Kerala High Court
Suharabi vs D. Muhammed on 20 February, 1987
Equivalent citations: AIR1988KER30, AIR 1988 KERALA 30, (1988) ILR(KER) 1 KER 24, (1987) 2 CIV LJ 51, (1987) 1 KER LT 452, ILR (1988) 1 KER 24, (1987) 2 DMC 130, (1988) 1 HINDULR 528, (1988) MATLR 67
JUDGMENT Pareed Pillay, J.
1. Appellant is the petitioner in O.P. 117 of 1985 of the District Court, Kozhikode. She filed the petition under Section 25 of the Guardians and Wards Act against the respondent who is her husband for the custody of her female child Muneera aged 1 year and 7 months. The learned District Judge dismissed the petition holding that the indigent petitioner cannot be expected to look after the child properly.
2. The case of the petitioner is that she was married by the respondent on 5-12-1983, that two children were born to them in the wed-lock, that for the second confinement she went to her house with the child Muneera on 9-3-1985 and that on 14-3-1985 the respondent came there and forcibly removed Muneera from her custody. She seeks restoration of the child to her custody.
3. Respondent filed counter statement contending that the petitioner went to her house without his consent leaving Muneera in his house and that there is no element of truth in the allegation that he forcibly removed the child from her custody. It is further stated that the petitioner is not entitled to get custody of the child. He expressed his readiness to reside along with the petitioner in his house.
4. Admittedly the petitioner was married by the respondent on 5-12-1983. Child Muneera was born to them on 9-11-1984. Under the Hanafi School of Mohammadan Law mother is entitled to the custody of female child till the age of puberty. Under Shaffii and Maliki Law the mother is entitled to the custody of a female child until her marriage. (See Thyabji -- Muslim Law, Page 216, 4th, Edition). Whether petitioner follows Hanafi Law or Shaffii Law, there is no evidence. Even if it is held that she follows Hanafi Law she is entitled to the custody of her daughter till she attained the age of puberty. In Muhaidin v. Sainambu, AIR 1941 Mad 282 it is held as follows :
"There is a distinction in regard to the law as to the custody of a daughter between the Hanafis on the one hand and the Malikis, Shafeis and Hanabalis on the other. According to Hanafis, the mother is entitled to the custody of her daughter until she attains puberty while according to the latter she is entitled to her custody until she is married."
The District Judge without considering that aspect and also without considering the tender age of the child chose to reject the petition.
5. Learned counsel for the respondent submitted that the petitioner is placed in impecunious circumstances and therefore minor's welfare would undoubtedly be safe in the hands of the respondents. It is pointed out that the petitioner had filed a petition under Section 97 of the Cr. P.C. before the Additional Judicial Magistrate of the First Class alleging that the child was forcibly removed by the respondent from her custody and that petition was dismissed on 3-7-1985. As rightly pointed out by the counsel for the petitioner the dismissal of the petition by the Criminal Court can in no way affect her claim under the Guardians and Wards Act. As Muneera is only of tender age and as she requires maternal care and affection and that cannot be substituted by any amount of wealth or affluence the District Judge erred in giving the custody of the child to the respondent.
6. It is in evidence that the respondent is an employee of the Kerala State Electricity Board earning a monthly salary of Rs. 870/-. Petitioner admitted that she has no means of her own and that she is depending upon her brother. Merely because the respondent is better placed economically the custody of the child cannot be denied to the petitioner especially in view of the fact that the child is of tender age and as the personal law of the parties make definite preference on the mother. Merely on the ground that mother is not financially solvent as the father custody of the child cannot be deprived of from its mother. Welfare of the minor is of primary importance in an application under Section 25 of the Guardians and Wards Act. We have no doubt that viewed from every angle welfare of the minor in this case will be better protected if she is allowed to remain with her mother who alone can bestow best attention possible on her. In this context it is useful to refer to Saraswatibai Ved v. Shripad, AIR 1941 Bom 103 wherein it is held as follows :
"The paramount consideration in the matter of a custody of a minor of tender years is the interest of the child rather than the rights of the parents. Human nature being much the same all the world over, if the mother is a suitable person to take charge of the child, it to quite impossible to find an adequate substitute for her for the custody of a child of tender years and consequently the mother is preferable to the father in such case."
7. Considering the evidence and circumstances of the case we hold that the District Judge was not justified in passing the impugned order. The order of the District Judge is hereby set aside. O.P. 117 of 1985 stands allowed. The respondent is directed to hand over the custody of the minor to the appellant immediately, M.F.A. stands allowed There is no order as to costs.