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Nasreen Bano v/s Mohd. Suhail

    First Appeal No. 8 of 2013

    Decided On, 09 August 2019

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE SUDHIR AGARWAL & THE HONOURABLE MR. JUSTICE RAJEEV MISRA

    For the Appellant: A.K. Rai, Vishnu Kr. Singh, Advocate. For the Respondent: Devashish Mitra, Shahabuddin, Advocates.



Judgment Text

Rajeev Misra, J

1. This is defendant's appeal under section 19 of Family Court's Act 1984 (hereinafter referred to as 'Act 1984'), challenging judgement dated 17.12.2012 and decree dated 20.12.2012, passed by Principal Judge, Family Court, Bareilly in Petition No. 21 of 2010 (Mohd. Suhail Vs. Smt. Nasreen Bano) under section 25 of Guardian and Wards Act, 1890 (hereinafter referred to as 'Act 1890') whereby and where-under Guardianship and custody of Ms. Sania Azmi and Ms. Jainab Azmi have been given to plaintiff-respondent.

2. It transpires from record that marriage of defendant-appellant Smt. Nasreen Bano was solemnized with plaintiff respondent Mohd. Suhail on 18.11.1999 in accordance with Muslim Rites and Customs. Out of aforesaid wedlock, three children namely, Ms. Sania Azmi, date of birth 30.4.2002; Ms. Jainab Azmi, date of birth 14.1.2007; and, Master Mohd. Umair, date of birth 28.3.2008, were born. Subsequently, relations between parties became strained. Defendant-appellant is alleged to have left house of plaintiff-respondent on 9.11.2008 along with her three children. Plaintiff-respondent filed Original Suit No. 151 of 2008 (Mohd. Suhail Vs. Smt Nasreen Bano) for restitution of conjugal rights in Family Court, Nainital, which was dismissed. Subsequently, plaintiff-respondent filed Case No. 21 of 2010 (Mohd. Suhail Vs. Smt. Nasreen Bano), under section 25 of Act 1890 seeking guardianship and custody of minor children.

3. A perusal of plaint (paper no.9 kha) will go to show that plaintiff-respondent alleged that marriage of plaintiff-respondent was solemnized with defendant-appellant on 18.11.1999 in accordance with Muslim Rites and Customs. From the aforesaid wedlock, three children namely, Ms. Sania Azmi, date of birth 30.4.2002; Ms. Jainab Azmi, date of birth 14.1.2007; and, Master Mohd. Umair, date of birth 28.3.2008, were born. Subsequently, after passage of some time, relations between the parties became strained on account

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of which it was alleged by plaintiff-respondent that defendant-appellant started misbehaving with plaintiff-respondent. The defendant appellant is further alleged to have deserted plaintiff respondent. She started residing at her khala's place. A case under Dowry Prohibition Act was lodged by Defendant-Appellant. Same was subsequently, withdrawn and Defendant-Appellant again started residing with plaintiff-respondent. On 8.11.2008, an unfortunate incident occurred in the house of plaintiff-respondent. On the next day, i.e. 9.11.2008, defendant-appellant along with her three children left her marital home and went to her khala's place and started residing there. It is at this stage, that plaintiff-respondent filed Original Suit No. 151 of 2008 for restitution of conjugal rights, which was dismissed vide judgement dated 28.4.2009. The eldest daughter Ms. Sania Azmi was studying at New Oxford School, Haldwani. However, as defendant-appellant had taken her along with herself and residing at Bareilly, she has been deprived of her education. The interest of other two children namely Ms. Zainab Azmi and son Master Mohd. Umair is also not well protected in the guardianship of defendant-appellant as she does not have sufficient means to look after and maintain three minor children. As plaintiff-respondent is the natural guardian of three children and their interest is well protected in the company of plaintiff-respondent, custody and guardianship of his three minor children be provided to plaintiff-respondent.

4. Suit filed by plaintiff-respondent was contested by defendant-appellant. She accordingly filed a written statement (Paper no. 14 kha), denying plaint allegations. Defendant-appellant not only denied plaint allegations but also raised additional pleas. According to defendant appellant conduct of plaintiff-respondent and his family members was not cordial. Time and again defendant-appellant was harassed by plaintiff respondent and his family members for demand of dowry. Later on physical and mental cruelty was committed upon defendant-appellant. Inspite of her best efforts to continue marital relationship, no efforts were made by plaintiff respondent to reform himself or improve his conduct towards defendant-appellant. There is no love and affection for defendant-appellant and ultimately, plaintiff-respondent ousted defendant-appellant from his home on 25.8.2008. Faced with despair and destitution, defendant-appellant filed Case No. 1506 of 2008 under section 125 Cr.P.C., which is still pending. It was also alleged that plaintiff respondent has given divorce to defendant-appellant and thereafter remarried. In view of aforesaid circumstances, it was pleaded by defendant-appellant that interest of minors is well protected in company of defendant appellant. As such, petition under section 25 of Act 1890, filed by plaintiff-respondent is liable to be dismissed.

5. After exchange of pleadings, parties went to trial. Plaintiff-respondent, in support of his case adduced himself as P.W.1 and one Afsar Ali as P.W.2. Defendant-appellant, in support of her defence, adduced herself as D.W.1 and further adduced Jamaluddin as D.W.2. Court below, upon consideration of pleadings and evidence adduced by parties, formulated single point of determination "whether interest of children lies in living with father or mother"?

6. To answer the above issue, Court below examined case of parties in the light of evidence so adduced. It concluded that marriage of plaintiff-respondent was solemnized with defendant-appellant on 18.11.1999 in accordance with Muslim Rites and Customs. Out of the wedlock of plaintiff-respondent and defendant appellant, three children namely, Ms. Sania Azmi date of birth 30.4.2002, Ms. Jainab Azmi date of birth 14.1.2007 and Master Mohd. Umair date of birth 28.3.2008 were born. On date of presentation of suit, all three children are living with their mother. It is established from record that Original Suit No. 151 of 2008 (Mohd. Suhail Vs. Smt. Nasreen Bano) for restitution of conjugal rights filed by plaintiff-respondent was dismissed vide judgement and decree dated 30.9.2011. In the aforesaid suit, issue no-2 was framed to the effect, whether plaintiff-respondent Mohd. Suhail has divorced defendant-appellant Nasreen Bano. The said issue was decided against defendant-appellant herein. In the light of above, defence raised by defendant-appellant that plaintiff-respondent has divorced her, was not accepted by Court below. Contention raised by defendant-appellant that plaintiff-respondent has remarried, was also completely not accepted. Court below concluded that factum of second marriage of plaintiff-respondent is admitted but plaintiff-respondent has granted divorce to his second wife, as is established from evidence of the parties. On the aforesaid findings, but without considering the paramount interest of children, comparative capacity of defendant-appellant and plaintiff-respondent to maintain three minor children; and, without even interviewing minor children, Court below directed that custody of two daughters namely, Ms. Sania Azmi, and Ms. Janinab Azmi be handed over by defendant-appellant as to plaintiff-respondent. The custody of minor son Mohd. Umair was allowed to be continued with defendant-appellant as in the maintenance Case No. 1506 of 2008, Principal Judge, Family Court Bareilly had already directed for payment of Rs. 1000/- per month towards maintenance of Mohd. Umair.

7. Thus, feeling aggrieved by judgement dated 17.12.2012 and decree dated 20.12.2012, passed by Principal Judge, Family Court, Bareilly, defendant-appellant has come up in appeal before this Court.

8. Mr. Vishnu Kumar Singh, learned counsel for defendant-appellant, in challenge to impugned judgement and decree passed by Court below has submitted before us, that court below has passed impugned judgement and decree without exercising due diligence. According to learned counsel for defendant-appellant, it is an admitted case of parties that two daughters were minors at the time of passing of impugned judgement and decree. Looking at the age of two daughters, there was no occasion before Court below to grant guardianship and custody of two daughters to plaintiff-respondent. He has further submitted that plaintiff-respondent has admitted in his testimony before court below that he is a carpenter by profession and does not stay at home during day time and secondly, he has remarried. In the light of aforesaid facts, it is urged that the judgement and decree passed by Court below cannot be sustained and is liable to be set aside. In support of his submissions, he has relied upon a Division Bench judgement of this Court in Zahid Ali Vs. Smt. Kesari, 1995 (1) AWC 94 and a judgement of a learned Single Judge in Mohd. Yunus Vs. Smt. Shamshad Bano, reported in AIR 1985 All 217.

9. Before proceeding to consider submission made by learned counsel for defendant-appellant, it will be appropriate to reproduce section 25 of Act, 1890:

"25. Title of guardian to custody of ward.-- (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custo­dy of the guardian.

(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882 (10 of 1882).

(3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship."

10. From the perusal of Section 25 of Act 1984 it is apparent that there are no directions contained in the section itself in accordance with which application for guardianship and custody shall be decided. However, as law has developed on the subject concerned, it is well crystallized that paramount interest of minor is the primary criteria for deciding custody and guardianship of a minor. Apart from above, it is now further established that a minor who is below five years of age, shall ordinarily be allowed to stay with mother. Similarly in case of minor girls, it has been the consistent view that their custody should remain with the mother till they attain the age of majority. It shall be useful to refer to a Division Bench judgement of this Court in First Appeal Defective No. 138 of 2019 (Mritunjay Vs. Hari Shankar Dixit) decided on 8.7.2019. In paragraphs 7, 8, 9, 10 and 11 Court has said as under:

"7. While determining the question of custody of a minor child, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute.

8. In Mausami Moitra Ganguli v. Jayant Ganguli (2008) 7 SCC 673, it has been held that the principles of law in relation to the custody of a minor child are well settled. While determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute.

9. In the above case, a passage from Halsbury's Laws of England (4th Edn., Vol. 13) was reproduced which reads as under:

"809. Principles as to custody and upbringing of minors.- Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other."

10. Earlier, Apex Court in Rosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840, ruled that the children are not mere chattels, nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian.

11. Following the above authorities, in Santhini Vs. Vijaya Venketesh (2018) 1 SCC 1 Court expressed the same view holding as under:

"It is to be borne in mind that in a matter relating to the custody of the child, the welfare of the child is paramount and seminal. It is inconceivable to ignore its importance and treat it as secondary. The interest of the child in all circumstances remains vital and the Court has a very affirmative role in that regard. Having regard to the nature of the interest of the child, the role of the Court is extremely sensitive and it is expected of the Court to be pro-active and sensibly objective."

(emphasis added)"

11. It is an undisputed fact that the eldest daughter Ms. Sania Azmi is aged about 17 years as on day. As such, she has not attained majority. The second daughter Ms. Jainab Azmi is aged about 11 years and therefore, she also has not attained even the stage of puberty. Court below has proceeded to decide the dispute without interviewing two daughters and without recording a finding regarding paramount interest of two daughters. Court below has further not weighed the circumstances which went with the father or mother in respect of custody and guardianship of two daughters. Merely on the basis of an ideological opinion which Court below opined bereft of record, guardianship and custody of two daughers has been given in favour of father i.e. plaintiff-respondent . The view taken by Court below is unsustainable inasmuch as plaintiff-respondent father of minor daughters is a carpenter by profession and does not stay at home during day time. As such, life and liberty of the two minor daughters shall be in jeopardi. In case they are allowed to remain in the company of plaintiff-respondent, their interest shall not be protective.

12. Apex Court in Lekha Vs. P. Anil Kumar 2006 (13) SCC 555, dealt with the issue regarding guardianship and custody of minor under section 25 of Act 1890 and observed as follows in paragraphs 15, 16, 17 and 19:

"15. Sk. Moidin v. Kunhadevi [AIR 1929 Mad 33 (FB)] was a case of a father, a motor driver, applying for writ of habeas corpus to get custody of his 7-year-aged child. Nobody was available in his house to look after such child. The Full Bench held that the Court has to look to an application under habeas corpus in the interest of the child as being paramount. The Court held that prima facie in the eye of the law, the father is the natural guardian and custodian of the person of his child. But it has been the law for a very long time both in England and in this country that what a court has to look to on applications under habeas corpus is the interest of the child as being paramount.

16. In Samuel Stephen Richard v. Stella Richard [AIR 1955 Mad 451 : 56 Cri LJ 1192] the High Court in deciding the question of custody held as follows: (AIR p. 452) "In deciding the question of custody, the welfare of the minor is the paramount consideration and the fact that the father is the natural guardian would not ''ipso facto' entitle him to custody. The principal considerations or tests which have been laid down under Section 17, in order to secure this welfare, are equally applicable in considering the welfare of the minor under Section 25.

The application of these tests casts an ''arduous' duty on the court. Amongst the many and multifarious duties that a Judge in Chambers performs by far the most onerous duties are those cast upon him by the Guardians and Wards Act. He should place himself in the position of a wise father and be not tired of the worries which may be occasioned to him in selecting a guardian best fitted to assure the welfare of a minor and thereafter guide and control the guardian to ensure the welfare of the ward--a no mean task but the highest fulfilment of the dharmasastra of his own country.

It is only an extreme case where a mother may not have the interest of her child most dear to her. Since it is the mother who would have the interest of the minor most at heart, the tender years of a child needing the care, protection and guidance of the most interested person, the mother has come to be preferred to others."

17. In Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka [(1982) 2 SCC 544 : AIR 1982 SC 1276] this Court held as under: (SCC p. 565, para 17) "17. The principles of law in relation to the custody of a minor appear to be well established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor."

19. The law permits a person to have the custody of his minor child. The father ought to be the guardian of the person and property of the minor under ordinary circumstances. The fact that the mother has married again after the divorce of her first husband is no ground for depriving the mother of her parental right of custody. In cases like the present one, the mother may have shortcomings but that does not imply that she is not deserving of the solace and custody of her child. If the court forms the impression that the mother is a normal and independent young woman and shows no indication of imbalance of mind in her, then in the end the custody of the minor child should not be refused to her or else we would be really assenting to the proposition that a second marriage involving a mother per se will operate adversely to a claim of a mother for the custody of her minor child. We are fortified in this view by the authority of the Madras High Court in S. Soora Reddi v. S. Chenna Reddi[AIR 1950 Mad 306 : (1950) 1 MLJ 33] where Govinda Menon and Basheer Ahmed Syed, JJ. have clearly laid down that the father ought to be a guardian of the person and property of the minor under ordinary circumstances and the fact that a Hindu father has married a second wife is no ground whatever for depriving him of his parental right of custody."

Thus from the aforesaid observations, it is explicitly clear that even though father is the natural guardian but simply on that ground he is not entitled to the custody and guardianship of minor children. The Court while deciding the guardianship and custody of a minor is to be guided by the observations made by Apex Court as referred to above. When the case in hand is examined in the light of observations made by the Apex Court (supra), the balance tilts in favour of mother i.e. defendant-appellant.

13. For the reasons given herein above, the present appeal succeeds and is allowed. The judgement 17.12.2012 and decree dated 20.12.2012, passed by Principal Judge, Family Court, Bareilly are set aside. The plaintiff-respondent is directed to hand over custody of Ms. Sania Azmi and Ms. Jainab Azmi to defendant-appellant within a period of one month from today
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