Khusro Vilayatullah Khan vs Syed Mustafa Abdul Khader
2024 Latest Caselaw 2553 Tel

Telangana High Court

Khusro Vilayatullah Khan vs Syed Mustafa Abdul Khader on 8 July, 2024

Author: P.Sam Koshy

Bench: P.Sam Koshy

             THE HON'BLE SRI JUSTICE P.SAM KOSHY
                                    AND
       THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU

         FAMILY COURT APPEAL Nos.157 and 158 of 2024

COMMON JUDGMENT:

(per the Hon'ble Sri Justice P.SAM KOSHY)

Heard Mr. Ali Farooque, learned counsel for the appellants and

Mr. Syed Ahmed Ali, learned counsel for the respondent.

2. These are two Family Court Appeals filed by the appellants herein

against the order dated 24.05.2024 passed in two O.P.s on the file of

the Judge, Principal Family Court-cum-XIII Addl. Metropolitan Sessions

Judge, Hyderabad (for short the 'Family Court') between the same

parties i.e. the appellants and the respondent in O.P.No.1433 of 2021

and O.P.No.1865 of 2021.

3. O.P.No.1433 of 2021 was filed by the respondent seeking for

custody of his two minor children namely Syeda Khatija Nausheen,

born on 09.11.2019 and Syed Mujtaba Abdul Nasir, born on

07.12.2020. Likewise, O.P.No.1865 of 2021 is one which has been filed

by the appellants herein seeking to appoint them as a permanent

guardian and custodians of the two minor children namelySyeda

Khatija Nausheen and Syed Mujtaba Abdul Nasir. O.P.No.1433 of 2021

stood allowed granting custody of the afore mentioned minor children to

the respondent who is the biological father of the two children, and at

the same time, the Family Court has granted the appellants herein the

visitation rights of the minor children on every Sunday between 9:00

AM to 6:00 PM and fifteen days time during the summer vacation every

year till the two minor children attain the age of majority. Whereas,

O.P.No.1865 of 2021 was dismissed with the aforementioned visitation

rights that were conferred on the appellants.

4. It is these two judgments which have been challenged by the

appellants in the instant two appeals.

5. The facts of the case, in brief, are that the appellants in the

instant two appeals are father-in-law and mother-in-law of the

respondent and they are also the maternal grandparents of the two

minor children whose custody they are seeking. The respondent is the

biological father of the two minor children, the custody of whom has

been given to him. The daughter of the appellants late Muniza Hasan

Khan was married to the respondent on 20.04.2018 and two children

were born from the said wedlock. One Syeda Khatija Nausheen was

born on 09.11.2019, and thereafter, a male child Syed Mujtaba Abdul

Nasir was born on 07.12.2020. However, unfortunately, the mother of

the two children i.e. the wife of the respondent and daughter of the

present appellants died on 06.06.2021 because of a disease known as

(Lymphangioleiomyomatosis) (LAM) (lungs infection). When the mother

died, the second child was approximately 6 months old and the elder

daughter was approximately 1½ years of age. At that point of time, it

was the appellants who took custody of these two children and it is they

who are bringing up the children with care and protection. However, the

respondent i.e. the son-in-law of the two appellants herein filed O.P.

under Section 7, 10 and 25 of the Guardian and Wards Act, 1890

seeking for custody of the afore mentioned two minor children. It is this

petition which stands allowed by the Family Court with the visitation

rights granted in favour of the appellants herein on every Sunday

between 9:00 AM to 6:00 PM and with fifteen days of custody during

the summer vacation every year till the children attain the age of

majority.

6. When the respondent had filed a petition seeking for custody, the

appellants who are grandparents of the minor children filed another

petition under the same provisions of the Guardians and Wards Act

they in turn claiming the guardianship and custody of the minor

children. It is this petition which has got rejected except for visitation

rights mentioned above.

7. Learned counsel for the appellants referring to Section 352 of the

Mahomedan Law which deals with the right of the mother of infant

children and also Section 353 which governing the principles of child

custody, particularly in the context of female relationship in default of

mother, the maternal grandparents have the legal right to have custody

of the two minor children and which the Family Court has not properly

appreciated. Therefore, the appeals warrant interference with the

impugned orders.

8. In this connection, the learned counsel for the appellants referred

to a Division Bench's decision of the Kerala High Court in the case of

Poolakkal Ayisakutty vs. Parat Abdul Samad 1 and contended that in

terms of the aforesaid legal position so far as Section 353 is concerned,

in the absence of mother being available as per the personal law of

Muslims the children have to be in custody of the mother's mother and

only thereafter would the right be available to the father's mother and

father is not included in Section 353.

9. It was also the contention of the learned counsel for the

appellants that even otherwise since the two children were from very

young age been in the custody of the appellants, there is a great

1 2005 AIR (Kerala) 68

element of bondage that has developed between the minor children and

the appellants and at this juncture any detachment to that bondage

can have long term ramifications so far as the mental framework of the

children is concerned. Therefore, taking into consideration the interest

of the children which has to be given paramount weightage, at this

juncture, it is not advisable for granting the custody of the children to

the respondent and the impugned orders to the aforesaid extent needs

to be interfered with.

10. It was further contended that it may not be advisable at this

juncture to grant custodial rights to the respondent for the reason that

subsequently the respondent has got remarried and it is not certain

whether the present wife of the respondent would take proper care of

the children and the respondent has not led any evidence of his second

wife stating that she is willing to accept the custody for upbringing of

the two children. In the absence of which also the Family Court should

not have granted the custodial rights of the two minor children to the

respondent.

11. Lastly, it was contended by the learned counsel for the appellants

that the respondent does not have sufficient means to take care of the

two children and as the welfare of the children being of paramount

consideration, the children must be left in the custody of the appellants

herein. It was also alleged that right from the time of death of the wife of

respondent and the mother of the two minor children, the respondent

has not spent a penny for their upbringing. Neither has he granted any

amount towards maintenance of the two children. As such, the

respondent does not have any moral or legal right to claim the custody.

It was further contended that the respondent did not take care of his

wife well and there was ill-treatment of his wife and cruelty met towards

her and he had also not paid any money towards treatment of his wife

and the entire expenses of treatment were born by the appellants which

also would reflect that he does not have any sufficient means at the first

instance and that he also does not carry any love and affection towards

his wife or children. On this basis also, the claim of the respondent

seeking custody should had been rejected and the claim of the

appellant seeking for custodial rights ought to have been granted.

12. Per contra, the learned counsel for the respondent denied all the

averments and contentions raised by the appellants and stated that the

impugned orders does not warrant any interference as they are well-

reasoned orders taking into consideration the entire factual matrix

those were brought before the Family Court and which has been

appreciated and discussed in great detail by the Family Court while

passing the impugned orders. It was the contention of the learned

counsel for the respondent that all the averments which the learned

counsel for the appellants have tried to raise in these appeals and

which he has contended in the arguments have been threadbare

discussed by the Family Court while deciding the O.P's. Therefore, the

appeals being devoid of merits deserve to be rejected.

13. Learned counsel for the respondent contended that the

respondent at that relevant point of time was working with the company

Amazon and he had the medical insurance coverage of his wife and as

such the entire expenses for both the deliveries and also for subsequent

treatment of his wife were all through the said insurance coverage. He

further contended that the Family Court in very categorical terms found

that the appellants not being able to prove the allegation and

contention of they having met the medical expenses and the respondent

having not paid any attention to the medical expenses and the medical

needs of his wife. In the absence of any documentary proof led by the

appellants, the oral contentions and averments cannot be accepted.

14. Further, it was contended by the learned counsel for the

respondent that as regards the maintenance of their children there was

a specific evidence given by him in the Family Court which has gone

unrebbuted and not countered with by the appellants. According to

him, initially on a couple of occasions he had tried to give maintenance

part to the appellants, but the appellants deliberately refused to accept

the same and also thrown away the maintenance amount that the

respondent had offered for upbringing and up keeping of the children. It

was also contended that, in fact, the respondent had remarried only

with an intention of his second wife being able to take care of the two

minor children born from his first wife and that she is ever willing to

take of the two minor children treating to be their own children and

only because the respondent has entered into second marriage by itself

cannot be a disqualification from having the custody of his children

born from his first wife since she expired due to illness.

15. It was also the contention that subsequently the respondent has

resigned from the services of Amazon and now carrying on his business

and that he has sufficient income generated from the said business

which would enable him to take care of his two minor children. It was

further contended since the respondent is the biological father of the

two minor children coupled with the fact that he has means available

for their upbringing and upkeeping, there is no occasion why the

respondent, the father of the minor children, not being entitled the

custody of the minor children.

16. Thus, for all the aforesaid reasons, the learned counsel for the

respondent contended that the two appeals may be rejected.

17. Having heard the contentions put forth on either side and on

perusal of records, it would be relevant to take note of the decision of

the High Court of Andhra Pradesh in the case of Saiful Islam Habeeb

Ali v. Asma Begum 2 wherein in paragraph Nos.10 to 12 it was held as

under:

"10. For the purpose of child custody, it is well settled that the paramount consideration, for using the discretion of the Court for grant of custody, is the welfare of the child and well-being of the child. Though the appellant is claiming custody mainly relying on the provision under Section 352 of the Mahomedan Law on the ground that as the respondent-mother of the minor child has married again, as such, the appellant being the father is entitled to the custody. Section 352 of the Mahomedan Law reads as under:

"352. Right of mother to custody of infant children:- The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father."

2 2013(6) ALT 641

11. From a reading of the above provision, it is clear that mother is entitled to the custody of her male child until he completes the age of seven years and of her female child until she attains puberty, and such right will continue though she divorced by the father of the child unless she marries second husband, in which case custody belongs to the father.

12. From the reading of the aforesaid provision, it is clear to us that the mother is having absolute custody with regard to female child until she attains puberty and such right will continue beyond such period only in the event of not contacting second marriage by the respondent-mother. But, only on the ground that the respondent has married second husband, without mentioning the age of the girl child, the appellant cannot claim for custody. In the case of Mohammed Jameel Ahmed Ansari Vs. Ishrath Sajeeda and others (1 supra), the Division Bench of this Court has held that the children are normally expected to be in the custody of legal guardians. Under Muslim law, after the age of 7 years, it is the father who is entitled to the custody of the child, unless the Court holds on evidence, the father is not a fit person or that is not conducive to the health whether physical or mental of the child. Ordinarily, the children are to be with the father. In the case of Mir Mohamed Bahauddin Vs. Mujee Bunnisa Begum (2 supra), a Single Judge of the Madras High Court has held that by reason of contact of second marriage by the mother, she cannot be the natural guardian when the father of the child is alive."

18. So also it is necessary to take note of the relevant portion of

judgment which in fact has already been relied upon by the learned

counsel for the appellants i.e. Division Bench judgment of the Kerala

High Court in the case of Poolakkal Ayisakutty (supra) wherein in

paragraph Nos.4 and 5 the Division Bench of Kerala High Court has

held as under:

"4. We are of the view when the question of the custody of the child is involved, the primary consideration which weighs with the court is the welfare of the child. Legal position is well settled by a catena of decisions of this court as well as that of the Apex court. Reference may be made to the decision of the Apex court in Jai Prakash Khadria v. Shyam Sunder Agarwalla, 2000(3) RCR (Civil) 143 (SC) : (2000 (6) SCC 598) and R.V. Srinath Prasad v. Nandamuri Jayakrishna, 2001(2) RCR (Civil) 709 (SC) : (2001(4) SCC 71). It is settled principle of law that custody orders, by their very nature, can never be final but a challenge should only be made if it is in the paramount interest of the child concerned. Custody of a minor is also a matter involving sentimental attachment. Such a matter is to be approached and rackled carefully. A balance has to be struck between the attachment and sentiments of the parties towards the minor children and the welfare of the minors which is of paramount importance. Principles exported by Personal Law and the provisions referred to herein before cannot read in isolation and the divorced under the provisions of the Guardian and Wards Act. Several decisions were cited at the bar for and against. See : Rafiq v. Smt Bashiran (AIR 1963 Rajasthan

239), Salamat Ali v. Smt Majjo Begum (AIR 1985 Allahabad

29), Alias Bibijan v. Mohammad Ghouse Mohideen (AIR 1952 Madras 284), Baby Sarojam v. S. Vijaykrishnan Nair (AIR 1992 Kerala 277), Yusuf v. Sakeena (1998 (2) KLT

573), Merlin Thomas v. C.S. Thomas, 2003(3) RCR (Civil)

304 (Kerala) : (2003(1)KLJ 633) and Chakki v. Ayyappan (1998(1) KLT 556).

5. The court would always respect the sentiments of the grandmother. Child's mother has committed suicide. Father later remarried and has got children. Conduct of remarriage by the father of the child itself is not a ground to reject the prayer for custody. Welfare of the child is of paramount consideration. By giving due respect to the sentiments expressed by the grandmother, we are of the view, it is for the welfare of the child that the child be with the father."

19. In the light of the afore given factual matrix and the judicial

precedents referred above, if we look into the pleadings, what is

apparently undisputed is the fact that the respondent in both the

appeals is the natural father of the two minor children whose custody

and guardianship the appellants are seeking. Being the natural

biological father undisputedly the respondent is the natural guardian

also.

20. Another fact which needs an appreciation is that, till the time, the

mother of the minors i.e. the wife of the respondent was alive, the

relationship between the respondent and his wife was very cordial and

that there was no dispute whatsoever. It is also not a case where the

wife of the respondent i.e. the daughter of the appellants and also the

mother of the two minors had died because of certain lungs ailment and

the period of death also was during the peak COVID period i.e. on

06.06.2021. Neither are the appellants in a position to say that the

death of their daughter i.e. wife of the respondent was in any manner

under suspicious circumstances. Further, from the pleadings that have

come on record and the materials placed before us, we do not find

anything strong enough adduced by the appellants which could force

us to conclude that the respondent does not have the custody and

capability of taking up the responsibility of upbringing and up keeping

of the children.

21. We quite appreciate the attachment that the appellants have as

the maternal grandparents of the two minors are concerned, but at the

same time we cannot brush aside the hard reality that the respondent

is the natural guardian after demise of the mother of the minor children

in the custody of being their father. Appreciating the attachment that

the appellants have shown towards the children, the Family Court has

already granted the visitation rights every Sunday between 9:00 AM to

6:00 PM and fifteen days during summer vacations every year till the

children attain the age of majority.

22. Another reason why we are not impressed with the submissions

made by the learned counsel for the appellants seeking for

guardianship and custody is the fact that the appellants themselves

while the children were in their custody had filed a petition before the

Family Court seeking for a direction from the Court whereby the

respondent may be directed for granting of maintenance for upbringing

and up keeping of the children. In the said petition for maintenance it

was alleged that they do not have sufficient means for sustenance of the

children. If that be so, with no evidence and cogent proof of the

respondent not having sufficient means it has to be presumed

otherwise that he has sufficient means and capability and would be in a

position to maintain the two children well. On this ground also, we do

not find any force in the appeals filed by the appellants.

23. However, as regards the visitation rights that has been given by

the Family Court towards the appellants, we are of the considered

opinion that the said visitation rights can still be increased inasmuch

as the minor children can be sent to the appellants on Saturday and

Sunday both during the same period as has been given by the Family

Court. In addition to this, the children shall also be sent to the

appellants' house during all public holidays during the same period and

also for fifteen days during summer vacation every year as has been

granted by the Family Court. With the aforesaid modification to the

visitation rights of the appellants, we do not otherwise find any strong

case made out calling for an interference on the merits of the order

passed in the two appeals.

24. Both these appeals filed by the appellants thus stand rejected so

far as the right to guardianship and custody of the minors are

concerned. However, the visitation rights stand modified as mentioned

herein above. No costs.

25. As a sequel, miscellaneous applications pending if any, shall

stand closed.

__________________ P.SAM KOSHY, J

___________________________ SAMBASIVARAO NAIDU, J Date: 08.07.2024 GSD