Madras High Court
M.Masood Khan vs Sherin Jahan on 11 December, 2008
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :11/12/2008 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P.(NPD)(MD).No.2243 of 2008 and M.P.(MD).No.1 of 2008 M.Masood Khan ... Petitioner Vs. Sherin Jahan ... Respondent Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal order dated 04.11.2008 made in I.A.No.159 of 2008 in G.W.O.P.No.226 of 2007 on the file of the 1st Additional District Judge, Tirunelveli. !For Petitioner ... Mr.G.Prabu Rajadurai ^For Respondent ... Mr.S.Venkatakrishnan Mr.R.S.Ramanathan **** :ORDER
The respondent is the divorced wife of the petitioner. Their marriage was celebrated on 11.06.2001. On 10.06.2002, a girl baby was born to them and was named as Sabriah. There had been misunderstandings between them and in the mean while, on 20.08.2006, the respondent also delivered a male child.
2. The petitioner filed G.W.O.P.No.226 of 2006 on the file of the I Additional District Judge, Tirunelveli, for the relief of the custody of the child namely Sabriah. Pending enquiry of the said petition, the respondent filed a petition in I.A.No.159 of 2008 for interim custody of her daughter under Section 12 of the Guardian and Wards Act to direct the petitioner to hand over the minor child and to permit her to maintain and bring up her.
3. The learned I Additional District Judge, Tirunelveli, allowed the application directing to hand over the minor female child Sabriah to the respondent and he was permitted to take the custody of the child on every Sunday and stay with her from 8 a.m. to 6 p.m. Aggrieved by the order of the Court below, the petitioner has carried the matter before this Court.
4. In the affidavit, it is alleged about the strained relationship between the spouses which led them to live separately. In the counter, it is stated that the petitioner did not show affection towards the minor children and she was having negative attitude which caused unpleasant situation in the family. It is further stated that the petitioner (respondent) filed a maintenance petition which shows that this petitioner ( respondent ) was in a better position than her.
5. The learned counsel for the petitioner would submit that the paramount interest of the welfare of the minor child has to be taken into account by the Courts while considering the interim custody of the child. It is learnt that the respondent laid a complaint before the Superintendent of Police, Tirunelveli under the Domestic Violence Act against the petitioner and an enquiry was also held and it is stated that as a counter blast, he has filed the application. But it is denied by the petitioner's side.
6. The learned counsel for the petitioner Mr.G.Prabu Rajadurai would submit that since the minor girl has been living with the father, namely, this petitioner and naturally she is more affectionate than this respondent and even if the child is examined by the Court, it could be understood that she is still willing to stay with her father. In fact, the child was interviewed by the learned I Additional District Judge before whom she expressed her willingness to go with her father and she could not tell what was the place, where she was examined. Even though it is normal practice in the like cases to examine the child by the Court, still certain restrictions are there.
7. In 2008 (4) CTC 425, Nil Ratan Kundu and another Vs. Abhijit Kundu, the Supreme Court has held that calling a minor girl and interviewing her several times had not only served any useful purpose but had the effect of creating further depression and demoralisation in her mind. Their Lordships have extracted a relevant portion regarding this aspect from the judgment of the Privy Council in Anni Besant (Mrs.) v. G.Narayaniah & Anr, 41 IA 314: AIR 1914 PC 41. Having the Court below examined the girl already, it may not be necessary in this stage to consider the examination of the child by this Court.
8. The learned counsel for the petitioner placed much reliance upon two decisions of the Hon'ble Supreme Court reported in (2000) 9 Supreme Court Cases 745, Sumedha Nagpal Vs. State of Delhi and others. The Apex Court in paragraph 5 of the said judgment has held as follows:-
"5. In deciding such a question, what we have to bear in mind is the welfare of the minor child and not decide such a question merely based upon the rights of the parties under the law. In the pleadings and the material placed before us, we cannot say that there is any, much less clinching, material to show that the welfare of the minor child is at peril and calls for an interference. The trauma that the child is likely to experience in the event of change of such custody, pending proceedings before a court of competent jurisdiction, will have to be borne in mind."
9. He also relied on a judgment reported in (2001) 4 SCC 71, R.V.Srinath Prasad Vs. Nandamuri Jayakrishna and others, the Supreme Court has held as follows:-
"10. At the outset, we would like to observe that it will not be fair and proper for us to delve deep into the merits of the case since the petition filed for custody of the minor children is pending before the Family Court at Hyderabad and any finding recorded or observation made by us in this proceeding may prejudice the parties. Therefore, we will try to avoid entering deep into the merits of the case as far as possible. On a perusal of the judgment/order passed by the Division Bench, we are constrained to observe that neither the manner of disposal of the proceeding nor the order directing the change of custody of the children from their father to their maternal grandparents can be supported. The Division Bench appears to have lost sight of the factual position that at the time of death of their mother the children were left in custody of their paternal grandparents with whom their father is staying and the attempt of Respondent 1 was to alter that position before the application filed by them is considered by the Family Court. For this purpose it was very relevant to consider whether leaving the minor children in custody of their father till the Family Court decides the matter would be so detrimental to the interest of the minors that their custody should be changed forthwith. The observations that the father is facing a criminal case, that he mostly resides in USA and that it is alleged that he is having an affair with another lady are, in our view, not sufficient to come to the conclusion that custody of the minors should be changed immediately. It is relevant to state here that Respondent 1, maternal grandparents, wanted immediate custody of the minor children for the purpose of performing certain obsequies in connection with the cremation ceremony of their deceased daughter and that purpose had been served by the order passed by the learned Single Judge and such necessity for interim custody had ceased when the Division Bench passed the judgment/order under challenge. On the materials on record we are not satisfied that there was any urgency in disposing of the case with such haste without affording reasonable opportunity to the appellant to place material on record. The procedure followed by the High Court is neither fair nor proper."
10. R.V.Srinath's case (cited supra) involves facts of claims between a father of the child and its grandparents. While discussing about the facts of the case, Their Lordships have also observed that when the father is facing a criminal case and that he is having an affair with another lady, cannot constitute sufficient grounds to refuse custody of the minors. In the case on hand also, it is stated that the petitioner has divorced his wife by expressing "Talaq" as per Mohomedan Law and remarried after the said divorce. As per the learned counsel for the petitioner, that cannot be valid ground to reject his claim.
11. In this regard, the learned counsel for the respondent would submit that he having expressed talaq and divorced his wife and remarried, he has not mentioned anything in his pleadings that this respondent is unfit to hold the custody of the child. Further he draws attention of this Court to Mulla's Principles of Mahomedan Law which goes to the effect that the custody of the female child shall be with her mother till she attains puberty. The excerpt found in Mahomedan Law runs thus:-
"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 (e), unless she marries a second husband in which case the custody belongs to the father (f).
12. It is his further submission that General Law will not belittle the rights and interests of the minor child in derogation of their real affection towards any of its parents and the Personal Law is a common determinator.
13. Even though as per the learned counsel for the petitioner submitted that the General law need not be considered at the time of passing of interim custody order, still the Court has to bear in mind the Personal Law prevailing and governing the parties.
14. The learned counsel for the respondent also placed reliance upon an earlier decision of the Division Bench of this Court reported in Kumaraswami Mudaliar V. Rajammal, 1957 (II) MLJ 211, wherein the learned Judges have distinguished the custody and guardianship. While they dealt with the case before them, they referred to a Division Bench decision of the Bombay High Court and held that the personal care of the mother is the paramount consideration. The relevant portion contained in that judgment is extracted below:-
"There is an appreciable difference between custody and guardianship. If Kumaraswami Mudaliar is deprived of the guardianship of these children, he ceases to have any right to move the Court regarding them, whereas if he continues to be the guardian, and only the custody is given to Rajammal, he can always move the Court for returning the custody to him whenever he proves circumstances justifying it. So too, for getting a girl married, or for sending a boy for education abroad, and such like matters, the guardian will have powers, whereas if he is not the guardian he may have no such powers. Guardianship is certainly a more comprehensive and more valuable right than mere custody."
It is further held that the mother's position is regarded as of much more importance in modern times than it was in former days, when a wife was regarded as little more than the chattel of her husband.
15. The learned First Additional District Judge has elaborately discussed the facts involved in the case in the light of the decisions of the Supreme Court and various High Courts and reached the conclusion. In view of this Court, the female child shall be with the mother till she attains puberty as provided by the Mahomedan Law, considering the fact that the family was together till 2006 and on the account of second delivery, both of them got separated and the female child continued to stay with her father. Till 2006, the minor girl was also under the custody of the mother and there is no allegation to the fact that she was not affectionate towards her daughter.
16. Another contention raised is that in the middle of the academic year if the custody is given in favour of the respondent her studies will get disrupted. But, the learned counsel for the respondent would state that since the girl is reading only second standard, it will be easy for getting admission in a very reputed school at Tirunelveli.
17. Following the principles laid down by the Apex Court as well as this Court, this Court is of the considered view that the interim custody of the minor girl Sabriah shall be with her mother, the respondent herein. The parties will be governed by the final orders to be passed in G.W.O.P.No.226 of 2007. There is no circumstance to interfere with the orders passed by the Court below, which deserves to be confirmed and it is accordingly confirmed.
18. In fine, the civil revision petition stands dismissed. The First Additional District Judge, Tirunelveli is directed to dispose of G.W.O.P.No.226 of 2007 on his file before June, 2009. He will not get influenced with any of the observations made by this Court in this order. Consequently, connected M.P. is closed. No costs.
ssm To The 1st Additional District Judge, Tirunelveli