Rahmathullah Khan Shahnoor vs Kashifa Fatima
2022 Latest Caselaw 3004 Tel

      THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
                        AND
     THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

CIVIL REVISION PETITION Nos.707 AND 717 OF 2022
        AND WRIT PETITION No.23734 OF 2022

COMMON ORDER:       (Per the Hon'ble Dr.SA,J)


     Since the facts of the case, parties to the litigation and the

issue involved in all these petitions are one and the same, these

petitions are taken up together and are being disposed of by way

of this common order.


2)   CRP No.707 of 2022, under Article 227 of the Constitution

of India, is filed by the revision petitioner/father, aggrieved by

the common order, dated 08.03.2022, passed in I.A.No.33 of

2022 in I.A.No.4 of 2022 in O.P.No.7 of 2022, by the Principal

Judge, Family Court-cum-Additional Chief Judge, City Civil Court

at Hyderabad, whereby, the petition filed by the respondents/

mother and grandfather of the minor child, by name, Master

Muhammad Shah Ali Khan under Section 151 of CPC, seeking a

direction to the revision petitioner/father to produce the minor

child and handover his custody to them, was allowed.

3) CRP No.717 of 2022, under Article 227 of the Constitution

of India, is filed by the revision petitioner/father, aggrieved by

the common order, dated 08.03.2022, passed in I.A.No.4 of 2022

in O.P.No.7 of 2022, by the Principal Judge, Family Court-cum-

Additional Chief Judge, City Civil Court at Hyderabad, whereby,

the petition filed by the revision petitioner/father under Order

XXXIX Rules 1 and 2 of CPC, seeking ad-interim injunction

restraining the respondents/mother and grandfather, their

agents, person or persons claiming under them from interfering

with the custody of the revision petitioner/father over the minor

child, by name, Master Muhammad Shah Ali Khan, was

dismissed.

4) W.P.No.23734 of 2022, under Article 226 of the

Constitution of India, is filed by the petitioner/mother of the

minor child, by name, Master Muhammad Shah Ali Khan, seeking

a writ of Habeas Corpus directing the official respondent Nos.1 to

5/police to produce her son Master Muhammad Shah Ali Khan,

who was allegedly illegally abducted by the respondent

No.6/father, before this Court.

5) Heard Sri Vedula Venkata Ramana, learned senior counsel

appearing for M/s.Bharadwaj Associates, learned counsel for

revision petitioners in C.R.P.Nos.707 and 717 of 2022 and

respondent No.6 in W.P.No.23734 of 2022, Sri K.Ravinder Reddy,

learned counsel for the respondents in C.R.P.Nos.707 and 717 of

2022 and petitioner in W.P.No.23734 of 2022, learned Assistant

Government Pleader for Home representing learned Advocate

General appearing for the official respondents in W.P.No.23734 of

2022 and perused the record. The parties will be hereinafter

referred to as mother and father.

6) The Court below vide common order dated 08.03.2022,

allowed I.A.No.33 of 2022 in I.A.No.4 of 2022 in O.P.No.7 of

2022 directing the father to handover the custody of the minor

child forthwith to the mother, and dismissed I.A.No.4 of 2022 in

O.P.No.7 of 2022, declining to grant ad-interim injunction in

favour of the father. The main O.P.No.7 of 2022 was filed by the

father under Sections 7, 10, 11, 12 and 25 of the Guardians and

Wards Act, seeking to declare that he is entitled for appointment

as natural guardian of the minor child and for permanent

injunction restraining the mother and grandfather of the minor

child, their agents, persons or persons claiming under them or

through them from interfering with his custody of the minor child.

7) Learned counsel for the respondents in CRP Nos.707 & 717

of 2022 and petitioner in W.P.No.23734 of 2022 (mother) would

contend that the mother was forcefully driven away from her

matrimonial home in July, 2021, along with the child. Therefore,

she took shelter in the house of her parents, situated at

Muradnagar, Hyderabad. The father filed the subject O.P. on

04.01.2022 and obtained ex parte ad-interim injunction

restraining the mother from interfering with the custody of the

child. On 05.01.2022, the child was forcefully removed from the

custody of his mother. There is ample evidence to substantiate

the same. All the allegations levelled by the father in I.A.No.4 of

2022 are ex-facie false. The custody of the child was with the

mother. The mother is the right person to have the custody of

the child. The Court below after examining the contentions of

both sides, rightly dismissed the application filed by the father

directed him to handover the minor child forthwith to the mother

and ultimately prayed to dismiss the revision petitions and allow

the Writ Petition as prayed for. In support of his contentions,

learned counsel had placed reliance over the decision of the

Hon'ble Apex Court in Tejaswini Gaud and others v. Shekhar

Jagdish Prasad Tewari and others1

8) On the other hand, the learned Senior Counsel appearing

on behalf of the petitioners in the revision petitions (father) and

the respondent No.6 (father) in the writ petition, would contend

(2019)7 SCC 42

that in May, 2020, the mother developed psychological problems

and her behaviour has shown disorders. She was admitted in

Asha Hospital on 10.05.2020 for treatment. Her behavior was

abnormal. The minor child is in the custody of his father right

from the day of his birth. Though the mother left the custody of

the child on 24.06.2021 with the father, she is again causing

interference with the custody of the child. Therefore, a restraint

order dated 04.01.2022 was passed in I.A.No.4 of 2022. The

interest of the child would be best protected in the hands of the

father, who is capable of looking after all the needs of the child.

Since the mother is suffering from psychological disorders, it is

not safe to grant custody of the minor child to her, which may

have adverse impact on the development of the child. Further,

there is no misrepresentation of facts by the father before the

Court below. The Court below passed the impugned common

order without taking into consideration the interest and welfare of

the child and ultimately, prayed to set aside the impugned

common order dated 08.03.2022. In support of his contentions,

the learned senior counsel placed reliance on the decision of the

Hon'ble Apex Court in Soumitra Kumar Nahar v. Parul Nahar2.

(2020)7 SCC 599

9) In view of the above rival contentions, the point that arises

for determination in these petitions is:

"Whether the father of the child is entitled for the relief as prayed for in I.A.No.4 of 2022?"

10) POINT: The dispute between the parties to the litigation is

with regard to interim custody of the minor child, by name,

Master Muhammad Shah Ali Khan and protection. Both the

parties are restraining each other from claiming and interfering

with the custody of the child. While the father claims that the

interest and welfare of the minor child would be best sub-served

if his custody is given to him, the mother claims that she is the

right person to have the custody of the minor child.

11) Here, it is apt to state that while determining the question

of custody of a child, the paramount consideration is the 'interest

and welfare of the child' and not the rights of the respective

parties over the child. In fact, no statute on this subject can

ignore, eschew or obliterate the vital factor of the welfare of the

minor. In Soumitra Kumar Nahar's case (2 supra) relied by the

learned senior counsel, the Hon'ble Apex Court, in paragraph

No.32, held as follows:

"Para 32: 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 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."

Keeping the above well settled principles in mind, if we look at

the facts of the case on hand, it is not the case of the father that

the mother and her parents are financially incapable to look after

the minor child. To substantiate that the child is with the father

as on the date of filing of subject O.P., Ex.P6-photographs are

filed. Though the photographs under Ex.P6 go to show that the

minor child is with the father, but there is no date on those

photographs. On the other hand, to substantiate that the minor

child was living with the mother by the date of filing of the

subject O.P. i.e, 04.01.2022, Ex.R1-photographs are filed before

the Court below, which show that even during the month of

October, 2021, the minor child was in the custody of mother. In

CRP No.707 of 2022, photo at page No.71 shows the date as

26.11.2021, photo at page No.72 shows the date as 29.08.2021

and photo at page No.75 shows the date as 16.11.2021 and the

child is same in all the photos. So, these photographs negate the

contention of the father that the minor child was with him and the

mother is alone living separately from 24.06.2021. Furthermore,

the mother lodged complaint with the police concerned under

original Ex.R2 stating that child was forcefully taken away by

father on 05.01.2022. Ex.R3-copy of acknowledgment reveals

that Ex.R2-complaint was received by the police station

concerned on 05.01.2022. It is also the case of the mother that

the father, by showing the ex-parte ad-interim injunction order,

dated 04.01.2022, passed in I.A.No.4 of 2022 in O.P.No.7 of

2022, to the police, kept the child with him. In view of these

circumstances, the person in whose custody the minor child was,

on the date of filing of the O.P. i.e., on 04.01.2022, needs to be

answered. The other documents filed on behalf of the father do

not reflect that the child was in his custody by the date of filing of

the O.P. The child is of a tender age, i.e., three years. The

mother is physically present before this Court today and also

yesterday. She appears to be mentally fit. Both of us does not

even entertain a doubt that she is suffering from psychological

problems, as alleged by the father, further, it is not the case of

the father that the mother is suffering from any psychological

disorder at present. Ex.R.1-photographs, Ex.R.2-copy of

complaint and Ex.R.3-copy of acknowledgment substantiates the

case of the mother that the father has taken the custody of the

child on 05.01.2022 after obtaining ex parte ad interim injunction

order dated 04.01.2022. No prima facie case has been

established by the father to grant the relief, as sought for. In the

given facts and circumstances of the case, the Court below rightly

held that the balance of convenience is not in favour of the father

and that he failed to prove any irreparable loss which could be

caused to the minor child if the minor child continues to be in the

custody of mother. Further, in view of the facts and

circumstances of the case, this Court concurs with the finding of

the Court below that the father did not approach the Court with

clean hands. There are no special or exceptional circumstances

to allow the revision petitions. Though there is no hard and fast

rule as to with which parent the custody of minor child should be

entrusted, however, as to the children of tender years, it is now a

firmly established practice that mother should have their custody,

since father cannot provide the maternal affection, which is

essential for the proper growth of minor child. It is also now

established that for proper psychological development of children

of tender years, mother's affection is indispensable. It is said

that mother's lap is God's own cradle for a child of tender years,

and that as between father and mother, other things being equal,

a child of such tender age should remain with mother.

12) We have gone through the decision of the Hon'ble Apex

Court in Tejaswini Gaud's case (1 supra). The mother of the

child therein died due to illness and the father of the child therein

was the only surviving parent and hence, the custody of child was

handed over to the father. The facts of the cited decision are

distinct from the facts of the case on hand and hence, the said

decision is not applicable to the facts of the case on hand.

13) For the foregoing reasons, we do not see any merit in both

the Civil Revision Petitions. Accordingly, both the Civil Revision

Petitions are dismissed.

14) As the subject dispute is required to be dealt with by the

Court below in the subject O.P filed under Sections 7, 10, 11, 12

and 25 of the Guardians and Wards Act, no further orders are

required to be passed in the writ petition. Accordingly, all further

proceedings in W.P.No.23734 of 2022 are closed. The Court

below shall not get influenced by any of the observations/

findings reached in this order and dispose of the subject O.P on

its merits, in accordance with law.

As a sequel, miscellaneous petitions, if any, pending in

these petitions, shall stand closed. There shall be no order as to

costs.

______________________ Dr. SHAMEEM AKTHER, J

_____________________ JUVVADI SRIDEVI, J 23rd June, 2022 SSP/BVV