production, in a case initiated on complaint by
appellant. The arrest was three months back and he was in custody
for one day. He opposes the appeal.
4. We, being desirous of examining the parties and the child, all
of whom live in Sambalpur, made direction in our order dated 1st
December, 2023 by paragraph 4 therein, reproduced below.
"4. The Registry is directed to arrange for separate
examination by Court of appellant-wife, respondent-
husband and the minor daughter. The examination will
be by video conference. The persons to be examined will
present themselves in the District Court at Sambalpur at
3:00 P.M. on 7th December, 2023. It must be ensured
that appellant-wife, respondent-husband and the minor
daughter are to be separately examined without
conference amongst any one of them."
5. We examined the child and his father separately. Their
depositions are reproduced below.
Examination of Alisha Fatima (child)
To Court
(i) Where are you studying?
Ans.- Vedic International School.
(ii) In which class?
Ans.- 4th Class.
(iii) How do you go to school?
Ans.- By school bus.
(iv) Who drops you at the bus stop?
Ans.- Papa.
(v) Who picks you up on return from the school?
Ans.- Papa.
(vi) What does your father do?
Ans.- He is working at office.
(vii) When do you go to school?
Ans.- 7 in the morning.
(viii) When do you return?
Ans.- 2.40 PM.
(ix) Who all are there in your home?
Ans.- Papa, Mummy and my sister.
(x) What is the name of your sister?
Ans.- Aayt Naaz. She is two years old.
(xi) Do you have any relative in Sambalpur?
Ans.- Yes, my aunt and her name is Hena.
(xii) Do you have maternal grandmother?
Ans.- Yes.
(xiii) Where does she stay?
Ans.- Balasore.
We are told, the maternal grandmother is mother of the second
wife.
Examination of Md. Tousif Aslam (father)
To Court
(i) How long has the child been with you?
Ans.- Seven years.
(ii) Why have you not allowed the child to meet her natural
mother?
Ans.- She did not take responsibility in the beginning.
The child has always been with me. I have looked after
her.
(iii) Is the child aware that she has a natural mother?
Ans.- Yes.
6. Mrs. Rajgarhia relies on judgment of the Supreme Court
in Nil Ratan Kundu v. Abhijit Kundu, reported in (2008) 9
SCC 413. She submits, in that case the father was denied
custody. Facts were, mother of the child (a boy), had died. The
death was in suspicious circumstances. There was
investigation. Inter alia, the paternal grandmother had
absconded on happening of the death. The child was found
sick. The trial Court had directed custody to be given to the
father. The High Court on appeal had confirmed the order. The
maternal grandfather was appellant before the Supreme Court.
In the judgment a passage from the High Court's judgment
stands reproduced. We too reproduce it below.
"We have gone through the evidence adduced by both
sides and also heard the child in order to decide the
question of the welfare of the said child. During our
conversation with the child we have observed with great
anxiety that the child has been tutored to make him
hostile towards his father. In this connection it is worth
mentioning here that the learned Court below also held
that the O.P's wanted to wipe out the existence and
identity of father from the mind of the petitioner's son
and if it so, then it may be disastrous for the future of
the petitioner's son"
In context of the judgments, both of the High Court and the
trial Court having been set aside, we reproduce paragraph 84
from judgment of the Supreme Court.
"84. We have called Antariksh in our chamber. To
us, he appeared to be quite intelligent. When we
asked him whether he wanted to go to his father
and to stay with him, he unequivocally refused to
go with him or to stay with him. He also stated that
he was very happy with his maternal grand-parents
and would like to continue to stay with them. We
are, therefore, of the considered view that it would
not be proper on the facts and in the circumstances
to give custody of Antariksh to his father-
respondent herein."
7. Having examined the child, we could not elicit from her
that she was aware she had a natural mother or another mother.
She seemed very happy in her situation of going to school and
staying with her step-mother and step-sister. Mr. Chand
submits, pursuant to direction by earlier coordinate Bench,
parties and the child had travelled to Cuttack and presented
themselves before the Court. The child refused to even talk to
appellant. Mrs. Rajgarhia submits, the child was not allowed to
talk with her client, her natural mother.
8. We have put questions to respondent-husband. He was
categoric in saying his daughter is aware of her natural mother
yet we could not elicit it from her. It is clear, the daughter is
aware and does not want to be removed from where she is.
That is the impression we have got.
9. Mrs. Rajgarhia points out, according to Muslim law,
minority of Muslims terminate on attainment of puberty,
which according to Sunni law, is presumed on completion of
the fifteenth year. Conclusion is inevitable that having been
with her father for last seven years she has been in a
surrounding away from her natural mother. How and why this
has happened is not the question to be decided here. Result of
it is the child does not know or want to acknowledge existence
of her natural mother. It is a tragedy but in the facts and
circumstances we will not interfere to remove the child from
where she wants to be, to give custody to the mother.
10. Reverting back to Nil Ratan Kundu (supra), the
Supreme Court said, in deciding a complex question as to
custody of minor, a Court of law should keep in mind relevant
statutes and rights flowing therefrom. But such cases cannot be
decided solely by interpreting legal provisions. It is a humane
problem and is required to be solved with human touch.
Relying on said declaration, though appellant is entitled to
custody till the child attains 15 years of age, we are not
inclined to interfere in appeal with impugned judgment.
However, the father must bear in mind that it is also to welfare
of the child to be aware and understand as and when she can,
she does have a natural mother, who also loves her.
11. Power of appellate Court allows for passing any order
which ought to have been passed or made as well as to make
such further order as the case may require. We direct for
appellant to have visitation right, to be exercised on the
husband bringing the child to Centre of The Child Welfare
Committee Office, Sambalpur, Collectorate Building,
Sambalpur to meet with appellant every Sunday between 4.00
P.M and 6.00 P.M without presence of respondent-husband in
the meeting chamber. This direction will subsist till the child
achieves 15 years age. After 6 months from date appellant will
be at liberty to approach the family Court for variation of the
direction on basis of need arisen by compliance thereof.
12. The appeal is disposed of.
(Arindam Sinha)
Judge
(S.S. Mishra)
Judge
Jyoti
Location: HIGH COURT OF ORISSA
