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Custody to the Father.- Madras HC

Madras High Court

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 01/02/2011

CORAM : THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN

C.M.A.(MD) 170 OF 2010 AND M.P.NO.1 OF 2010

1.Dinesh alias Syed Mohamed Sheik Sikkandar
2.Jabar
3.Yasmin .. Appellants

Versus

S.Jareena Begum .. Respondent

PRAYER : Civil Miscellaneous Appeal filed under Section 47 of Guardians and Wards Act, 1890 against the judgment and decree dated 31.12.2009 passed in G.W.O.P.No.27 of 2007 by the learned First Additional District Judge, Madurai.

For Appellants … Mr.G.Prabhu Rajadurai
For Respondent … Mr.S.Rajendran

:JUDGMENT

This Civil Miscellaneous Appeal is directed against the judgment and decree dated 31.12.2009 passed in G.W.O.P.No.27 of 2007 by the learned First Additional District Judge, Madurai.

2.The brief facts leading to the filing of this appeal are as follows:

(a) The first appellant, who is the son of the second and third appellants, registered his marriage with the daughter of the respondent namely Sainammal on 08.07.2004 at the Registrar Office, Madurai, without the knowledge and consent of both the parents. That is, the second and third appellants as well as the respondent were not informed about the registered marriage between the first appellant and Sainammal. After marriage, the couple lived for sometime at Chennai.

(b) Thereafter, both the parents arranged for the customary wedding as per their religious rites and customs. The arranged marriage between the first appellant and Sainammal held on 21.02.2005 at K.S.K.R. Marriage Hall at Sellur as per the the Customs of Muslims and was registered in Narayanapuram Area Muslim Jamath. Out of their wedlock, a female child was born on 10.11.2005 and the name of the child was Mariyam Parija.

(c) While so, the daughter of the respondent, that is, the wife of the first appellant viz., Sainammal committed suicide on the midnight of 28.07.2007.

(d) Based on the complaint given by the respondent, a criminal case was registered against the appellants in Crime No.323/2007 under Section 304(B) IPC on the file of the Oomatchikulam Police Station, Madurai. The third appellant, the mother of the first appellant obtained anticipatory bail, however, the first and second appellants were arrested and later, were enlarged on bail. The minor child viz., Mariyam Parija was under the custody of the appellants.

(e) In the meantime, the respondent filed a petition in

G.W.O.P.No.27/2007 under Sections 7(1)(b), 8 and 25 of Guardians and Wards Act, 1890 before the learned First Additional District Judge, Madurai, seeking to appoint her as legal guardian of the minor child viz., Mariyam Parija and for a consequential direction to hand over the minor child to her.

(f) In the said petition in G.W.O.P.No.27/2007, the respondent herein has averred that her husband was working as Superintendent in Education Department of Government of Tamil Nadu and she has three daughters. The second daughter viz., Sainammal got married with the first appellant herein at the Registrar Office at Madurai on 08.07.2004. Initially, the second and third appellants did not accept the registered marriage and drove out the couple from their house. Thereafter, the second and third appellants demanded 50 sovereigns gold jewels and Rs.50,000/- as dowry to accept the marriage. The respondent agreed to give 35 sovereigns gold jewels and Rs.50,000/- as dowry. In the said circumstances, the marriage between the first appellant and Sainammal was held on 21.02.2005 at K.S.K.R. Marriage Hall at Sellur as per the the Customs of Muslims and was registered in Narayanapuram Area Muslim Jamath. At the time of marriage, her daughter viz., Sainammal was not aware that the first appellant had no job and was roaming here and there. It was also alleged that the appellants snatched all the jewels from her daughter and started harassment and compelled her to get more money as dowry from the respondent. It was also alleged that the daughter of the respondent came to her house with tears and told the cruelty meted out to her at the hands of the appellants and in those circumstances, the respondent also gave another seven sovereigns of gold and cash of about Rs.10,000/- on several occasions. While so, her daughter gave birth to a female child on 10.11.2005 and all delivery expenses were borne by the respondent. The respondent also gave three sovereigns of gold to the minor child at the 48th day of birth ceremony. Even then, the appellants tortured her daughter and demanded dowry often. In June 2007, the daughter of the respondent viz., Sainammal came to the house of the respondent and told her that the appellants demanded Rs.2,00,000/- to send the first appellant i.e. her husband to abroad for job and that she was beaten up atrociously as she refused to demand money from the respondent. The respondent took her daughter along with her husband and three of her relatives to the house of the appellants and left her daughter at the appellants’ house and advised them not to harass her daughter and to demand dowry. Again on 25.07.2007, the appellants drove out the daughter of the respondent along with the minor child and warned her that if she came back without Rs.2,00,000/- she would be facing dire consequences. On the same day, the respondent took her daughter along with her husband and other relatives to the house of the appellants and left her daughter and also told them that she would complain to the Jamath and other appropriate authorities, if they continued to demand dowry and that she could not give such a huge amount. While so, she received a phone call at about 05.00 a.m. on 29.07.2007 that her daughter committed suicide by hanging at about 00.00 hours on 29.07.2007 and the body was kept at Government Rajaji Hospital, Madurai. According to the respondent, her daughter committed suicide due to cruelty and the harassment by the appellants. A case was also registered in Crime No.323/2007 under Section 304(B) IPC on the file of the Oomatchikulam Police Station, Madurai. Hence, the respondent sought her to be appointed as legal Guardian and for a consequential direction to hand over the minor child to her.

(g) The appellants herein filed counter statement refuting the allegations made by the respondent. It is pleaded that the marriage between the daughter of the respondent and the first appellant was out of love affair. The appellants 2 and 3 accepted the marriage of their son with the daughter of the respondent. The appellants strenuously denied the allegation that they demanded dowry. The appellants also pleaded that they neither demanded nor received any dowry. It is also pleaded that the respondent did not accept the marriage of her daughter with the first appellant. The appellants averred that the first and second appellants are doing fibre mill business and the second appellant is a Partner in a Fertilizer Firm and the daughter of the respondent was aware of the business and the appellants never harassed the said Sainammal. Except the fact that the daughter of the respondent gave birth to a female child on 10.11.2005, all other allegations were denied by the appellants herein. It is stated that when the respondent lodged a complaint in the Oomatchikulam Police Station, Madurai on the death of her daughter, the appellants 1 and 2 were arrested and later enlarged on bail, while the third appellant obtained anticipatory bail. It is also stated that the appellants have nourished the minor child with all due care and affection. They made allegations against the husband of the respondent that he was of bad character and sought for dismissal of the petition. (h) Before the Trial Court, the respondent got examined herself as P.W.1 and four documents were marked as Exs.P.1 to P.4. Ex.P.1 is the marriage registration certificate; Ex.P.2 is the marriage certificate issued by the Narayanapuram Muslim Jamath; Ex.P.3 is the birth certificate of the minor child and Ex.P.4 is the copy of the First Information Report.

(i) On the side of the appellants herein, four witnesses were examined as R.W.1 to R.W.4 and seven documents were marked as Exs.R.1 to R.7. Exs.R.1 to R.3 are the photos; Ex.R.4 is the prescription issued by Abhiram Children’s Hospital to the minor child; Ex.R.5 is the School Fees receipt of the minor child; Ex.R.6 is the Dhana Settlement deed executed by the second appellant in favour of the minor child and Ex.R.7 is the Partnership deed showing the first appellant as a Partner in Fibre business.

(j) After hearing both sides, the Trial Court allowed the G.W.O.P.No.27/2007 on 31.12.2009. The Trial Court held that the appellants’ family constantly harassed the deceased Sainammal about her marriage with the first appellant and the deceased Sainammal was put in continuous torture by the family members of the first appellant. The Trial Court also noted that a criminal case was registered in Crime No.323/2007 under Section 304(B) IPC on the file of the Oomatchikulam Police Station, Madurai on 29.07.2007 and the appellants 1 and 2 were arrested and later enlarged on bail. Further, the first appellant was without any job and the appellants failed to prove that the first appellant is doing any job. The Trial Court also found that Exs.R.6 to R.7 were created for the purpose of the case as those documents were not registered. Based on these reasons, the Trial Court recorded a finding that the first appellant is unfavourable and the respondent is in a favourable position to have the custody of the child.

(k) Assailing the correctness of the aforesaid judgment, this Civil Miscellaneous Appeal is filed by the appellants under Section 47 of the Guardians and Wards Act, 1890.

3.Heard the submissions made by the learned counsel for the appellants and the learned counsel for the respondent.

4.The learned counsel for the appellants submitted that the Trial Court committed grave error in recording a finding that the appellants’ family constantly harassed the daughter of the respondent regarding the registered marriage held between the first appellant and the daughter of the respondent. The learned counsel for the appellants has taken me through the evidence of the respondent and also the evidence tendered by the appellants and the other materials available on record in support of his submission. The learned counsel contended that the findings recorded by the Trial Court that there was constant harassment and torture by the family members of the appellants has no basis at all and there is absolutely no evidence to come to such a conclusion.

5.The learned counsel for the appellants further submitted that in the matter of custody of a minor child, the paramount interest of the minor child is the guiding factor as held by the Honourable Apex Court and various High Courts and the interest of the minor child would be well protected only by the appellants and the respondent did not even see the minor child either by herself or through the relatives and that the respondent never visited the appellants home to see either her daughter or the minor child and she did not even know the address of the appellants. In this regard, the learned counsel for the appellants relied on the following judgments:

(a) A Division Bench judgment of the Kerala High Court in POOLAKKAL AYISAKUTTY VS. PARAT ABDUL SAMAD reported in AIR 2005 KERALA 68 (b) A judgment of the Honourable Apex Court in ANJALI KAPOOR VS. RAJIV BAIJAL reported in 2009 (7) SCC 322

(c) A judgment of the Bombay High Court in IRFAN AHMED SHAIKH VS. MUMTAZ AND ANOTHER reported in AIR 1999 BOMBAY 25

(d) A judgment of the Honourable Apex Court in SURINDER KAUR SANDHU VS. HARBAX SINGH SANDHU AND ANOTHER reported in 1984 (3) SCC 698.

6.The learned counsel for the appellants also submitted that there is no evidence to disclose the fact that the respondent gave dowry to the appellants and there was no evidence for demand and acceptance of dowry and there was no material to show that the appellants caused cruelty and demanded dowry from the respondent’s daughter. The learned counsel also submitted that a criminal case was pending against the appellants and that mere pendency of a criminal case could not be put against the appellants, more particularly, the first appellant, being the father and natural guardian of the minor child. In this regard, the learned counsel for the appellants relied on the following judgments:

(a) A Division Bench judgment of this Court in O.ULAGANATHAN VS. K.R.G. CHANDRASEKAR AND OTHERS reported in 1993 (II) MLJ 201

(b) A judgment of the Honourable Apex Court in KIRTIKUMAR MAHESHANKAR JOSHI VS. PRADIPKUMAR KARUNASHANKER JOSHI reported in 1992 (3) SCC 573

7.The learned counsel for the appellants contended that the Trial Court failed to consider the fact that the minor child has been living with the appellants right from the birth until this date and that the child is put in a school as revealed from Ex.R.5 and the child is given proper care by taken to hospitals whenever necessary as per Ex.R.4. It was also argued that the Trial Court was not correct in rejecting Exs.R.6 and R.7 on the ground that those documents were not registered. It was contended that even if those documents were not registered, the Trial Court should have found that the first appellant was doing business and was earning money and that the family had sufficient income to take care of the minor child in view of the oral evidence besides the documentary evidence, particularly the oral evidence of the first and second appellants and R.W.4, an independent witness. The learned counsel for the appellants also submitted that when allegations were made, the respondent did not take care even to examine her husband and other relatives referred to in her application to prove the charge of alleged harassment and cruelty.

8.On the other hand, the learned counsel for the respondent submitted that the first appellant was responsible for the death of the daughter of the respondent viz., Sainammal and a case was registered in Crime No.323/2007 under Section 304(B) IPC on the file of the Oomatchikulam Police Station, Madurai on 29.07.2007 and that therefore, the first appellant and his family members are not entitled to the custody of the minor child. The learned counsel also strenuously contended that in view of the pendency of the criminal case against the first appellant relating to the death of the daughter of the respondent, the appellants are not entitled to the custody of the minor child. In this regard, the learned counsel relied on the following judgments:

(a) A judgment of the Patna High Court in BIMLA DEVI VS. SUBHAS CHANDRA YADAV NIRALA reported in AIR 1992 PATNA 76

(b) A judgment of the Honourable Apex Court in NIL RATAN KUNDU AND ANOTHER VS. ABHIJIT KUNDU reported in VI (2008) SLT 785

(c) A Division Bench judgment of the Uttarakhand High Court in YOGESH KUMAR GUPTA VS. M.K.AGARWAL reported in AIR 2009 UTTARAKHAND 30

9.The learned counsel for the respondent further contended that Personal Law is also a relevant factor in deciding the custody and as per Section 102(1)(a) of Mohammedan Law, the respondent is entitled to the custody of the minor female child until she attains puberty. Hence, the respondent is entitled to the custody of the minor child. In this regard, he relied on the following judgment:

(a) A judgment of the Madhya Pradesh High Court in WAZID ALI VS. REHANA ANJUM reported in AIR 2005 MADHYA PRADESH 141

10.It was also contended by the learned counsel for the respondent that the first appellant was without employment and he did not do any business as correctly held by the Trial Court and the documents Exs.R.6 and R.7 were created for the purpose of the case. At the same time, the husband of the respondent is a Government employee and therefore, the respondent and her family would better take care of the interest of the minor child. The learned counsel argued that Ex.R.6 – Dhana Settlement deed appointing the mother of the minor child as Guardian is invalid as per the Muslim Personal Law and he relied on the commentaries on Mohammedan Law of Shri B.R.Verma in this regard.

11.I have considered the submissions made on either side and perused the materials available on record.

12.The issue that arises for consideration in this appeal is as to

“whether the Trial Court was correct in appointing the respondent as Guardian to the minor child viz., Mariyam Parija born to her daughter on 10.11.2005 through the first appellant and handing over the custody of the minor child from the appellants to the respondent?”

That is, it has to be decided as to whether the appellants are entitled to the custody of the minor child or the respondent.

13.It is not in dispute that the marriage between the daughter of the respondent and the first appellant was registered on 08.07.2004 at the Registrar’s Office, Madurai, without the knowledge and consent of both the families. That is, it was a love marriage. But the respondent alleged that later when the marriage was performed on 21.02.2005 at K.S.K.R. Marriage Hall at Sellur as per the Customs of Muslim and was registered in Narayanapuram Area Muslim Jamath, the appellants demanded dowry of 50 sovereigns of gold jewels and Rs.50,000/- cash. There is absolutely no evidence to show that the family members of the appellants demanded dowry except the allegations made in the petition and the same being repeated in the evidence of the respondent. Further, while the respondent alleged that the appellants continuously demanded dowry after marriage on so many occasions and harassed and treated her daughter cruelly and also drove her out, there is no evidence in support of those allegations. In fact, in both the petition as well as in the evidence, not even the date, time and other particulars are given about the demand of dowry, harassment and torture. It is an admitted fact that no complaint was made to the Police regarding the alleged harassment and cruelty meted out to the daughter of the respondent. It is also an admitted fact that the matter was not taken to some Panchayat. The respondent alleged that her husband and her three relatives viz., brothers of her husband, took her daughter to the house of the appellants whenever she was driven out of her house. But the respondent did not even choose to examine her husband as well as the relatives mentioned in the application in support of her claim. No reason was given for not examining the witnesses, particularly when allegations were made by the respondent against the appellants. It is also necessary and relevant to examine the husband of the respondent to depose before the Court that he was willing to support the minor and that the respondent’s action was fully supported by him. In spite of there being no evidence at all, except the criminal case filed in Crime No.323/2007 under Section 304(B) IPC on the file of the Oomatchikulam Police Station, Madurai, on the death of the daughter of the respondent, by committing suicide by hanging, the Trial Court recorded a finding that the family members of the appellants harassed the daughter of the respondent. The findings of the Trial Court is extracted hereunder:

“….. So, it is also seen that the respondent’s family constantly harassed Sainammal about the marriage between the 1st respondent and Sainammal. The respondent stated as only because the petitioner not maintaining the parents daughter relationship with Sainammal and only because of that she committed suicide. But it is seen that because of the marriage, Sainammal was put in continuous torture by his family members…..”

14.In my considered view, the aforesaid findings are not supported by any evidence at all. In fact, the Trial Court did not rely on any piece of evidence in support of such a conclusion, except merely recording its ipse dixit. Therefore, I am of the view that there is no evidence to show that the daughter of the respondent was harassed and put to cruelty by the first appellant and his family members. However, the issue as to the custody of minor child does not rest there. It is a different matter if there is an evidence that the first appellant and his family members harassed and cruelly treated the daughter of the respondent demanding dowry and that resulted in her committing suicide. As stated above, there is no evidence to come to such a conclusion. Hence, the issue as to custody of the minor child has to be decided by looking into other relevant factors.

15.The Trial Court entrusted custody of the minor child on the other ground that the appellants are facing criminal case in Crime No.323/2007 and the appellants 1 and 2 were arrested and enlarged on bail and the criminal case is still pending against them. That is, pendency of the criminal case is cited against the appellants for handing over the child to the respondent. The other reason given by the Trial Court is that the first appellant was not doing any job and that the contention of the appellants that the first appellant was doing fibre business was disbelieved. Ex.R.7, a partnership deed to prove the fibre business of the first appellant was disbelieved by the Trial Court. It has to be seen whether the Trial Court is justified in appointing the respondent as Guardian to hand over the child based on the above said reasons.

16.The learned counsel for the respondent sought to sustain the order of the Trial Court on the ground that the pendency of the criminal case is the relevant factor while deciding the custody of the minor child.

17.The learned counsel for the appellants assailed the findings of the Trial Court and contended that the Trial Court failed to see that the guiding factor in the matter of custody of a minor child is the paramount interest of the minor child and none else. Just because a criminal case is pending investigation against the appellants, that could not be cited as a reason to deny the custody of the minor child to the appellants.

18.At this juncture, it is relevant to record my views on the production of the minor child in my chambers pursuant to the direction issued by this Court. Both the parties were present in my Chambers and the child was also present. I enquired the minor child. She completed five years of age. The child could not form an intelligent preference as contemplated under Section 17(3) of the Guardians and Wards Act, 1890 as it was only five years old. The child was put in a School and was in good health. However, I found that the child was not even able to recognise the respondent as her grandmother. The respondent also admitted that she did not see the child after the death of her daughter. When her daughter died on 29.07.2007, the child was about 1 . years old. Even at that time, the child was growing in the family of the appellants. According to the child, the respondent was a stranger. The child was very comfortable with her father’s family i.e. the first appellant and other appellants. It is also pertinent to note that the Trial Court did not choose to enquire into these aspects by directing the appellants to produce the child during the trial. This aspect was not taken note of by the Trial Court.

19.In this regard, Section 17 of the Guardians and Wards Act, 1890 is usefully extracted hereunder:

“17.Matters to be considered by the Court in appointing guardian.- (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

(4) ***

(5) The Court shall not appoint or declare any person to be a guardian against his will.”

20.The learned counsel for the appellants specifically raised the following grounds in this appeal and contended that the respondent did not take any steps by seeking interim custody or visitation right to see the minor child.

(11) That the learned trial court ought to have appreciated the evidence of the Respondent side evidence since the Respondent admitted in the cross examination that she did not take any steps to see the minor child Mariyam Parija either by herself or through the relatives.

(12) That the learned trial court ought to have considered that the Respondent admitted in her cross examination that she did not know the address of the Appellants. It clearly shows that the Respondent never visit the Appellants’ home to see either the deceased Sainammal or the minor child Mariyam Parija.”

21.It is also relevant to note the admission made by the respondent during the cross examination, which reads as follows:

“ikdh; FHe;ijia ghh;f;fntz;Lbkd;W ehd; Kaw;rp bra;atpy;iy. ……. cwtpdh; \ykhf vd; ngj;jpia ghh;f;f eltof;if vLf;ftpy;iy/”

22.It has been held consistently in both the judgments cited by the learned counsel for the appellants as well as the respondent that the paramount interest of the minor child is the sole criteria in deciding the custody of a minor child and all other factors would give way to the interest of the child.

23.In the Division Bench judgment of the Kerala High Court in POOLAKKAL AYISAKUTTY VS. PARAT ABDUL SAMAD reported in AIR 2005 KERALA 68 relied on by the learned counsel for the appellants, the father of the child filed a petition before the Family Court seeking custody of his minor son who was in the custody of the maternal grandparents. The mother of the child had committed suicide. After her death, the child was brought up by the maternal grandparents. The Family Court allowed the application of the father. The matter was taken up by the maternal grandparents to the High Court of Kerala. The High Court of Kerala reversed the order of the Family Court and granted visitation right to the father. The reason given by the High Court was that the child was living with the maternal grandparents since the death of his mother and the transplantation at this stage would badly affect the child. Subsequently, on the death of the maternal grandfather, the father of the minor child again filed an application for custody in the changed circumstances. The Family Court, allowed the application. This time, the High Court upheld the order of the Family Court rejecting the contention of the grandmother that as per Mohammedan Law, the maternal grandmother is entitled to the custody of the minor child. The High Court held that taking into account the paramount interest of the child, as the maternal grandfather died, the Family Court was correct in giving the custody of the minor child to the father.

24.The aforesaid judgment makes it clear that the living of the child with the maternal grandparents weighed with the High Court while reversing the earlier order of the Family Court. By applying the said principles, I am also of the view that since the minor child in this appeal is living ever since her birth with the appellants, I do not want to disturb the existing arrangement, particularly after I saw that the child was not even able to identify and recognise the respondent herein as her maternal grandmother.

25.In the judgment of the Honourable Apex Court in ANJALI KAPOOR VS. RAJIV BAIJAL reported in 2009 (7) SCC 322, a female child was born on 20.05.2001 and the mother of the child died at the time of delivery. The child was taken from the Hospital by the maternal grandmother. Questioning the same, the father sought custody of the child being the natural guardian, in the Family Court. The Family Court rejected the application of the father on the ground that the father was not in a good financial position and he was taking loans from several persons including the maternal grandparents of the child. The same was reversed by the Madhya Pradesh High Court. The matter was taken to the Honourable Apex Court. The Honourable Apex Court held that the paramount consideration is the welfare of the minor child. While holding so, the Honourable Apex Court has relied on a decision of this Court in MUTHUSWAMI CHETTIAR VS. K.M. CHINNA MUTHUSWAMI MOOPANAR reported in AIR 1935 MAD 195 and held as follows:

“18. At this stage, it may be useful to refer to the decision of the Madras High Court, to which reference is made by the High Court in the case of Muthuswami Moopanar wherein the Court has observed, that, if a minor has for many years from a tender age lived with grandparents or near relatives and has been well cared for and during that time the minor’s father has shown a lack of interest in the minor, these are circumstances of very great importance, having bearing upon the question of the interest and welfare of the minor and on the bona fides of the petition by the father for their custody……”

The Honourable Apex Court also noted another English judgment in para 19 and the same is also extracted hereunder:

“19. In McGrath (infants), Re5 it was observed that: (Ch p.148)

“… The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.”

Ultimately, the Honourable Apex Court allowed the appeal and vested the custody in favour of the maternal grandmother. In para 26, the Honourable Apex Court held as follows:

“26. Ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the appellant grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custody of the child.”

The aforesaid judgment also makes it clear that if the child remained with the father and paternal grandparents for a long time and was growing up well in an atmosphere which is conducive to its growth, it is not proper at this stage for diverting the environment to which the child is used to.

26.In the judgment of the Bombay High Court in IRFAN AHMED SHAIKH VS. MUMTAZ AND ANOTHER reported in AIR 1999 BOMBAY 25, relied on by the learned counsel for the appellants, the custody of the minor child was claimed by the mother as well as the father. Both got divorce and the mother was remarried to a stranger. The father of the minor child claimed that as per Mohammedan Law, his wife incurred disqualification and that he was not married. But during the enquiry by the Court, the child refused to go with the father and wanted to live with the mother and child was also all along living with the mother. In those circumstances, the custody of the child with the mother was upheld by the Bombay High Court. In this regard, para 15 of the said judgment is extracted hereunder:

“15.It is therefore, obvious that the treatment to be given to the child is of paramount importance. We, therefore, must consider that the step father with whom the child’s mother had remarried treats the child kindly or not. In our case there is no evidence or any material or even allegation made by the petitioner that Husna is being ill-treated by the step father or is not properly looked after by him. Facts and evidence in our case are to the contrary.”

At this juncture, it is also relevant to take note of the arguments advanced by the learned counsel for the respondent that the first appellant therein got remarried and that is also cited as another circumstance for denying custody to him, has to be rejected, following the aforesaid judgment.

27.In the judgment of the Honourable Apex Court in KIRTIKUMAR MAHESHANKAR JOSHI VS. PRADIPKUMAR KARUNASHANKER JOSHI reported in 1992 (3) SCC 573, relied on by the learned counsel for the appellants, the mother died on 12.01.1991 and the cause of the death was cardio-respiratory arrest due to some chemical poisoning. Before death, she gave birth to two children viz., one male child on 20.07.1979 and one female child on 12.08.1981. The father of the children was facing criminal charge under Section 498-A IPC. The minor children lived with the brother of the deceased mother i.e. maternal uncle. The maternal uncle as well as the father of the children filed applications before the District Court claiming custody of the children. Before the matter was decided in the District Court, by various other applications, the matter reached the Honourable Apex Court. The Apex Court directed the production of the children and the Court had talked to the children. The Honourable Apex Court took into account that the children were living with the maternal uncle and came to the conclusion that though the father has a preferential right to the custody of the minor children, the children were to be put in the custody of the maternal uncle as per the wishes of the children. In para 7 of its judgment, the Honourable Apex Court held as follows:

“7. Pursuant to our order dated March 27, 1992 the children namely, Vishal and Rikta are present before us in these chamber-proceedings. Their maternal uncle Kirtikumar and their father Pradipkumar are also present. Vishal and Rikta both are intelligent children. They are more matured than their age. We talked to the children exclusively for about 20/25 minutes in the chamber. Both of them are bitter about their father and narrated various episodes showing ill-treatment of their mother at the hands of their father. They categorically stated that they are not willing to live with their father. They further stated that they are very happy with their maternal uncle Kirtikumar who is looking after them very well. We tried to persuade the children to go and live with their father for some time but they refused to do so as at present. After talking to the children, and assessing their state of mind, we are of the view that it would not be in the interest and welfare of the children to hand over their custody to their father Pradipkumar. We are conscious that the father, being a natural guardian, has a preferential right to the custody of his minor children but keeping in view the facts and circumstances of this case and the wishes of the children, who according to us are intelligent enough to understand their well-being, we are not inclined to hand over the custody of Vishal and Rikta to their father at this stage.”

This judgment also would support the contention of the appellants herein.

28.As rightly contended by the learned counsel for the appellants, the Division Bench judgment of this Court in O.ULAGANATHAN VS. K.R.G. CHANDRASEKAR AND OTHERS reported in 1993 (II) MLJ 201 makes it clear that mere pendency of a criminal case cannot be cited as a ground to deny the custody of the minor child, though the said judgment arose in a Habeas Corpus Petition. Para 14 of the said judgment refers to a judgment of this Court relating to custody and the same is extracted hereunder:

“14.In the decision S.Abboy Naidu V. R.Sundara Rajan, A.I.R. 1989 Mad.129 : (1988) 1 D.M.C. 516: (1988) 2 Hind.L.R.179, custody was sought for by the father under Sec.26 of the Guardian and Wards Act. The father was acquitted of a criminal complaint as regards suspicious death of his wife, the mother of the minor child. The father sought for custody of the minor having possessed of sufficient means and having been assisted by his parents for looking after the minor. The maternal grand parents resisted that application. But they were old and not self dependent. This Court (K.M.Natarajan, J.) held that the father cannot be denied of the custody of the minor child merely because the revision is pending against his acquittal…….”

29.In fact, in the judgment of the Honourable Apex Court in NIL RATAN KUNDU AND ANOTHER VS. ABHIJIT KUNDU reported in VI (2008) SLT 785 relied on by the learned counsel for the respondent, the respondent was the father of the minor child. His wife gave birth to a male child on 18.11.1999 and she died on 10.04.2004 and a criminal case was lodged against the respondent therein and his mother under Sections 498-A and 304 IPC. After the death of the mother, the child was under the custody of the maternal grandparents. The child was in a sick condition while the child was handed over to the maternal grandparents. But the Trial Court entrusted the custody of the child to the father. The Calcutta High Court also confirmed the same, though the child was hostile towards his father when he was produced before the Calcutta High Court. The matter reached the Honourable Apex Court. The Honourable Apex Court enquired the minor child. The minor child expressed his intention to live with his maternal grandparents. In those circumstances, the Honourable Apex Court reversed the orders of the High Court as well as the Family Court and custody was given to the maternal grandparents. In this regard, para 84 of the judgment is extracted hereunder:

“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 grandparents 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, the respondent herein.”

It is also relevant that the Honourable Apex Court found that the mother of the father viz., his paternal grandmother was an accused and absconded and the child was found sick from the house of the respondent therein. In those circumstances, the child was taken by the maternal grandparents and was living with them. In this regard, para 71 of the said judgment is extracted hereunder:

“71.Now, it has come in evidence that after the death of Mithu (mother of Antariksh) and lodging of first information report by her father against Abhijit (father of Antariksh) and his mother (paternal grandmother of Antariksh), Abhijit was arrested by the police. It was also stated by Nil Ratan Kundu (father of Mithu) that mother of accused Abhijit (paternal grandmother of Antariksh) absconded and Antariksh was found sick from the house of Abhijit.”

The Honourable Apex Court also held that the Trial Court failed to direct the parties to produce the child to ascertain the wishes of the child. In this regard, paras 73 and 74 of the said judgment are extracted hereunder:

“73.As already noted, Antariksh was aged six years when the trial court decided the matter. He was, however, not called by the court with a view to ascertain his wishes as to with whom he wanted to stay. The reason given by the trial court was that none of the parties asked for such examination by the court.

74.In our considered opinion, the court was not right. Apart from the statutory provision in the form of sub-section (3) of Section 17 of the 1890 Act, such examination also helps the court in performing onerous duty, in exercising discretionary jurisdiction and in deciding the delicate issue of custody of a tender-aged child. Moreover, the final decision rests with the court which is bound to consider all questions and to make an appropriate order keeping in view the welfare of the child. Normally, therefore, in custody cases, wishes of the minor should be ascertained by the court before deciding as to whom the custody should be given.”

Furthermore, while rendering judgment, the Honourable Apex Court took note of the judgment in KIRTIKUMAR MAHESHANKAR JOSHI VS. PRADIPKUMAR KARUNASHANKER JOSHI reported in 1992 (3) SCC 573 that was considered above. The Honourable Apex Court also laid down that the Court should give due weightage to the child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. In this regard, para 56 of the said judgment is extracted hereunder:

“56.In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.”

Hence, this judgment, far from supporting the respondent, supports the case of the appellants.

30.In the judgment of the Uttarakhand High Court relied on by the learned counsel for the respondent in YOGESH KUMAR GUPTA VS. M.K.AGARWAL reported in AIR 2009 UTTARAKHAND 30, the mother of the minor child died in a suspicious circumstances and a case was registered against the father under Sections 498-A and 304 (B) IPC. The children lived with the maternal grandparents. When the Court directed the child to be produced before the Court, the father did not even bother to appear to see the children. In those circumstances, relying on the judgment of the Honourable Apex Court in NIL RATAN KUNDU AND ANOTHER VS. ABHIJIT KUNDU reported in 2008 AIR SCW 5769, the Uttarakhand High Court granted custody in favour of the maternal grandparents. This judgment also supports the case of the appellants herein as the minor child in the present appeal is living with the first appellant herein along with the second and third appellants, who are the paternal grandparents.

31.The Patna High Court judgment relied on by the learned counsel for the respondent in BIMLA DEVI VS. SUBHAS CHANDRA YADAV NIRALA reported in AIR 1992 PATNA 76 does not apply to the facts and circumstances of this case as the respondent in the said case faced a criminal charge of murder of his wife, that is the mother of the minor child. Furthermore, the Patna High Court, in para 15 of its judgment, recorded as follows:

“15…….. Furthermore, it has come in evidence that the girls were born in Gaya and that they were brought up by the present appellant and her husband where they were properly looked after….”

That is, even before the death of the mother, the children were brought up by the maternal grandparents. In those circumstances, custody was granted to the maternal grandmother. Hence, the said judgment is not applicable to the facts and circumstances of this case.

32.Taking into account the facts and circumstances of the case and the paramount interest of the child and more particularly the fact that the minor child viz., Mariyam Parija is living with her father and the paternal grandparents, that is the appellants herein, from her birth and that the child does not even identify and recognise the respondent as her maternal grandmother, I am of the view that the Trial Court erred in appointing the respondent as Guardian and granted custody of the minor child to the respondent. While considering the paramount interest of the minor, it is not relevant that whether the father of the child is in regular employment or not. In fact, the child is put in a school and she is in a healthy condition and proper medical care is also given and there is no allegation of any ill-treatment to the child. Furthermore, the Trial Court did not look into the evidence of R.W.4, an independent witness, who deposed that he was doing fibre business along with the first appellant.

33.Hence, the judgment and decree dated 31.12.2009 passed in G.W.O.P.No.27 of 2007 by the learned First Additional District Judge, Madurai is hereby set aside. However, it is made clear that the respondent is entitled to seek visitation rights. Since the respondent did not come with any application, I leave it to the respondent to make an appropriate application before the concerned Court seeking visitation right.

34.With these observations, the Civil Miscellaneous Appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed.

TK

To
The First Additional District Judge

Categories: Child Custody
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