Chattisgarh High Court
Mohd. Ayub Khan vs Saira Begum on 1 January, 1800
Equivalent citations: I(2002)DMC234, 2002(1)MPHT77(CG)
ORDER R.S. Garg, J.
1. The appellant being aggrieved by order dated 5-11-1999 passed in M.J.C. No. 37 of 1998 by the learned Second Additional District Judge, Bilaspur rejecting the appellant's application filed under Section 9 read with Section 25 of the Guardian and Wards Act has preferred this appeal under Section 47 of the Guardian and Wards Act.
2. The brief facts leading to the present appeal are, that the present appellant Mohd. Ayub Khan was married with respondent Saira Begum on 17-5-1990. During the subsistence of the marriage the parties were blessed with Adil Khan, Akib Khan and Mohd. AH Khan. On 5-10-1996 the present appellant for the reasons best know to him divorced the respondent. While leaving the matrimonial house the wife left with her three children and started staying with her father. Finding that life was difficult and it was not possible for her to maintain the children she made an application under Section 125 of the Code of Criminal Procedure somewhere in the year 1997. Along with the application she also made an application for grant of interim maintenance. The main petition and the application for grant of interim maintenance were opposed tooth and nail by the present appellant, therefore, the application for grant of interim maintenance even for those minor children who were about 7, 5 and 3 years was rejected. The appellant after realizing that the eldest son has become seven years of age, taking shelter under the Shariyat filed an application under Section 9 read with Section 25 of the Guardian and Wards Act seeking custody of the eldest son namely Adil Khan. This petition was filed on 11-11-1998. It is worth noting that the petition filed under Section 125, Cr.PC was also proceeding on one side and the wife was required to appear in these proceedings.
3. From the records it appears that during the pendency of the proceedings under Section 125, Cr.PC and these proceedings or after divorcing the wife the appellant did not pay even a paisa towards the maintenance of his three children. The petition filed under Section 125, Cr.PC was rejected by the Trial Court but in revision the order was set aside and the matter was remitted to the Trial Court. After recording the evidence and hearing the parties, by order dated 2-5-2001 the learned Judicial Magistrate, First Class, in Misc. Criminal Case No. 35 of 2001 awarded Rs. 300/- each to every minor. The alleged bona fides of the appellants are writ large.
4. The appellant in his petition filed under Sections 9/25 had submitted before the Trial Court that is being the natural and legal guardian of Adil Khan he be given the custody be appointed the guardian of the said minor. In Paragraph 8 of his petition he submitted that the respondent wife was not looking after the child properly and, up keep and maintenance of the child was not possible at the maternal grand-father's place and as the mother was not looking after the upkeep, betterment and education of the children, he be given custody of Adil Khan.
5. It is worth noting that the petition was filed on 11-11-1998 but the appellant did not show his bona fides by providing some help, assistance or even the alms to his own blood and flesh. On one side he was contesting the litigation under Section 125, Cr.PC and was opposing the petition of his own children by saying that they are not entitled to any maintenance but at the same time projecting himself to be a kindly and God fearing father, he was asserting that he is entitled to the custody of Adil Khan so that his future is taken care of.
6. I am unable to understand that how a person who is refusing to pay the maintenance to his own child can come before the Court and say that he is interested in the betterment of the very same child. On one side he refused to pay the maintenance but at the same time he says that if the custody is given to him then he would look after the future and career of the said child. The bona fides are not to be seen from what is said but are to be seen what is done. In the present matter, the present appellant has hopelessly failed in proving his bona fides. A simple assertion on the part of the appellant that he is interested in the upkeep and betterment and future of the child or the statement of his second wife that she would look after the child properly as her own son would not suffice but something further was to be brought on record. The appellant was required to satisfy the judicial conscience of the Court that in fact he is interested in the betterment of the child. No law can be woven without a moral fiber. If the moral fiber is missing from the law then the law would become ruthless and barbaric. The provisions under Section 125, Cr.PC are woven of moral fiber. They require a person - a person who has sufficient means - to maintain his or her dependants. No religion says that a person who is obliged to maintain his dependants should shirk the liability simply because they are living separately. No religion says that the law should not be woven of moral fiber. The morality requires from a father that he would look after the child. Even he is duty bound to ensure the maintenance and upkeep of the child. The Shariyat does not say that a father would be entitled to the custody of the child and divorced mother/divorced wife would work as a slave, after the divorce for a period of seven years, would look after the child, maintain him, keep him alive so that one fine morning the divorced husband breaks open the doors and takes the custody of that child. It is unfortunate that even after exhibiting such a conduct the present appellant has come to the Court and says that he is entitled to the custody of the minor.
7. On being asked as to why he simply wants the custody of one child instead of all the three, the appellant who is present in person says that in accordance with the Shariyat and the Hanafi Law by which the parties are governed, the mother has to take care of the child and has to have the custody of the same up to the age of seven years, therefore, he did not file an application for custody of other children. When this Court asked him that despite pendency of the criminal matters and the present petition why he did not make provisions for the maintenance of those children, he simply said that his father had gone to the house of the respondent but he was not allowed to meet the children. He is not ready to say that personal efforts were made by him for sending some money to those poor children who happen to be his children. He does not say even a single word in the Court as to why he contested the petition filed under Section 125. His only reply is that as the matter had gone to the Court he was contesting the litigation. I fail to understand the said argument. If the appellant want to project his bona fides and was really interested in the betterment and the interest of the children, he could have immediately conceded to the petitions of those children by saying that he would share his income, he would share his bread with his own children and would do the best which was possible for him in the interest of his children. In spite of doing so, he dragged his wife to the Court. He filed the petition on 11-11-1998 but did not ask the Court to make an application to the Court that he was ready and willing to deposit some money for the provisions of his own children, if not for the other two at least for the one whose custody he was seeking. It would be too much to say that the appellant had shown his bona fides. If the law says or even if the personal law says that a father would be entitled to the custody of the child then the moral fiber of that law says that the father or the person claiming the custody must project before the Court that there are bona fides in his offer, all through he had maintained his bona fides and had shown his interest in upkeep, betterment, future and career of the child.
8. Knowing well that the wife was not in a position to maintain the child, was not looking after the betterment of the child and was not looking after the education of the child (as alleged in Paragraph 8 of the petition), it was expected of the appellant to extend his helping arm to the child and pay something to him.
9. Should it be believed that the appellant is really interested in the custody of the child for his betterment, interest, future and career ? In the statements recorded before the Court below the appellant simply submitted that he was earning Rs. 30-40 per day. This statement probably was made by him to countenance the petition which was pending under Section 125, Cr.PC. If he is earning simply Rs. 40/- a day then it would not be possible for him to maintain the child. Realizing the hollowness and emptiness of his conduct, before this Court the appellant started asserting that his daily income was Rs. 100/-. Assuming he is earning Rs. 100/- per day and has interest in upkeep of child then to show interest in the betterment of the child at least he should have sent good amount towards the maintenance of the children. In Paragraph 1 of his statement he simply said that the minor was living in the custody of his mother with his maternal grand-father. In Paragraph 2 he said that he wants to maintain the child. In Paragraph 3 he said that he had gone to the house of father-in-law to seek custody of the child but the custody was not given. Beyond that he does not make even a single allegation against the respondent that she was not looking after the children and was not maintaining, was not providing proper education, clothing, shelter or anything or was unable to do anything in favour of the children. In Paragraph 4 he admitted the fact that he has re-married. Before me he admits that the respondent has not re-married. This Court is required to compare the conduct of the appellant qua the conduct of the respondent. After giving divorce to the wife the appellant has re-married. Unfortunately, from the second marriage he is not blessed with any child (this fact was admitted before me) and on the other hand the woman who has been unceremoniously turned out to the house has not re-married and is maintaining the children. Should this Court hold that the conduct and the actions of the appellant prove his bona fides or should this Court observe that a woman who is looking after his children from the first husband and is not ready to re-marry is projecting her bona fides. The balance obviously would tilt in favour of the respondent/mother who has not yet re-married, is earning and is trying to maintain the children. The appellant in Paragraph 4 of the statements admitted that the maintenance petition was pending before the Criminal Court. In Paragraph 5 he further admitted that he did not pay any amount to the children. He also admitted that in last one year he had not even gone to the house of the respondent. In Paragraph 6 he said that he had seen one of the child going to the school. If this is the father and this is the love and affection for his children then no Court can hold that simply because the personal law says so, the custody should be given to the father. The appellant did not even enquire either from the respondent or from her father or from the neighbours as to what education was being provided to his children, how they are living, how they are alive and whether they were sleeping after having their dinner. If the father does not show this little attachment towards the children then he cannot come before the Court and claim that he is entitled to the custody of the said child.
10. Roshanara the wife of the present appellant was also examined in support of the appellant's case. She had simply submitted before the Court that she had no child and if the custody is given to the appellant she would take him as her own child. In Paragraph 3 she stated before the Court that her husband was earning about Rs. 15-20 per day. Assuming the wife did not know about the husband's income but if the amount was to be paid the present appellant was required to pay the amount. The father can never say that unless the custody is given to him he would not make provisions even for the bread of any of the minor children. If the custody is prime consideration then the appellant may be right but the legislature while enacting the Guardian and Wards Act did take care of the moral fiber and provided under the Law that the interest of the child shall be of paramount consideration. In the present case the appellant has hopelessly rather utterly failed in proving that he is interested in the betterment and upkeep of the child. I could understand some bona fides in his application if he has said before the Court that the custody of all the children be given to him. On one side he says that he is interested in the children but from his own conduct exhibits that he is interested in the custody of one child only. He submits before the Court that upto the age of seven years, the children can remain in the custody of the mother, therefore he did not file an application for custody of the other two. Assuming that his personal law permits him to make such statement before the Court but the law of land does not permit to say so. He was required to say before the Court that even if the custody of all is not given to him but of only one child is given to him, he is ready and willing to maintain all. It appears that as from the second wife he could not be got any child he has started lodging claim on the eldest child.
11. After going through the entire records, I am unable to hold that the appellant has made out a case for interference in these proceedings.
12. At this stage, it would also be necessary to refer to the proceedings recorded by this Court on 26-7-2001. The minor Adil Khan was produced in the Court. The learned Judge of this Court questioned the child and found that his understanding was proper. The Court observed that his physique was good. In reply to the questions put by the Court the child informed that he was studying and was happily living with his mother and grand-father and his two younger brothers were also living with his mother and grand-father. This Court recorded that it was satisfied that the child was being brought up nicely.
13. This Court tried to intervene in the matter and therefore directed the appellant to deposit a sum of Rs. 6,000/- payable to Saira Begum that is the respondent for the maintenance of the children. The appellant wants to make a capital out of it by saying that he has deposited the amount of Rs. 6,000/-. I fail to understand that how this deposit can project a ground in favour of the appellant. When he says that he is the father and is interested in upkeep, maintenance and betterment of the children it is expected of him irrespective of the custody that would always see that his children are brought up properly. If an occasion arises he must show his readiness and willingness to share his bread with them.
14. In the present case, the appellant has failed in proving his conduct and failed in proving before the Court that he is entitled to the custody of the child. The Court below was certainly justified in dismissing the petition. I dismiss this appeal with cost Rs. 5,000/-.