Mubarik vs Rasida Presently
2022 Latest Caselaw 11808 Raj

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                D.B. Civil Misc. Appeal No. 1846/2018

Mubarik S/o Shri Nandushah, Aged About 33 Years, Ward No.
12, Churu, District Churu.
                                                                   ----Appellant
                                   Versus
1.      Rasida Presently W/o Imran @ Kalu, B/c Quaji (Fakir),
        R/o Gaon Bajav, Tehsil Udaipurwati, District Jhunjhunu.
2.      Imran @ Kaul S/o Shri Mumtaj, B/c Quaji (Fakir), R/o
        Gaon Bajav, Tehsil Udaipurwati, District Jhunjhunu,
                                                                ----Respondents


For Appellant(s)         :     Mr. I.R. Choudhary
For Respondent(s)        :     Mr. Saurabh Soni



              HON'BLE MR. JUSTICE SANDEEP MEHTA
               HON'BLE MR. JUSTICE FARJAND ALI

                                Judgment

DATE OF JUDGMENT                    :::                         22/09/2022

BY THE COURT:

Notice issued on an application under Section 5 of the

Limitation Act for condoning the delay occurred in filing of the

appeal has duly served. Shri Saurabh Soni, Advocate puts in

appearance on behalf of the respondents. Thus, service is

complete. It is pointed out that there is delay of 24 days in filing

the appeal.

Heard on application for condonation of delay. For the

reasons and grounds mentioned in the application, supported with

an affidavit, the same is allowed. Let the appeal be treated within

limitation.

(2 of 5) [CMA-1846/2018]

With the consent of the learned counsel for the parties, the

matter is heard finally at the stage of admission.

The instant appeal under Section 47 of the Guardians &

Wards Act, 1890 read with Section 19 of the Family Courts Act has

been filed against the order dated 16.05.2018 passed by the

learned Family Court, Churu in Family Case No.413/2014

(353/2013) whereby the application for custody of ward of the

appellant has been dismissed.

Bereft of elaborate details, succinctly stated the facts of the

case are that marriage of the appellant-Mubarik was solemnized

with the respondent No.1-Rasida on 22.05.2001 and from their

wedlock a baby boy named Master 'S' was born. He was five years

of age at the time of filing of the custody application.

It is not disputed that owing to some marital discord

between the appellant and the respondent No.1, they started

living separately and on 15.02.2013, divorce took place between

them in accordance with Muslim rites. Divorce deed was executed

between the spouses on the very same day on a stamp paper of

Rs.100/-.

As per the averments made in the petition seeking custody

of the Child Master 'S' under Section 14 of the Guardians & Wards

Act, 1890, the respondent-wife, after execution of divorce deed,

performed second marriage with one Imran @ Kalu respondent

No.2 herein. It is pleaded that respondent No.2 was previously a

married person and his earlier wife begot four children and

thereafter passed away. It is alleged that respondent No.2 was a

person of grey shades and was not taking care of their son Master

'S'. He has no concern for the education of the child and as such if

the custody of child will not be given to him then his son's future

(3 of 5) [CMA-1846/2018]

will be ruined. It is pleaded that the appellant is biological father

of child Master 'S' and he has capacity to provide better education

and good future prospects to him. He is the natural guardian of

the child, therefore, his custody may be handed over to him.

Refuting the averments made in the custody petition; the

respondent-wife filed a written statement averring therein that

though she had performed remarriage with Imram @ Kalu

(respondent No.2) but she takes good care of her child. The child

was a boy aged 6-7 years, therefore, he was in need of mother's

care. It is specifically pleaded that the Divorce Deed dated

15.02.2013 also postulates an agreement between the parties

that after the divorce, the custody of the child will remain with his

mother. The sanctity of which has never been questioned and

thus, the terms and conditions of the Deed dated 15.02.2013 are

mandatorily applicable on both the parties.

The learned trial Court after framing the issues, recorded

the evidence adduced by the parties in support of their respective

claims and thereafter, hearing the counsel for the parties, vide

impugned order dated 16.05.2018 dismissed the petition filed by

the appellant seeking custody of the child. Hence this appeal.

The welfare of a child is paramount consideration while

adjudicating a plea for custody of child. The baby boy Master 'S'

was aged 5 years when the petition was filed; who was being

taken care of by his biological mother. No evidence has been

brought on record to show that the child was abandoned or was

not properly taken care by his mother or by her present spouse

Imran @ Kalu. It can be assumed that a boy of tender age needs

his mother for all his daily course and pursuits. The respondent

No.1 wife has been examined in the trial as AW-1. In her affidavit

(4 of 5) [CMA-1846/2018]

submitted in the form of examination-in-chief, she has

categorically deposed that only one girl child was begotten by

earlier wife of Imran @ Kalu, who born on 03.03.2014 and thus

she has only two children one from appellant i.e. Master 'S' whose

custody is sought for and another is a girl child of Imran who was

begotten by his earlier wife. She underwent sterilization and

therefore, now she cannot conceive. She further deposed that she

takes care of the child with utmost sincerity and the child goes to

school regularly, her husband Imran @ Kalu is serving abroad thus

both the children are her only ray of hope in her senility. It is

specifically deposed by her that the appellant, at his own free will

and volition executed the Deed dated 15.02.2013, as per which

the right to have custody of the child Master 'S' was given to her.

It is also recited in the Deed dated 15.02.2013 that after divorce,

the appellant will not agitate the issue regarding child custody.

We have minutely gone through the contents of Ex.D-1

'Talaknama' executed in between the appellant and respondent

No.1. The execution of the Deed has not been disputed by the

appellant thus, the agreed conditions stipulated in the Deed are

binding upon both the parties. There is clear recital to the effect

that the custody of the child Master 'S' will remain with

respondent No.1-wife and the appellant will not pay a pittance for

his maintenance. The signature of the appellant is appended on

the Deed (Ex.D-1) and document was notorised in the presence of

two witnesses.

Section 94 of the Evidence Act envisages Exclusion of

evidence against application of document to existing facts.--When

the language used in a document is plain in itself, and when it

(5 of 5) [CMA-1846/2018]

applies accurately to existing facts, evidence may not be given to

show that it was not meant to apply to such facts.

A bare look of Section 94 of the Evidence Act makes it

abundantly clear that when the language used in the document is

unambiguous and when it applies to the facts correctly mentioned,

evidence cannot be given that is to be proved that it was not

meant to apply on such facts. Here, in the present case, at one

hand the appellant relies upon the document and pleaded that

contents of the document regarding divorce and maintenance to

be true but on the contrary, he seeks custody of child which he

gave to his wife voluntarily.

This Court is of the firm view that a party cannot be

permitted to blow hot and cold for the same breath and thus, the

appellant will not be permitted to pick and choose conditions of

the Deed of agreement dated 15.02.2013 which is favourable to

him and he cannot be allowed to dispute the other conditions of

the same document specially when the very execution of the Deed

has not been challenged.

Accordingly, the instant appeal filed by the appellant is

devoid of any merit and the same is hereby dismissed.

Record be sent back forthwith.

                                   (FARJAND ALI),J                                        (SANDEEP MEHTA),J
                                    11-Mamta/-









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