Bombay High Court
Iftekar S/O Shahezad Hussain And ... vs Vakil Ansari And Others on 26 February, 2021
Author: N. B. Suryawanshi
Bench: A. S. Chandurkar, N. B. Suryawanshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FAMILY COURT APPEAL (FCA) NO.11 OF 2017
WITH
FAMILY COURT APPEAL (FCA) NO.12 OF 2017
FAMILY COURT APPEAL (FCA) NO.11 OF 2017
1. Iftekar s/o Shahezad Hussain,
Aged about 28 years, Occ: Auto
Rickshaw Driver, (Org. Respondents
....... On R.A.)
2. Afsana w/o Iftekar Hussain,
Aged about 26 years, Occ: Household,
Both R/o Plot No. 464, Yeshodhara
Nagar, Nagpur.
... APPELLANTS
// Versus //
1. Vakil Ansari,
Aged about 48 years, Occ: Business, (Org. Petitioners)
2. Dr. Nikhat Vakil Ansari,
Aged about 40 years, Occ: Doctor,
Both R/o C/o In front of Hafz Bakery
Mohsin Traders, Mominpura, Nagpur
... RESPONDENTS
WITH
FAMILY COURT APPEAL (FCA) NO.12 OF 2017
1. Iftekar s/o Shahezad Hussain,
Aged about 28 years, Occ: Auto
Rickshaw Driver , (Org. Petitioners
....... On R.A.)
2. Afsana w/o Iftekar Hussain,
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Aged about 26 years, Occ: Household,
Both R/o Plot No. 464, Yeshodhara
Nagar, Nagpur.
... APPELLANTS
// Versus //
1. Vakil Ansari,
Aged about 48 years, Occ: Business,
2. Dr. Nikhat Vakil Ansari,
Aged about 40 years, Occ: Doctor,
Both R/o C/o In front of Hafz Bakery
Mohsin Traders, Mominpura, Nagpur (Org. Respondents)
3. Muslim Ansari,
Aged about 57 years, R/o Plot No.
214, Abdul Hamid Nagar, Yashodhara
Nagar Chowk, Nagpur.
... RESPONDENTS
-----------------------------------------------------------------------------------------
Ms. Shabana Diwan, Advocate for appellants
Mr. Massod Shareef, Advocate for respondent nos.1 and 2
Ms. Poonam Moon, Advocate for respondent no.3 in FCA No.12 of
2017
------------------------------------------------------------------------------------------------
CORAM : A. S. CHANDURKAR AND
N. B. SURYAWANSHI, JJ.
RESERVED ON : 01/02/2021
PRONOUNCED ON : 26/02/2021
JUDGMENT (Per : N. B. SURYAWANSHI, J.)
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3 J. FCA-11-2017 + FCA-12-2017.odt These two appeals fled under Section 19 of the Family Courts Act, 1984 (for short, "the said Act") take exception to the common judgment of the Family Court, Nagpur in Petition No.D-31 of 2015 and Petition No.D-55 of 2015, by which the Petition No.D-31 of 2015 fled by the appellants for custody of the child "Ashman" was dismissed and Petition No. D-55 of 2015 fled by the respondent nos. 1 and 2 for appointing them as guardian of minor was decreed. Since both these appeals challenge the common judgment, they are being decided by this common judgment. For the sake of convenience, the parties are referred by their frst names.
2. Petition No.D-31 of 2015 :
i) Iftekar and Afsana fled this petition under Section 25 of the Guardians and Wards Act, 1860 for grant of custody of the child claiming that they were his biological parents. They pleaded that they had a love affair for eight years and they got married on 26.06.2013. The said marriage was performed without the consent of their parents. In the meantime, four years before their marriage, Iftekar was forcibly married with Shabnam. From the wedlock with Shabnam, daughter Asmira Fatema and son Izaan were born. Even after marriage of Iftekar ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 4 J. FCA-11-2017 + FCA-12-2017.odt and Afsana dated 26.06.2013, they were residing with their respective parents. Afsana conceived from Iftekar. The fact of the pregnancy was informed by Afsana to her parents when she was six months pregnant. Then the Iftekar and Afsana allegedly executed a marriage agreement (which was not produced before the Family Court). On 30.08.2014, Afsana delivered a son (hereinafter referred as "the child") at Meyo Hospital, Nagpur, who at the time of birth was suffering from jaundice. After discharge from the hospital, Afsana went to her matrimonial home but on the very next day, her mother and sister took her away along with the son, Iftekar went to Amravati. Afsana was told that Iftekar had abandoned them.
She was further told that due to jaundice, the condition of the child was critical. Her parents expressed their inability to provide better medical treatment to the child. At that time, the mental condition of Afsana was not proper and at the instance of the parents, Afsana handed over custody of the child to Vakil and Dr. Nikhat, at that time, the signature of Afsana was obtained. Afsana could not contact Iftekar. It was further averred that the father of Afsana informed her that the child died due to jaundice. Though Iftekar tried to contact Afsana, the contact could not be established. He then lodged oral ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 5 J. FCA-11-2017 + FCA-12-2017.odt information in Yashodhara Nagar Police Station. He learnt that the child was given in adoption to Vakil and Dr. Nikhat. When Iftekar and Afsana contacted Vakil and Dr. Nikhat, they demanded Rs.2,40,000/- for handing over custody of the child, to which Iftekar agreed. However, the matter could not be resolved, hence, ultimately Iftekar and Afsana lodged First Information Report (F.I.R.) on 12.05.2015 at Yashodhara Nagar Police Station. Iftekar and Afsana averred in the petition that the signature of Afsana on adoption deed was obtained under coercion and adoption is not recognized by the Muslim Law. Afsana was suffering from depression and was taking psychiatric treatment. Iftekar was an auto rickshaw driver and was in a position to maintain the child. Iftekar and Afsana, therefore, claimed that being natural, biological parents of the child, they were entitled for custody of the child.
ii) Vakil and Dr. Nikhat fled written statement and resisted the claim of Iftekar and Afsana. They contended that Vakil was a businessman and Dr. Nikhat was a Doctor having BUMS Degree and she was doing medical practice. Though they married 14 years back, they did not have any child. Father of Afsana namely Muslim (respondent no.3 in the petition) since ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 6 J. FCA-11-2017 + FCA-12-2017.odt last many years was working as a salesman in the cloth shop owned by Dr. Nikhat's father. Muslim narrated the peculiar situation to Dr. Nikhat's father that though Afsana was unmarried, she had delivered the child in Meyo Hospital, Nagpur, and the child was suffering from jaundice, when he confronted Iftekar, he had refused to accept Afsana and the child. The father of Dr. Nikhat asked him to give custody of the child to Vakil and Dr. Nikhat, who would take care of medical treatment and look after the better welfare of the child. Accordingly, Afsana agreed to hand over custody of the child. Accordingly, the adoption deed dated 27.10.2014 (Exh-55) was executed and notarized. After receiving custody of the child, Vakil and Dr. Nikhat admitted the child in Dr. Bhisikar's Hospital and thereafter in Oasis Nursing Home. Vakil and Dr. Nikhat spent approximately Rs.2,50,000/- on the medical treatment of the child. Thereafter, for fve months, Afsana was at her parent's house. When she had been to Meyo Hospital on 02.02.2015 with her aunt for medical treatment, she did not come back. Accordingly, her aunt lodged missing report no.5/2015 in Tahsil Police Station, Nagpur (Exh-56). Both Iftekar and Afsana were traced on 05.02.2015, they gave statements (Exhs-72, 73) to the Police, contending that they had performed ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 7 J. FCA-11-2017 + FCA-12-2017.odt Nikah in the year 2012 and they were having love affair for last seven years and that Afsana was residing with Iftekar on her own accord. Thereafter, Iftekar and Afsana approached Vakil and Dr. Nikhat and demanded custody of the child or in the alternative asked to pay them Rs.25,00,000/-. After the F.I.R. was lodged by Iftekar and Afsana, Vakil and Dr. Nikhat secured anticipatory bail on 14.05.2015. Vakil and Dr. Nikhat claimed that the child was illegitimate child of Iftekar and Afsana and Iftekar had no source of income. Admittedly, Iftekar frst married with Shabnam and two children were born out of the said wedlock. Vakil and Dr. Nikhat claimed that their fnancial condition was far better. Love and affection has developed between Vakil and Dr. Nikhat and the child and if the custody of the child was handed over to Iftekar and Afsana, he would be staying in acute poverty and illiteracy. On the other hand, Vakil and Dr. Nikhat were in a position to give excellent life to the child.
iii) Muslim the father of Afsana appeared and supported the case of Vakil and Dr. Nikhat. He contended that at the time of Shab-e-Barat, Afsana went to elder sister's matrimonial home at Pandu Nagar, Nagpur, there she disclosed about her affair ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 8 J. FCA-11-2017 + FCA-12-2017.odt with Iftekar and that she was pregnant from him. After Muslim learnt about it, he tried his level best to get Afsana married with Iftekar, but it was revealed that Iftekar was already married and was having children. When Iftekar was confronted by the family of Muslim, Iftekar denied any relationship with Afsana, thereby leaving Afsana in a state of disgraceful helplessness in an advanced stage of pregnancy. Iftekar and his family members insisted that Afsana should get aborted, but the same was not possible as the pregnancy was at advanced stage. After the delivery, the newly born infant was seriously ill as it was suffering from acute jaundice. There was nobody to look after the child as Afsana was unwed mother and was abandoned by Iftekar. It was fnancially not possible for Muslim to bear the medical expenses for treatment of the infant. He was not in a position to keep unwed mother (Afsana) and the infant at his house due to social reasons. Therefore, he accepted the proposal of Dr. Nikhat's father, with whom he was working, to hand over custody of the child to Vakil and Dr. Nikhat, who were married for more than 14 years but had no children of their own, who gave the child expert medical treatment. He further stated that Afsana willingly had handed over custody of the child to Vakil and Dr. Nikhat. He further contended that Iftekar ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 9 J. FCA-11-2017 + FCA-12-2017.odt and Afsana lived in a small dark and dingy house, which did not protect them from elements of changing nature. They were living in acute poverty, illiteracy and they were not in a position to give anything positive to the child. He contended that taking into consideration the fact that Vakil and Dr. Nikhat are well educated and they were having good fnancial position. In the interest of welfare of the child, his custody should remain with them. He therefore prayed for dismissal of the petition. Petition No.D-55 of 2015.
iv) Vakil and Dr. Nikhat fled this petition making identical pleadings as were made in their written statement fled in Petition No.D-31 of 2015. They prayed that they be appointed as guardian of the child. Iftekar and Afsana opposed their petition by fling written statement in which their contentions in the Petition No.D-31 of 2015 were repeated.
3. The learned Family Court after appreciating the evidence on record dismissed the petition fled by Iftekar and Afsana and decreed the petition fled by Vakil and Dr. Nikhat. Hence, the present two appeals challenging the said decision. ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 :::
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4. Heard learned advocate for the appellants (Iftekar and Afsana) and learned advocates representing the respondents (Vakil, Dr. Nikhat and Muslim).
5. The learned advocate for Iftekar and Afsana submitted that Mahomedan Law does not recognize the concept of adoption. Iftekar and Afsana were married before the birth of the child. According to her, a mahomedan male is entitled to perform four marriages, so no fault can be found with the marriage of Iftekar with Afsana, his marriage with her was a valid marriage. She relied on Section 255 of the Mahomedan Law in that behalf. By pointing out birth certifcate (Exh-38), she submitted that in the birth certifcate names of Iftekar and Afsana were mentioned as parents of the child and there is no dispute about their parenthood. She urged that since the marriage between Iftekar and Afsana was valid, the child born out of the said wedlock was a legitimate child and being the biological parents, Iftekar and Afsana were entitled to the custody of the child. She further submitted that the statement of Iftekar and Afsana recorded during investigation was not admissible in evidence and could not have been relied upon by the Family Court. In support of this submission, she ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 11 J. FCA-11-2017 + FCA-12-2017.odt placed reliance on M. Nageshwar Rao ..Vrs.. State of Andhra Pradhesh, (2011) 2 SCC 188. She further submitted that Dr. Nikhat had not fled Income Tax Returns of earlier years. According to her, Muslim was not capable of giving the child in adoption to Vakil and Dr. Nikhat. She argued that since Vakil was not examined, adverse inference needs to be drawn against Vakil and Dr. Nikhat. She further argued that Iftekar and Afsana being the biological parents of the child, they are entitled for custody of the child. According to her, Iftekar was having sufcient income to look after the welfare of the child. She also submitted that the learned trial Court has erroneously dismissed the petition for custody of the child and has further erred in decreeing the petition of Vakil and Dr. Nikhat. She therefore urged that both the family appeals fled by Iftekar and Afsana deserve to be allowed.
6. On the other hand, the learned advocate for Vakil and Dr. Nikhat supported the judgment of the trial Court submitting that Iftekar and Afsana are not in a position to take care of welfare of the child and Vakil and Dr. Nikhat were rightly appointed as guardian of the child. He submitted that the learned trial Court has properly appreciated the evidence on ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 12 J. FCA-11-2017 + FCA-12-2017.odt record and has rightly passed and has given well reasoned judgment, which does not call for any inference.
7. The learned advocate representing Muslim (third respondent) adopted the submissions of Vakil and Dr. Nikhat.
8. Heard the learned advocates for the parties at length and perused the record.
9. After hearing the rival submissions, following points arise for consideration :
i) Whether the decision of the Family Court of denying custody of the child to Iftekar and Afsana is legal and proper ?
ii) Whether the Family Court was justifed in appointing Vakil and Dr. Nikhat as guardian of the child ?
10. For deciding the controversy, it is necessary to consider the evidence on record. Iftekar and Afsana examined themselves in support of their claims. Iftekar deposed in terms of his pleadings in the petition by fling afdavit of evidence at Exh-27. He produced Nikahnama (Exh-37/1) of his marriage ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 13 J. FCA-11-2017 + FCA-12-2017.odt with Afsana, original birth certifcate of the child (Exh-38), discharge card of Afsana (Exh-39), auto rickshaw's RC Book (Exh-42) and his auto rickshaw's driving license (Exh-43). In the cross examination, he denied that Afsana did not reside with him in his house before birth of the child on 30.08.2014. He also denied that at the time of delivery on 30.08.2014, Afsana was at the house of her parents. He stated that he was present at Meyo Hospital, Nagpur on 30.08.2014. He further stated that he had produced documentary proof to show that on 30.08.2014, Afsana was mentally ill. He further admitted that till six months of pregnancy, Afsana was at the house of her parents and on second day of the delivery, she went to her parent's house with the child. Thereafter, he came to know that the child became ill. He deposed that he had deputed his younger brother Sohail for taking care of Afsana and the child and Sohail took Afsana and the child to Meyo Hospital. On that day, according to him, he had gone to Amravati to fetch his frst wife Shabnam. After returning to Nagpur, on the next day, he tried to contact Afsana and her parents, but nobody answered his call. Though he repeatedly visited Afsana's parents house, every time he found it locked. He was not allowed to meet Afsana, hence, he went to Yashodhara Police Station to lodge a ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 14 J. FCA-11-2017 + FCA-12-2017.odt report, but the same was not accepted. He further deposed that for the frst time, he met the child after six months on 30.08.2014. He admitted that during the period of six months, he had not fled any proceedings in the Court. He was unaware about the nature of treatment given to the child for six months and in which hospital, the child was admitted. He admitted that he met Afsana at Meyo Hospital on 02.02.2015 and from there, she accompanied him to his house and at that time, the child was not with Afsana. Thereafter, Iftekar and Afsana went to Yashodhara Police Station and lodged a report. He denied the suggestions that there was no Nikah between him and Afsana and that they were having illicit relations, due to which the child was born. He denied the suggestions that Afsana was never mentally ill and when she was in her sixth month of pregnancy, he had abandoned her. He admitted that since 05.09.2014, the child was in custody of Vakil and Dr. Nikhat. Till the fling of these petitions, Dr. Nikhat never told him about the document dated 27.10.2014, which was executed in favour of Vakil and Dr. Nikhat. He stated that he was called at Afasana's parental house and he was asked about the pregnancy of Afsana without any Nikah. He admitted that Muslim was working in the cloth shop of Dr. Nikhat's father. He also admitted that Vakil and ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 15 J. FCA-11-2017 + FCA-12-2017.odt Dr. Nikhat gave good treatment to the child in good private hospital and the expenses of the treatment were borne by them. He admitted that he did not fle any application in respect of illness and neglect of the child by Vakil and Dr. Nikhat. He admitted that he was staying with Shabnam from whom daughter Asmira Fatima aged about 4 years and son Izaan aged about 15 months were born. Till that date, daughter Asmira was not admitted in the school. Afsana was also residing with them. His house was of fve rooms ad-measuring 800 sq.fts. He denied the suggestion that his house was on encroached land and it was a hut. He also admitted that he was not a income tax payer. He denied the suggestion that to extract money from Vakil and Dr. Nikhat, a false petition was fled by him.
11. Afsana fled afdavit in terms of the pleadings in the petition. In the cross examination, she admitted to have delivered a female child on 24.10.2016. At the time of deposition, she was residing at Muslim's house. She stated that she did not disclose the fact of her affair with Iftekar for eight years to her parents. She admitted that Exh-32/1 (adoption deed) from the Petition No.D-55 of 2015, though had her ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 16 J. FCA-11-2017 + FCA-12-2017.odt photograph, it did not bear her signature. She deposed that she used to sign in Hindi and not in English. Nikahnama (Exh-52) was having her signature in Hindi in column no.3. She admitted that at the time of delivery of the child, she was informed that the newly born child was having jaundice. She was taken to Meyo Hospital where Vakil and Dr. Nikhat were called. She was told that there were no chance of survival of the child. The child was taken to Dr. Bhisikar's Hospital. She was unaware as to where the child was taken thereafter. She admitted that Vakil and Dr. Nikhat took custody of the child. She was unable to give the exact date when they took custody of the child. She did not lodge any report against Vakil and Dr. Nikhat. She denied the execution of the adoption deed (Exh- 32/1), though she admitted the photographs of Vakil and Dr. Nikhat on that document and the signature of her father. She further admitted that the copy of her Aadhaar card was annexed with Exh-32/1. According to her, it was quite possible that Exh-32/1 was bearing her thumb impression. She claimed to have studied upto 10th standard in Hindi medium. She further deposed that since the time of fling of the petitions, no medical treatment was being given to her except for fracture her left leg three months before. She deposed that it was not ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 17 J. FCA-11-2017 + FCA-12-2017.odt true to say that her mental condition was throughout good. She also denied that she herself on her own and her father handed over the permanent custody of the child to Vakil and Dr. Nikhat. She admitted that she and Iftekar had given statement in the Police Station. When she was asked that her Nikah was performed with Iftekar on 08.02.2015, she answered that it was true but it was subject to the condition that her male child would be given to her. She admitted that there was no pleading to that effect in the petition or written statement that on that condition the marriage was performed on 08.02.2015. She admitted that till her frst delivery, she was residing with her parent's house and she had never been to Iftekar's house. She admitted that she was residing with Iftekar and his frst wife and children. When she was asked that Vakil and Dr. Nikhat were taking proper care of the child, she replied that she was not concerned and she wanted her child back. She did not know if Vakil and Dr. Nikhat spent on the child's medical treatment for jaundice. She further deposed that she arrayed her father Muslim as respondent no.3 as he was not ready to secure the custody of her male child and as her father had played a major role in giving custody of the child to Vakil and Dr. Nikhat. She further admitted that before she delivered the ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 18 J. FCA-11-2017 + FCA-12-2017.odt child, Iftekar's frst marriage had already taken place 3 1/2 years before and at that time, Iftekar was already having a female child aged at two years from his frst wife. She also admitted that when she conceived for the frst time, at that time she was residing at the house of her father. She denied that she conceived without marriage and so as to avoid defamation, her father gave permanent custody of the child to Vakil and Dr. Nikhat. At that time, the condition of the child was very delicate and her father was not in a position to give the child required medical treatment. She denied the suggestions about fling a false case. She admitted that her relations with her father were cordial.
12. Dr. Nikhat fled afdavit of evidence reiterating the contentions in the written statement. She produced on record the documents of medical treatment provided to the child at Exhs-64 to 71, certifed copies of police statements of iftekar and Afsana at Exhs- 72 and 73 respectively, the certifcate of circumcision performed on the child at Usmani Hospital, Nagpur at Exh-74 and she also produced her Income Tax Return for the year 2015-16 and 2016-17 at Exhs-75 and 76. During the cross-examination, she deposed that she had completed 15 ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 19 J. FCA-11-2017 + FCA-12-2017.odt years of her medical practice and she was continuing her medical practice. She admitted that she did not produce any letter heads on record and has not disclosed what business her husband (Vakil) was doing. She admitted that she did not mention anything in respect of income of Vakil and her own income in her pleadings and evidence. She admitted that before 05.09.2014, she had never met the child's real mother i.e. Afsana. She stated that no adoption deed was executed on 05.09.2014. She admitted that in the discharge summary Exh-65, Oasis Nursing Home had recommended breast feeding to the child. She gave bottle milk to the child. She denied that for want of breast feeding, the child was not keeping good health. She admitted that Afsana was given access to the child only as per Courts orders. She was unable to answer whether the adoption deed Exh-55 was illegal. She volunteered that it was executed as per the wish of the child's mother Afsana. She stated that till the date of deposition, she did not invest any money in the name of the child. She volunteered that by the time, the child attains the age of two years, she would invest money in his name. She admitted to have not lodged any police report in respect of Iftekar's and Afsana's demand of Rs.25,00,000/-.
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13. From the evidence adduced on record, it appears that the child was born to Afsana on 30.08.2014 and in the birth certifcate (Exh-38), the names of Iftekar and Afsana were recorded as parents. Admittedly, Afsana was at her father's home from conception till her delivery. It is not disputed that after birth, the child was having jaundice and his condition was critical and on the 5th day of the birth, the child was handed over in custody of Vakil and Dr. Nikhat. It is also clear from the evidence that due to the proper medical treatment given to the child by Vakil and Dr. Nikhat, he recovered from the jaundice. Though the learned advocate for Iftekar and Afsana placed reliance on Nikahnama (Exh-37) dated 26.06.2013, the same would not be admissible in evidence as contents of the same are not proved by leading cogent evidence. The witnesses who were allegedly present at the time of said Nikah and who signed the alleged Nikahnama were not examined, therefore, the said Nikahnama cannot be relied upon.
14. It is also admitted position on record that Iftekar married with Shabnam 3½ years before, Afsana gave birth to the child. At that time, Iftekar and Shabnam were having daughter aged about two years and Iftekar was residing with Shabnam ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 21 J. FCA-11-2017 + FCA-12-2017.odt and his daughter and Afsana was residing with her father. From the evidence on record, it prima-facie appears that the child was born out of love affair and physical relations between Iftekar and Afsana and they were not married at the time when the child was born. The evidence on record shows that Afsana was taking treatment for mental illness. The evidence of Muslim depicts the peculiar situation in which custody of the child was handed over to Vakil and Dr. Nikhat. He had deposed that he was the father of unmarried daughter, who had delivered the child. Iftekar had disowned Afsana and the child. With a view to save the family reputation and he was not fnancially capable to give costly medical treatment to the child, who was in critical condition, in consultation with Afsana, he took decision to hand over custody of the child to Vakil and Dr. Nikhat.
15. There can not be any dispute that the concept of adoption is alien to Mahomedan Law, therefore, the adoption deed at Exh-55 cannot be solely relied upon by Vakil and Dr. Nikhat. However, in terms of Section 14 of the said Act, the Family Court is entitled to look into the documents which would assist it to deal effectually with the dispute. The learned Family ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 22 J. FCA-11-2017 + FCA-12-2017.odt Court was therefore entitled to take into consideration Exh-55 for collateral purposes. In Exh-55, it is mentioned that the minor was born from illegitimate relations to Afsana and with a view to give higher education to the child and considering his future, he was being given in adoption. On Exh-55, the photographs of Afsana, Vakil, Dr. Nikhat and Muslim, so also of two witnesses are afxed and all of them have executed it on 27.10.2014. Aadhaar Cards of all the signatories are also annexed with Exh-
55.
16. Three dates of Nikah of Iftekar and Afsana have come on record. In the pleadings, they both have claimed to have performed Nikah on 26.06.2013 as per Nikahnama (Exh-37/1). During the cross-examination, a specifc question was asked to Afsana :
"Question : Your Nikah was performed with the petitioner no. 1 on 08.02.2015.
Answer : It is true, but it was subject to the condition that my child will be given to me."
In the next sentence, she admitted that it was not pleaded in the petition/written statement that the ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 23 J. FCA-11-2017 + FCA-12-2017.odt condition for performing marriage dated 08.02.2015 was that a permanent custody of her male child would be given to her. Nikahnama dated 08.02.2015 is at Exh-52 on record. In the complaint lodged for missing of Afsana, the statements of Iftekar and Afsana were recorded at Exhs-72 and 73. In the said statements, they both have stated that they got married in the year 2012. They have failed to prove any of the Nikah in the Court neither the witnesses present and Kazi, who performed their Nikah were examined by them. Therefore, their claim of having performed Nikah is unacceptable.
17. It is settled legal position that the welfare of the child is the paramount consideration in custody matters.
In Gaurav Nagpal ..Vrs.. Sumedha Nagpal , 2009(1) SCC 42, the Hon'ble Apex Court held that : " the Court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings, but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important."
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24 J. FCA-11-2017 + FCA-12-2017.odt In Mausami Moitra Ganguli ..Vrs.. Jayant Ganguli , 2008(7) SCC 673, it was held by the Hon'ble Apex Court that :
"it is the welfare and interest of the child and not the rights of the parents, which is the determining factor for deciding the question of custody. The question of welfare of the child has to be considered in the context of the facts of each case and decided cases on the issue may not be appropriate to be considered as binding precedents."
In Gaytri Bajaj ..Vrs.. Jiten Bhalla, (2012) 12 SCC 471, the Hon'ble Apex Court held :
"14. From the above it follows that an order of custody of minor children either under the provisions of the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956 is required to be made by the Court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the parent concerned to take care of the child are some of the relevant factors that have to be taken into account by the Court while deciding the issue ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 :::
25 J. FCA-11-2017 + FCA-12-2017.odt of custody of a minor. What must be emphasised is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court."
18. Custody of the child is a sensitive issue, which involves sentimental attachments. The welfare of the child has to be considered in the background of the relevant facts of each case. A balance needs to be struck between the attachments and sentiments of the parties towards the child.
19. Keeping in mind the principles laid down by the Hon'ble Apex Court in the above authorities, if we consider the facts of the present case, the position that emerges from the record is that, Afsana is staying with Iftekar and his frst wife Shabnam and their two children namely Asmira Fatema and son Izaan. She has recently delivered a female child, thus Iftekar has responsibility to maintain two wives and three children. Iftekar admittedly is a rickshaw driver, he had purchased the rickshaw on fnance. His fnancial condition does not appear to be sound. Iftekar and Afsana have failed to prove that Iftekar was getting steady and regular income. The photographs Exhs- ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 :::
26 J. FCA-11-2017 + FCA-12-2017.odt 57 and 58 show that the house of Iftekar and Afsana is made of tins and it appears to be a temporary structure, thus they do not appear to have proper accommodation. Iftekar has also admitted that till the date of deposition his daughter Asmira Fatima was not going to school. Afsana has been taking treatment for mental ailment.
20. Admittedly, the child was born on 30.08.2014 and his custody was handed over to Vakil and Dr. Nikhat immediately on the 5th day of his birth. At that time, the child was suffering from jaundice and his condition was critical. Vakil and Dr. Nikhat spent substantial amount on the expert medical treatment given to him, due to which he recovered. Since then, the child was nurtured and brought up by Vakil and Dr. Nikhat, the child is now of a six years of age and naturally he is mentally and emotionally attached to Vakil and Dr. Nikhat. The child has developed a bond with Vakil and Dr. Nikhat as his parents. They both appear to be in a position to look after the child and to provide adequate facilities to him in proper and congenial manner. They appear to be giving good upbringing to the child.
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27 J. FCA-11-2017 + FCA-12-2017.odt
21. In case the child's custody is handed over to Iftekar and Afsana, it would cause emotional turmoil to the child. He will be uprooted from the present family of Vakil and Dr. Nikhat and the surroundings in which he is brought up and will be required to go in totally alien surroundings and circumstances, in which it would be difcult for him to adjust.
22. The record indicates that Vakil and Dr. Nikhat are also in a better fnancial position to give quality life and quality education to the child. Except the child, there is no other responsibility on them. We clarify here that we are not thinking of the welfare of the child in terms of fnancial position alone, but it has to be taken into consideration as one of the relevant factor.
23. There is sufcient evidence on record to prove that Vakil and Dr. Nikhat are in a better position to take care of the welfare of the child. They are taking care of his health, education, intellectual development and are giving him favourable surroundings and they are imbibing moral and physical values in the child. In our considered opinion, they are in a better position to look after the moral and physical welfare ::: Uploaded on - 26/02/2021 ::: Downloaded on - 27/02/2021 00:46:45 ::: 28 J. FCA-11-2017 + FCA-12-2017.odt and the future of the child.
24. For the aforestated reasons, after taking into consideration all the relevant factors and facts of the present case, we do not feel it desirable to disturb the custody of the child. We are of the considered view that in the interest of the welfare of the child, his custody should remain with Vakil and Dr. Nikhat. The appeals fled by Iftekar and Afsana are devoid of any merit and they are liable to be dismissed. Hence, the following order :
i) Family Court Appeal No.11 of 2017 and Family Court Appeal No.12 of 2017 are hereby dismissed.
ii) The common judgment and decree passed by the learned Family Court in Petition Nos.D-31 of 2015 and D-55 of 2015 is hereby confrmed.
JUDGE JUDGE
TAMBE
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