Delhi District Court
Mst. Arshi Riyaz vs Jalil Ahmed on 11 September, 2012
In the Court of Dr. Rakesh Kumar : Guardian Judge of Central Delhi
District at Tis Hazari Courts, Delhi
Guardianship Petition No.11 of 2011
Unique I.D. No.02401C0159242011
Mst. Arshi Riyaz
Daughter of Syed Riyazuddin
Resident of C69A, Zakir Nagar
Near SBI Branch, New Friends Colony,
New Delhi. ............Applicant
V E R S U S
Jalil Ahmed
Son of Late Mohd. Moin
Resident of 2729, Gali Chandi Wali,
Pahari Bhojla Turkman Gate,
Delhi110 006. ...........Respondent
Date of Institution : 04.04.2011
Date of reserving of Judgment : 01.09.2012
Date of pronouncement : 11.09.2012
Petition under Section 25 of the Guardians & Wards Act, 1890.
J U D G M E N T
1. This is an application for seeking permanent custody of minor Master 'Mazz Ahmed' aged about 08 years and baby 'Amina' aged about 04 years made by their mother Mst. Arshi Riyaz against their father Jalil Ahmed under the provisions of Section 25 of the Guardians & Wards Act, 1890 (hereinafter referred to as 'the Act').
G.P. NO. 11/2011 Page 1/232. In the present applicant, it is stated that the applicant was married to the respondent as per Muslim rites, customs and ceremonies on 22.01.2000 at Delhi; that after the marriage, the applicant and the respondent started living together at the matrimonial home at 2729, Gali Chandni Wali Phari Bhojla, Trukman Gate, Delhi 110006 as the respondent was residing in a joint family which consists of the brothers of the respondent Jamil Ahmed and his family, Shakil Ahmed and his family, Aqil Ahmed and his family and Vakil Ahmed and his family and three sistersin law i.e. (Nands), namely, Rehana, Shabana & Paro who are married and settled; that out of the wedlock, the applicant has two children; that the elder child is 'Mazz Ahmed', who was born on 12.07.2002 and thereafter female child namely 'Amina' who was born on 04.10.2006; that the respondent was not happy on the birth of female child; that when the applicant had become tired of the illegal acts and atrocities of the respondent and the physical and mental torture, pain which became unbearable than she requested the respondent for divorce but the respondent refused to divorce the applicant and respondent again and again demanding favour for doing unnatural sex with the applicant and she was mercilessly beaten and was kicked out in second week of February 2010 from the matrimonial home in bare three clothes; that she had to remain in her parental house till 04.06.2010 and the respondent pronounce divorce on demand i.e. Khula on 19.06.2010; the the respondent was not taking care of the minor children when they were residing with G.P. NO. 11/2011 Page 2/23 the parents of the applicant; that the respondent and his family members have no love and affection for the minor children; that the respondent had also neglected the baby Amina when she was seriously ill; that the children are in custody of the respondent and his family members since 19.06.2011 and the applicant till 19.06.2010 gave full love affection and care to the children and spent her quality time with the children; that the welfare of the minor children are with the applicant as she is the mother of the minor children and is natural guardian and children also require immensely the love and affection of the applicant; that it is in larger interest of the minor children that they are not deprived of the parenting by the mother; that the applicant is a literate lady upto BA IInd year, while respondent and his relatives are totally illiterate; that the applicant is educated, belongs to a well established family and has a strong and well rooted value system, most importantly is willing to devote all her time and energy to properly upbringing of her minor children; that the minor children are in impressionable and sensitive age where they need their mother as a role model to over come the fear, complexes and insecurities associated with their age; that the applicant had not incurred any legal disqualification and the minor children are fully entitled to the love and care of the applicant; that after kicking out of the applicant from the matrimonial home and the minor children were snatched from the custody of the applicant on 19.06.2010, the applicant approached to Police Station Chandni Mahal Delhi and but the police did not help G.P. NO. 11/2011 Page 3/23 her and the respondent with malafide intention filed a complaint against the applicant; that the police of Police Station Chandni Mahal also obtained the signature on some blank paper and also on some written papers by misrepresentation, undue influence and coercion with the promise that the children shall be handed over to the applicant in near future and contents of the written papers was not read over and explained to the applicant; when the applicant had gone to meet her minor children at the residence of the respondent she was not allowed to meet with her minor children and also refused to give custody of the minor children. It is further stated that for the welfare of the minor children their custody be handed over/restored to the applicant.
3. The respondent contested the present application by filing written statement of his defence contending wherein that present petition is not maintainable as the applicant has not come before the Court with clean hands and has suppressed material facts; that the applicant had eloped with one Mohd. Smeer Saifi on 04.06.2010 leaving behind the minor children and the respondent at her parental home; that the applicant had filed a false complaint dated 04.06.2010 against the respondent as well as against her own parents; that the applicant is living with the said Mohd. Sameer Saifi with whom she has already married and is living with him as his married wife; that the Mohd. Sameer is also married person who has also divorced his wife to marry the applicant and having two G.P. NO. 11/2011 Page 4/23 children who are living with him; that on 01.06.2010, the applicant came to her parental house and on 04.06.2010 the applicant eloped with the said Sameer Saifi from her parental home and after knowing the same, the respondent and father of the applicant went to Police Station Chandni Mahal for lodging a report, where he came to know that the applicant also came to the Police Chowki and submitted a written complaint against her parents as well as the respondent; that on the same day the respondent as well as father of the applicant also submitted written complaints to Police Station Chandi Mahal; that after two days it is informed by the Chowki in charge that the applicant is ready to settle the matter by withdrawing her complaint, if the respondent pronounces divorce upon the applicant according to the Muslim rites and ceremonies; that after a compromise dated 19.06.2010 which was duly signed before Chowki incharge in presence of the Advocate of the respondent and the applicant likewise agreed that the custody of the minor children shall remain with the respondent and that the applicant shall not claim the custody of the minor children from the respondent in any manner whatsoever; that the applicant is not a fit person particularly in view of the fact that after 10 years happy married life, the applicant has eloped with a person who is also having two children and who himself has divorced his first wife; that the children are studying in public school of Walled city of Delhi i.e. Happy School, Darya Ganj, New Delhi; that the minor children are daily taken to the school by the respondent and he himself G.P. NO. 11/2011 Page 5/23 personally brings the minor children to house; that the children are taking keen interest in education and are fully and emotionally attached with the respondent; that even grand mother(nani) of the minor children are taking all the care of the children with the help of her 'bahu' and the respondent; that the atmosphere of the house of the applicant in her new matrimonial home is not conducive for the proper growth of minor children; that there are two children of the said Mohd Sameer Saifi and in view of the above the minor children are not ready and willing to join the applicant; that the applicant is surrounded by criminal inasmuch as on 20.10.2010 when the respondent was taking the minor children to school the applicant along with four antisocial aliments attacked the respondent and caused injury to his person and forcibly took away the minor children which were recovered in a police raid at the residence of the applicant; that the minor children shall be deprived of the intense love and affection being shown to the minor children by all the family members and brothers/sisters of the respondent; that the minor children are getting proper care and attention and all the needs and requirements of the minor children are being fulfilled by the respondent. It is further stated that it is in the interest and welfare of the minor children that the custody of the minor children should remain with the respondent.
4. The applicant filed replication wherein she traversed the contentions of the written statement and reiterated the allegations made in the application.
G.P. NO. 11/2011 Page 6/235. From the pleadings of parties, following issues were framed for trial on 28.07.2011, namely:
1. Whether it is in the paramount welfare of the children "Maaz" and 'Amina' that their custody if given to the applicant? OPP
2. Relief.
6. The applicant examined only one witness. PW1 is Mst. Arshi Riyaz, the applicant herself. During her evidence, the applicant also produced the documents Ex.PW1/A to Ex.PW1/C.
7. The respondent examined two witnesses. RW1 is Jalil Ahmed, the respondent himself and RW2 is Mst. Quaisar Jahan. During his evidence, the respondent also produced the documents Ex.RW1/1 to Ex.RW1/5.
8. I have heard counsel for the parties and perused the material on record carefully.
9. My issuewise findings are as under :
Issue no. 1 Whether it is in the paramount welfare of the children "Maaz" and 'Amina' that their custody is given to the applicant?
10. Onus qua this issue was placed on the applicant.
G.P. NO. 11/2011 Page 7/2311. To prove this issue, it is stated by Mst. Arshi Riyaz in her affidavit that after marriage the applicant and the respondent lived together at the matrimonial home at 2729, Gali Chandni Wali Phari Bhojla, Trukman Gate, Delhi 110006 as the respondent was residing in a joint family which consists of his brothers Jamil Ahmed & his family, Shakil Ahmed & his family, Aqil Ahmed & his family and Vakil Ahmed & his family and three sistersinlaw (Nands), namely, Rehana, Shabana & Paro who are married and settled. It is further stated that out of the wedlock, the applicant has two children i.e. the elder child Mazz Ahmed who was born on 12.07.2002 and thereafter female child namely Amina who was born on 04.10.2006. It is further stated that the respondent was not happy on the birth of female child. It is further stated that in the first week of June, 2010, the applicant requested the respectable persons of the community that the respondent is not taking care of the applicant and her minor children who were residing with the parents of the applicant since 15.02.2010. It is further stated that the respondent or any of his family members had not come to see the applicant or her children as they had no love and affection for the minor children. It is further stated that parents of the applicant through a common friend requested the respondent to see and look after his own children but the respondent has showed his inability and has told the common friend that he is financially constrained and is in paucity of funds. It is further stated that the children are in the custody of the respondent and his family members since 19.06.2010.
G.P. NO. 11/2011 Page 8/23It is further stated that the applicant till 19.06.2010 gave full love affection and care to the children and spent her quality time with the children. It is further stated that she took care of their appearance, dressing sense, education and other activities and was always concerned about the physical and mental growth of the children. It is further stated that welfare of the minor children are with the applicant as she is the mother of the minor children and is natural guardian and children also require immensely the love and affection of the applicant. It is further stated that it is in larger interest of the minor children that they are not deprived of the parenting by the mother. It is also stated that it is imperative in the welfare of the minor children that their custody is restored to the caring hands of the applicant, who is an able and willing mother and also a literate lady up to BA IInd year while on the other hand the respondent and his relatives are totally illiterate. It is further stated that the applicant is willing to give it all to ensure that the minor children are brought up in a caring, congenial and healthy atmosphere without any emotional fear, complexes and insecurities. It is further stated that the minor children are at an impressionable and sensitive age where they need their mother as a role model to over come the fear, complexes and insecurities associated with their age and no other relative can be substituted the role of natural mother. It is further stated that being the legal and natural guardian of the minor children, the applicant had not incurred any legal disqualification and the minor children are fully G.P. NO. 11/2011 Page 9/23 entitled to the love and care of the applicant. It is stated that police officials of Police Station Chandni Mahal had obtained the signature on some blank paper and also on some written papers by misrepresentation undue influence and coercion with the promise that the children shall be handed over to the applicant in near future. It is further stated that the contents of the written papers were not read over and explained to the applicant in connivance with the respondent. It is further stated that the respondent has got no love and affection with the minor children. It is further stated that as per the admission of the respondent that he himself left the minor children at the mercy of the mother of the applicant who is an old aged lady suffering from various old aged ailments and is also not a natural guardian and it is the applicant who is the best person to maintain and look after the welfare of the minor children. It is further stated that the applicant has sufficient means to bring the children and to take care of their welfare. It is further stated that the respondent wrongly stated that custody of both the children is precondition of the Khula Divorce or that the applicant agreed that she will not claim the custody of minor children in the future. It is further stated that the respondent falsely alleged that the applicant was having affair with Mohd. Samir Saifi or that with whom she was having frequent meetings, chatting on internet and uninterrupted conversation in whole day and night or that the applicant disregarding 10 years happy married all of a sudden, eloped with Mohd. Samir Saifi on 04.06.2010. It is further stated that the G.P. NO. 11/2011 Page 10/23 applicant married with Mohd. Samir Saifi after observing the mandatory period of 'Iddat' in the month of October 2010. It is further stated that Samir Saifi is an affectionate, pious and gentle businessman who has provided all comfort of life and the applicant is living happy married life.
12. To disprove this issue, it is stated by RW1 Jalil Ahmed in his affidavit that since the inception of his marriage with the applicant, she had been residing with him comfortably and he had provided maximum comfort to her. It is further stated that all his family members had treated the applicant with utmost love and affection and at no point of time, the applicant was ever harassed, tortured, humiliated or put to the demands of dowry articles. It is further stated that since 01.06.2010 at about 2.30 am when the applicant was engaged at computer, he strongly protested against the said conduct of the applicant and this inferiorated the applicant and in the morning the applicant went to her parental home along with the minor children. It is further stated that on 04.06.2010, the respondent was informed by his motherinlaw telephonically that the applicant has left her parental house without telling anything leaving the minor children at her parental home. It is further stated that the respondent immediately rushed to the parental home of the applicant and he along with father of the applicant and brothersin law made their best effort to trace out the applicant but in vain. It is further stated that finally on 04.06.2010 the respondent along with G.P. NO. 11/2011 Page 11/23 father of the applicant went to Turakman Police Chowki of Police Station Chandani Mahal to lodge a missing report of the applicant. It is further stated that at Police Chowki Turakman Gate, the respondent and the father of the applicant came to know that in fact the applicant has eloped with one Mohd. Sameer Saifi. It is further stated that from 04.06.2010 till 19.06.2010, the applicant exerted utmost pressure upon the respondent from all corners to get the divorce from him. It is further stated that when the respondent found that the applicant has already gone with the strange Mohd. Sameer Saifi leaving the minor children at her parental home, and was residing with him from 04.06.2010, he was left with no option except to pronounce divorce to the applicant. It is further stated that negotiations were conducted with the applicant with the help of Sub Inspector Bharat Singh, Chowki Incharge, Turakman Gate Police Post, Police Station Chandani Mahal and draft agreements were exchanged. It is further stated that the respondent had insisted that if the applicant is seeking 'Talak' then she should agree that the custody of the minor children shall remain with him and accordingly final draft of the agreement was prepared wherein it was specifically mentioned that the minor children shall remain in the custody of the respondent and the applicant shall not file any case regarding custody of the minor children. It is further stated that the said agreement is already exhibited as Ex PW1/D which bears the signatures of the applicant and the respondent at point X and X1.
G.P. NO. 11/2011 Page 12/2313. It is further stated by RW1 Jalil Ahmed in his affidavit that the minor children were left behind by the applicant at her parental home on 04.06.2010 and since then the minor children are in the custody of the respondent and at no point of time their custody has been taken by the applicant. It is further stated that he treated the minor children with utmost love, affection and care and ensured that the minor children do not feel any inconvenience and all their demands and requirements have been fulfilled by him without even minor children demanding the same. It is further stated that the applicant by eloping with the said Mohd. Sameer Saifi during the subsistence of the marriage indulged in a manner which has compelled her parents to stand behind him like a rock as the parents of the applicant are fully convinced that the said activity, conduct and behaviour of the applicant is prejudicial to the reputation of their family. It is further stated that the applicant has remarried with Sameer Saifi who is already a married person and has two children from his first wife and both the said children are living with Sameer Saifi. It is further stated that the applicant left her parental home, leaving the minor children there and the minor children are in the custody of the respondent continuously and there is no question of the minor children being removed from the custody of the applicant on 19.06.2010 as has been falsely alleged by the applicant, in fact the minor children are in the constant custody and care of the respondent. It is further stated that since the day the applicant left the minor children at her parental home, she never G.P. NO. 11/2011 Page 13/23 bothered and cared about the minor children and it is the grandmother (nani) or the chachi and badi amma of the minor children who in addition to me have been taking care of the minor children. It is further stated that the minor children are studying in one of the best school of Old Delhi i.e. Happy Public School. It is further stated that minor son, namely, Maaz Ahmed is studying in 5th standard and the daughter baby Amima is studying in 1st standard. It is further stated that minor son Maaz Ahmed has secured C1 Grade which is equivalent to 65% to 70% marks in 4th standard and the daughter baby Amima has secured 95% marks in second nursery and the report card of the minor children for the last academic year are exhibited as Ex.RW1/1 (Colly) and report card for the current academic year are exhibited as Ex.RW1/2 (colly) which clearly shows that the respondent is taking all steps to ensure that the academic performance of the minor children is not effected under any circumstance. It is further stated that the minor children are prepared by the respondent as well as the grandmother (nani) of the minor children early in the morning and he takes the minor children to the school. It is further stated that the respondent has got registered himself and Mst Quaisar Jahan, the grandmother (nani) of the minor children as the guardian in Happy School, Daryaganj, New Delhi. It is further stated that after the school is closed, it is the grandmother (nani) who receives the minor children from the school and bring them to their house. It is further stated that when the applicant was residing along with the G.P. NO. 11/2011 Page 14/23 respondent, she always remained on bed sleeping till 11 or 12 p.m. and never bothered about the welfare of the minor children and it was he who had to prepare the minor children, prepare the breakfast for them and take them to the school. It is further stated that the mother of the applicant is deeply respected in the entire family who is looking after her entire family property/affairs effectively. It is further stated that it is the mother of the applicant who guide her entire family and gives her valuable advise to her relatives when they come and seek her advise. It is further stated that even today the minor children are deeply and emotionally attached with their grandmother (nani) who care them tremendously.
14. It is further stated by RW1 Jalil Ahmed in his affidavit that the applicant has no concern with the welfare of the minor children. It is further stated that since the second husband of the applicant is already having two children, the minor children cannot get the same love, affection, comfort and guidance from the applicant and the future of the applicant with the minor children shall remain bleak. It is further stated that the respondent is providing all sorts of comfort, love, affection and education to the minor children and he is capable of providing the same to the minor children comfortably and as such the future of the minor children is safe with him. It is further stated that respondent is doing the business of silver in Bullion Market, Chandani Chowk, Delhi and he has the financial G.P. NO. 11/2011 Page 15/23 capacity to provide best education in the best environment, fulfill all the needs and requirements of the minor children and he is in a position to ensure that the welfare of the minor children is safe with him. It is further stated that on the contrary, behaviour, conduct and attitude of the applicant towards her minor children is not worthy of a mother. It is further stated that on 29.10.2010 when respondent was taking the minor children to Happy School, Daryaganj, New Delhi, the applicant along with Mohd. Sameer Saifi and one Mohd. Wajid intercepted and forcibly snatched the minor children from him who were weeping, shouting and crying and they sped away in a car. It is further stated that the respondent sustained serious injuries during that incident as he was attacked by the said Mohd. Wajid. It is further stated that the respondent rushed to the police station Daryaganj where the police registered his complaint and raided the house of Mohd. Sameer Saifi at Okhla and recovered the minor children. It is further stated that the applicant has falsely alleged that she is running a boutique shop at her residence and earning Rs.30,000/ to Rs.35,000/ per month. It is further stated that the applicant is not earning any thing and she is a household lady. It is further stated that the respondent's brothers have been residing in different portions along with their family members happily and comfortably and they are a wellknit family and all of them are emotionally attached with each other and take care of every member of the family jointly. It is further stated that the minor children also have been residing there happily and comfortably and G.P. NO. 11/2011 Page 16/23 they get utmost love and affection in the joint family. It is further stated that the respondent along with Shri Riyazuddin, the father of the applicant had filed a written complaint with Chowki Incharge, Turakman Gate, Police Station Chandani Mahal on 04.06.2010, the copy whereof is exhibitd as Ex.PW1/2 and bears the signatures of Shri Riyazuddin at point B and his signatures at point C and bears the seal of the Chowki Turakaman Gate at point D. It is further stated that the respondent had also filed a complaint on 04.06.2010 with Chowki Incharge, Turakman Gate which is exhibited as Ex.RW1/3 and bears his signatures at point E. It is further stated that a compromise was duly arrived at between the respondent and the applicant on 19.06.2010 at Police Chowki, Turakman Gate and the report to this effect was recorded by the Chowki Incharge, Police Station Turakman Gate, Sub Inspector Bharat Singh which is exhibited as Ex.RW1/4.
15. It is stated by RW2 Mst. Qaisar Jahan in his affidavit that on 04.06.2010 she came to know that the applicant has eloped with one Mohd. Sameer Saifi, thereafter through chowki incharge, turakman Gate, some contact was established with the applicant, however she insisted that the respondent should pronounce divorce. It is further stated that after some negotiations the respondent agreed to pronounce divorce to the applicant with the condition that the custody of the minor children shall remain with him. It is further stated that this condition was incorporated in the agreement and on G.P. NO. 11/2011 Page 17/23 19.06.2011, compromise was arrived at between the parties whereby the applicant agreed that the custody of the minor children shall remain with the respondent and accordingly the respondent pronounced divorce upon the applicant. It is further stated that conduct of the applicant was most unfortunate as she had left her matrimonial home without any reason, leaving the minor children and marrying with a man who had already two children. It is further stated that the respondent is looking the minor children satisfactorily and the minor children are closely and emotionally attached with the respondent. It is further stated that the respondent is providing every comfort, care, love and affection to the minor children. It is further stated that the welfare of the minor children is safe with the respondent.
16. PW1 Arshi Riyaz has, in her cross examination, made the following deposition: "My both children Maaz and Amima are in custody of the respondent. Last Saturday I met both my children. Both are happy. They are getting good education......It is correct that in the complaint Ex.PW1/B nothing has been mentioned about the custody of the children......It is correct that Wazid Ali had signed the agreement/compromise in PS Chandni Mahal as a witness. The documents Ex.PW1/D1 does not bear the signature of Wazid Ali at Point A however, it bears my signature at point B (Vol. I was forced to sign this document)"
G.P. NO. 11/2011 Page 18/2317. In the light of evidence of the parties, admittedly, marriage between them was solemnized on 22.01.2000 according to Muslim rites and customs and out of this wedlock, Master Maaz Ahmad was born on 12.07.2012 and baby Amina on 04.10.2006. Admittedly, after some dispute between them, the parties had arrived at a compromise in the Police Station Chandni Mahal. The applicant has admitted her signature on the compromise deed Ex.PW1/D1.
18. Admittedly, in pursuant to the compromise arrived at between the parties in Police Station Chandni Mahal, the respondent pronounced Khula Divorce to the applicant on 19.06.2010. A perusal of Ex.PW1/D1 shows that as per clause 1 of this document respondent pronounced Khula Divorce to the applicant in presence of the witness and the applicant accepted divorce as per Muslim Rites and customs. As per clause 2 of the divorce deed Ex.PW1/D1 it was agreed that the applicant has settled the present past and future maintenance from the respondent along with 'Mehar' as well as 'Stridhan'. As per clause 3 of the Ex.PW1/D1 it was agreed between the parties that the children will be in the custody of the respondent in whole life and the respondent shall spent all the amount over the upbringing, education of children and their marriage in future and the applicant shall not claim custody of the minor children in future in any manner whatsoever. As per clause 4 of the divorce deed, the custody of both the children was precondition of the divorce deed and it was agreed by the applicant G.P. NO. 11/2011 Page 19/23 that she will never claim the custody of both the minor children in future in any manner whatsoever.
19. In the light of divorce deed (Ex.PW1/D1), the matter of custody of the minor children was settled between the parties and it was agreed that custody of the minor children shall remain with the respondent for ever who shall take care of their education welfare and marriage etc. and the applicant had given up her right to claim custody of the minor children.
20. The contention of the applicant is that the police of Police Station Chandni Mahal had obtained her signature on some blank paper and also on some written papers by misrepresentation, undue influence and coercion with the promise that the children shall be handed over to her in near future and contents of the written papers were not read over and explained to her. But, the applicant has not produced any evidence to prove this contention. There is no material on record to prove that her signatures were obtained on any document by misrepresentation, undue influence and coercion with the promise that the custody of the children shall be handed over to her in future. In view of the above, the applicant has failed to prove her contention.
21. Again, as per the provisions of the Order VI Rule 4 of the Code of Civil Procedure, 1908, where a party relies on any G.P. NO. 11/2011 Page 20/23 misrepresentation, fraud, breach of trust, willful default or undue influence, the plaint averments must set out with reasonable precision, the particulars so as to constitute allegations of misrepresentation, fraud, breach of trust, willful default or undue influence. It is well settled law that although misrepresentation, undue influence and coercion may, in part, overlap in some cases, they are in law different categories, and are in view of Order VI Rue 4 CPC required to be separately pleaded, with specificity, particularity and precision. A general allegations that the police officials obtained her signatures under fraud, coercion and misrepresentation will not suffice. The applicant has also failed to explain why police officials obtained her signatures under fraud, misrepresentation and coercion. The applicant has also not specifically stated whether her signatures were obtained by misrepresentation or by undue influence or by coercion. If her signatures were obtained by coercion then it must be specifically pleaded what was the nature of threat and other circumstances, date, time and place must be given. These pleas taken together by the applicant may be contradictory to each other. But, the plaintiff has not specifically averred the necessary particulars so as to constitute misrepresentation, undue influence and coercion as alleged by her. In view of the above, the plaint lacks material particulars as provided for under Order VI Rule 4 CPC.
G.P. NO. 11/2011 Page 21/2322. Further, before marriage with the applicant, Mohd. Sameer Saifi was also married to someone and has two children from his former wife. The applicant has admitted in her cross examination that she delivered a baby girl 'Alina' on 24.11.2011 from her second marriage. The said Mohd. Sameer Saifi is also having children from his remarriage with the applicant herein. If the custody of the minor children is given to the applicant they would always suffer from an inferiority complex of being the step children of Mohd. Sameer Saifi in company of his children from his first wife and also from the applicant.
23. Furthermore, after divorce, the respondent is not remarried. It is in the evidence of the respondent that he is taking good care of the minor children. This evidence of the respondent has not been controverted on behalf of the applicant. The applicant has also admitted in her cross examination that minor children are happy and getting good education in custody of the respondent. It is not disputed that the respondent is having good earnings from his business of silver. It is also in the evidence of the applicant herself that the respondent is having a very big joint family from whom the respondent get support for the care of the minor children.
24. On the other hand, there is no evidence on behalf of the applicant that she was earning anything before the date of divorce deed. In her evidence she has stated that she is running a beauty G.P. NO. 11/2011 Page 22/23 parlour and can maintain the children well. But, there is no evidence on record to prove that the applicant is earning Rs. 30,000/ to Rs.35,000/ per month.
25. There is another strange and disturbing feature in the case of the applicant that her mother Mst. Qaisar Jahan is also supporting the respondent for taking care of the minor children. Mst. Qaisar Jahan is the real mother of the applicant and she has stated in her evidence that the applicant had eloped with Mohd. Sameer Saifi and the respondent had agreed to pronounce divorce to the applicant on the condition that the custody of the minor children shall remain with the respondent.
26. For the discussion aforestated, I am of the opinion that the applicant has failed to prove that it shall be for the welfare of the minor children that their custody be delivered to the applicant. For the reasons aforestated, this issue is decided against the applicant and in favour of the respondent.
Relief
27. In view of my findings on issue no.1, the present application under Section 25 of the Guardians and Wards Act is dismissed. Announced in the Open Court on 11.09.2012 (Dr. Rakesh Kumar) Guardian Judge Central District: Tis Hazari Courts: Delhi G.P. NO. 11/2011 Page 23/23