Orissa High Court
(An Appeal Under Section 47 Of The ... vs Sk. Khalid on 30 October, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 30-Oct-2024 18:18:33
IN THE HIGH COURT OF ORISSA AT CUTTACK
GUAP No.9 of 2023
(An Appeal under Section 47 of the Guardians and Wards Act,
1890)
*****
Sk. Haider Ali .... Appellant
-versus-
Sk. Khalid .... Respondent
For Appellant : Mr. Soumya Mishra, Advocate
For Respondent : Mr. Abhishek Dash, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
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Date of Judgment 30.10.2024
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JUDGMENT
1. This matter is taken up through hybrid mode.
2. This Appeal has been filed under Section 47 of the Guardians and Wards Act, 1890 (for brevity 'the Act') read with Section 19(1) of the Family Courts Act, 1984 assailing the judgment dated 16th March, 2023 passed in GMC No.57 of 2022, whereby learned Judge, Family Court, Mayurbhanj at Baripada allowed an application under Section 25 of the Act filed by the Respondent-father for custody of his minor daughter (for brevity 'minor') has been granted directing the Appellant (maternal uncle) to handover the custody of the minor to the Respondent within one month from the date of the judgment.
GUAP No.9 of 2023 Page 1 of 23 Signature Not Verified Digitally SignedSigned by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 2 //
3. Parties to the proceeding before learned Judge, Family Court are governed under their personal law, i.e., Mohammedan Law.
4. Brief statement of facts necessary for adjudication of the Appeal are as under: -
4.1 The Respondent got married to one Ayesha Khatoon, the sister of the Appellant on 31st January, 2017 as per the customs under Mohammedan Law. The couple blessed with a son and a daughter. On 5th July, 2022, wife of the Respondent was admitted in Pandit Raghunath Murmu Medical College and Hospital, Baripada.
Subsequently, she was referred to SCB Medical College and Hospital, Cuttack. However, she breathed her last on 24th July, 2022 at Sum Hospital, Bhubaneswar. After observing necessary formalities at the hospital, the Respondent brought the corpse of his wife to Baripada where she was buried as per their customs.
4.2 It is alleged by the Respondent that taking advantage of the situation, the Appellant forcibly took away the minor with the assistance of Police. Later, the Respondent and his father were called to the Police Station where they were allegedly compelled to execute a document not to claim the custody of the minor or to file any case in future for her custody. As the Appellant did not hand over the custody of the minor to the Respondent, he filed GMC No.57 of 2022 under Section 25 of the Act claiming custody of the minor.
4.3 The Respondent stated, inter alia, that he has sufficient means to look after the minor. His family consisted of his son who desperately waiting for his sister who is the minor and is missing her GUAP No.9 of 2023 Page 2 of 23 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 3 // company. The Respondent has also his parents and unmarried daughter living with him. Thus, the welfare of the minor would be best achieved being with the Respondent. The Respondent being the father is the natural guardian and has no disqualification and is not unfit to take custody of the minor. The minor was with her parents from her birth. She was illegally removed from the custody of her natural guardian, the Respondent. On the other hand, the Appellant did not have sufficient means to look after the minor, as he has a minor daughter to look after. The family of the Appellant did not have sufficient means to meet with the expenses of the minor.
4.4. The Appellant, who is the maternal uncle filed his objection/written statement stating that the marital relationship between the Respondent and his spouse was not cordial. The Respondent was always behaving roughly with his wife. He was interested for a second son and no sooner they were blessed with the minor, the Respondent inhumanly treated his wife. As a result, the wife of the Respondent suffered from various diseases and died prematurely as Sum Hospital, Bhubaneswar. Although the wife of the Respondent was at Sum Hospital, Bhubaneswar, it was not informed to the Appellant or his family members. After getting information from other sources, the Appellant attended his sister at Sum Hospital and borne the entire expenses of her treatment. After the death of his sister, the Appellant lodged an FIR against the Respondent alleging negligence and cruelty towards his wife. At the Police Station, an agreement of understanding was executed wherein the Respondent undertook not to claim custody of the minor. It was also agreed that GUAP No.9 of 2023 Page 3 of 23 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 4 // the Respondent would not file any petition before the competent Court of law to claim custody of the minor. It was further alleged that the Respondent's father was old and ailing person of 72 years and his mother was of 66 years. The unmarried sister of the Respondent was mentally unsound. Thus, the Respondent was unable to take care of the minor for which out of his own volition, he executed an agreement at the Police Station, as aforesaid. It was also stated by the Appellant that he himself is a man of means and can maintain the minor along with his minor daughter. It is also claimed that welfare of the minor can be best achieved being with her maternal uncle, the Appellant. Hence, he prayed for dismissal of the petition filed by the Respondent claiming custody of the minor.
4.5 Learned Judge, Family Court allowed the application filed by the Respondent under Section 25 of the Act directing the Appellant to handover the custody of the minor to the Respondent within the period of one month from the date of the judgment.
5. It also appears that the Respondent has filed Execution Case No.6 of 2023 for implantation of the judgment, which is sub-judice before learned Judge, Family Court, Baripada. IA No.9 of 2023, has been filed in this Appeal enclosing copy of the order dated 3rd August, 2023 passed in aforesaid Execution Case, wherein, learned Judge, Family Court, Baripada directed the IIC, Baripada Town Police Station to rescue the minor from the custody of the Appellant following due procedure and handover her custody to the Respondent.
GUAP No.9 of 2023 Page 4 of 23 Signature Not Verified Digitally SignedSigned by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 5 //
6. Mr. Mishra, learned counsel for the Appellant submitted that learned Judge, Family Court committed patent error of law in adjudicating the application as one under Section 17 of the Act for appointment of a guardian, although it was filed under Section 25 of the Act for custody of the minor. The question of guardianship of the minor is distinct from custody of the minor as held in the case of Ather Hussain Vs. Syed Siraj Ahmed and others; (2010) 2 SCC 654. Though a father is the natural guardian in both Mohammedan Law as well as the Act, but learned Judge, Family Court unnecessarily delved into the question of guardianship of the minor. While adjudicating the matter, learned Judge, Family Court discussed the ingredients of Section 17 of the Act, which refers the matter to be considered by the Court in appointing guardian. The provision under Section 19 of the Act makes it clear that unless a father is found, in the opinion of the Court, to be unfit, he is the only person entitled to be appointed / declared as guardian of the minor. No such restriction is available in Section 25 of the Act while determining the custody of the minor. Two ingredients are to be satisfied to consider the custody of the minor; viz; firstly, the ward 'leaves' or is 'removed' from the custody of a guardian and secondly, if it is in the opinion of the Court, return of the ward to the custody of the guardian is required for his/her welfare. Thus, the welfare of the ward is to be borne in mind to determine his/her custody. Learned Judge, Family Court misdirected itself in considering the nature of the application made by the Respondent observing that once the father is found to be fit, the maternal uncle is not entitled to be custodian of the minor and directed to handover her custody to the Respondent.
GUAP No.9 of 2023 Page 5 of 23 Signature Not Verified Digitally SignedSigned by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 6 //
7. Emphasising that the welfare of the minor can be best achieved being in custody of the Appellant, Mr. Mishra relied upon the ratio in the case of the Anjali Kapoor (Smt.) Vs. Rajiv Baijal; (2009) 7 SCC 322, wherein, the Hon'ble Supreme Court referring to the case Walker Vs. Walker and Harrison; 1981 New Ze Recent Law 257, wherein, it is held as under:-
"Welfare is an all encompassing word. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child's own character, personality and talents."
7.1 Mr. Mishra, learned counsel for the Appellant also relied upon the following case laws to buttress his contention that welfare of the minor is the paramount consideration while determining his/her custody.
(i) Sheoli Hati Vs. Somnath Das; (2019) 7 SCC 490;
(ii) Abdulsattar Husen Kudachikar Vs. Shahina Abdulsattar Kudachikar; AIR 1996 Bom 134;
(iii) Rosy Jacob Vs. Jacob A. Chakramakkal; (1973) 1 SCC 840;
(iv) Nil Ratan Kundu and another Vs. Abhijit Kundu; (2008) 9 SCC 413;
8. In the instant case, the custody of a minor female child is in question. Hence, Mr. Mishra, learned counsel for the Appellant referred to Sections 352 and 353 of the Mulla's Mohammedan Law, which are stated hereunder:-
GUAP No.9 of 2023 Page 6 of 23 Signature Not Verified Digitally SignedSigned by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 7 // "Sec.352. Right of mother to custody of infant children.- The mother is entitled to the custody of (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father.
353. Right to female relations in default of mother.--Failing the mother, the custody of a boy under the age of seven years, and of a girl who has not attained puberty, belongs to the following female relatives in the order given below:--
1) mother's mother, how highsoever;
2) father's mother, how highsoever;
3) full sister;
4) uterine sister;
5) consanguine sister;
6) full sister's daughter;
7) uterine sister's daughter;
8) consanguine sister's daughter;
9) maternal aunt, in like order as sisters; and
10) paternal aunt, also in like order as sisters."
He, therefore, submitted that in absence of the mother, the custody of a girl who has not attained puberty belongs to the family and relatives as prescribed in Section 353 of the Mulla's Mohammedan Law. Section 353 of Mohammedan Law does not make any provision to give custody of a minor girl child to the father in absence of her mother. As such, he submitted that Respondent-father is not entitled to the custody of the minor under personal Law. In support of his submission, Mr. Mishra, learned counsel relied upon the case of Siddiq-Un-Nissa Bibi Vs. Nizam-Uddin Khan and ors; AIR 1932 All 215 in which it is held as under: -
"A question has been raised before us whether the right under the Mohamedan Law of the female relation of a minor girl under the age of puberty to the custody of the person of the girl is identical with the guardianship of the person of the minor or whether it is something different and distinct. The right to the GUAP No.9 of 2023 Page 7 of 23 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 8 // custody of such a minor vested in her female relations, is absolute and is subject to several conditions including the absence of residing at a distance from the father's place of residence and want of taking proper care of the child. It is also that the supervision of the child by the father continues in spite of the fact that she is under the care of her female relation, as the burden of providing maintenance for the child rests exclusively on the father."
He also relied upon the case of Ather Husain (supra), wherein, it is held as under: -
"42. .......In our opinion, as far as the question of custody is concerned, in the light of the aforementioned decisions, the personal law governing the minor girl dictates her maternal relatives, especially her maternal aunt, shall be given preference. ......."
In the case of Poolakkal Ayisakutty v. Parat Abdul Samad; AIR 2005 Ker 68 in which, it is held as under:-
"4. We are of the view when the question of the custody of the child is involved, the primary consideration which weigh with the Court is the welfare of the child. Legal position is well- settled by a catena of decisions of this Court as well as that of the Apex Court. Reference may be made to the decisions of the Apex Court ......... It is settled principle of law that custody orders, by their very nature, can never be final but a challenge should only be made if it is in the paramount interest of the child concerned. Custody of a minor is also a matter involving sentimental attachment. Such a matter is to be approached and tackled carefully. A balance has to be struck between the attachment and sentiments of the parties towards the minor children and the welfare of the minors which is of paramount importance. Principles exported by Personal Law and the provisions referred to hereinbefore cannot read in isolation and be divorced under the provisions of the Guardians and Wards Act. The overriding consideration is welfare of the child and the Personal Law would yield the provisions of the Guardians and Wards Act. ....."GUAP No.9 of 2023 Page 8 of 23 Signature Not Verified Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 9 // He further relied upon the case of J. Sadiq Batcha and another Vs. A. Mohamed Kasim and another; 2014 (1) CTC 459, wherein, it is held as under : -
"6. As rightly pointed out by the learned Senior Counsel, a close reading of Section 17 of the Act makes it clear that, while appointing or declaring the guardian of a minor, the Court shall be guided by what consistently with law to which the minor is subject. Sub-clause (2) of the Section further makes it clear that the Court shall give prime importance of the welfare of the minor by taking into account the age, sex and religion of the minor. Therefore, when the provision contained in the General Law is vividly clear that the Court, in such cases, shall apply the Law to which the minor is subject, in this case, the issue shall have to be dealt with in the light of the Mahomedan Law. Principles exported by Personal Law and the provisions contained therein cannot be read in isolation and be divorced under the provisions of the Guardian and Wards Act, for, the Personal Law would yield the provisions of the Guardian and Wards Act.
7. xx xx xx
8. Though Section-352 speaks about mother's Hizanat (custody) of the minor i.e., in the case of male child until he has completed the age of 7 and regarding female child till she attains puberty, in the present case, since the mother is no more, it is better to look into Section 353 which gives direct answer to the issue on hand. Section-353 contains a list of female relations in default of mother, and it says that failing mother, the custody of a girl who has not attained puberty, goes to the persons listed therein and the first person in the list is mother's mother, how highsoever. Therefore, when the minor is a tender-child, the custody given to the respondents in consonance with what is provided under Section 353 cannot be found fault with."
He, therefore, submitted that in view of the categorical pronouncements, the personal law, i.e., Mohammedan Law governing custody of minor cannot be read in isolation and divorced under the provisions of the Guardians and Wards Act, as the Personal Law would yield to the provisions of the Guardian and Wards Act keeping GUAP No.9 of 2023 Page 9 of 23 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 10 // in mind the welfare of the minor, which is the paramount consideration. Thus, the legal right of a party seeking custody of a minor cannot override the welfare of the minor. In the instant case, the Appellant-maternal uncle took custody of the minor when she was 7(seven) months old. At the time of filing of the petition for custody of the minor by the Respondent-Father, she was 3(three) and half years old. Thus, removal of the child from the custody of the Appellant would certainly affect her intellectual, psychological and physical growth, which cannot be said to be in the welfare of the child. The said principle is elaborated in the case of Ather Hussain (supra). Relying upon the case of Rosy Jacob (supra), Mr. Mishra, learned counsel further submitted that removal of custody of the minor girl from the female relation as per Section 353 of Mulla's Mohammedan Law was necessitated for her welfare. But learned Judge, Family Court adopted an erroneous approach in considering the fitness of the father/natural guardian to have her custody as a matter of right. The minor is in the custody of her maternal uncle since she was seven months old. She is accustomed to the environment and atmosphere where she is residing at present. Stability and consistency in the affairs and routines of a child plays a pivotal role in determining custody of the child. Any dislocation may cause emotional strain, which is not the object and spirit of Section 25 of the Act. Except advocating his legal right, the Respondent has not made out any case to take custody of the minor. Thus, it is prayed that the impugned judgment is not sustainable in the eye of law and is liable to be set aside. The minor should be allowed to stay with her maternal uncle, which is in the best interest and welfare of the child.
GUAP No.9 of 2023 Page 10 of 23 Signature Not Verified Digitally SignedSigned by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 11 //
9. Mr. Dash, learned counsel for the Respondent-father did not dispute the factual position as stated above. He, however, submitted that the Appellant-maternal uncle of the minor had never visited his sister (mother of the minor) when she was admitted in Sum Hospital, Bhubaneswar for her treatment. The Appellant in his cross- examination has also admitted the same. It was his submission that the minor since her birth was along with her sibling and parents till the death of her mother. On the next date of the death of her mother, she was forcibly removed by the Appellant from the custody of the Respondent-father with the assistance of Police. There is no allegation in the written statement filed by the Appellant that the minor was not looked after properly by the Respondent. There is also no disqualification of the Respondent making him unfit as per Section 19 of the Act to have the custody of the minor. Learned Family Court considering the principles of Hizanat (custody) and keeping in mind the principles enumerated in the Mohammedan Law held the petition under Section 25 of the Act filed at the behest of the Respondent- father as maintainable. He further answering Issue No.2 held that the Respondent-father is entitled to claim custody of the minor. He submitted that welfare of the child is paramount consideration to determine its custody. The Respondent resides with his parents, an unmarried sister and his minor son (sibling of the minor). Thus, welfare of the minor can be best achieved being in custody of the Respondent-father, who is also her natural guardian.
10. It is further submitted by Mr. Dash, learned counsel for the Respondent that learned counsel for the Appellant advanced an GUAP No.9 of 2023 Page 11 of 23 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 12 // argument that learned Judge, Family Court misconstrued the petition under Section 25 of the Act to be one for declaring the Respondent- father as the guardian of the minor. Such an argument would not be sustainable, inasmuch as, the question of guardianship of the minor has to be gone into to determine the custody of the minor in view of Section 25 of the Act. The instant case is squarely covered under the provisions of Section 25 of the Act. The child was forcibly removed from the custody of the natural guardian, namely, the Respondent when she was only seven months old. There is nothing on record to suggest that the Respondent is unfit to be the guardian of the minor. Considering the matter from any angle, it will be for the welfare of the minor to return to the custody of her natural guardian, namely, the Respondent. Section 352 of the Mulla's Mohammedan Law stipulates that a mother is entitled to the custody (Hizanat) of her male child until he has completed the age of seven years and of her female child until she attains puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father. In the instant case, mother of the minor though not divorced by the Respondent-father, but died untimely when the minor was in their custody. Thus, the Respondent-father is entitled to the custody of the child. Further, Section 353 of Mulla's Mohammedan Law stipulates that failing the mother, custody of a boy of seven years and a girl, who has not attained puberty, belong to the following female relatives more fully enumerated therein. The Appellant-maternal uncle is not amongst them. Thus, he is liable to return the custody of the minor under the personal Law to her father. It is more so in view of Section 355 of the GUAP No.9 of 2023 Page 12 of 23 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 13 // Mulla's Principles of Mohammedan Law, which includes father qua male paternal relations. In any case, personal Law is of no assistance to the Appellant, as he neither comes under the female nor male relations entitled for custody in deprivation of natural guardian.
11. A natural guardian would always act in the child's welfare unless otherwise proved. In absence of any material to the contrary available on record, there is no reason to deprive the minor from the love, affection, sentiment, emotion and congenial understanding of her own father, brother and grandparents as well as from growing up in the household to which she belongs. In support of his contention, Mr. Dash, learned counsel for the Respondent relied upon the case of Siddiq-un-Nissa Bibi Vs. Nizam-Uddin Khan and others; AIR 1932 All 215. He also relied upon the case of Rafiq Vs. Bashiran, reported in AIR 1963 Raj 239 and submitted that when the father of a Mohammedan minor girl is living and there is nothing to show that he is unfit to be the guardian he is entitled to retain custody of the minor as against the preferential right under the Mohammedan Law.
11.1 It is further submitted that no female relation of the minor was examined by the Appellant to show that they are really interested to retain the custody of the minor and act in the welfare of the minor. On the other hand, mother of the Respondent was examined on his behalf as PW-2, who categorically stated that she is interested to look after and take care of the minor. Admittedly, the Appellant is not entitled either under the Act or under the personal Law to retain the custody of the minor. No female member of his family was also examined to establish that they are really interested to retain custody GUAP No.9 of 2023 Page 13 of 23 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 14 // of the child and act for her welfare. Only because the minor is with her maternal uncle since she was seven months old and at present, she is more than three years old; that cannot be a ground to refuse the prayer to return the custody to her father.
12. Mr. Dash, learned counsel for the Respondent also relied upon the case of Rosy Jacob (supra) and submitted that undoubtedly 'guardianship' and 'custody' are two different components under Law. While 'guardian' means a person having care of the person to a minor or of his property or both, as per Section 4(2) of the Act; the 'custody' though not defined under the Act, in ordinary parlance means under whose care the minor resides. Custody does not only include the de facto but a constructive custody. Being the natural guardian, Act vests right of custody of the minor on the Respondent by virtue of Section 24 of the Act. In case of removal of ward/minor from the custody of a guardian, an application under Section 25 of the Act would be maintainable.
13. In one hand, none of the female members of the Appellant's family came forward to exhibit their interest to look after welfare of the minor; on the other, in the family of the Respondent-father two female members, namely, the mother as well as unmarried sister of the Respondent is available to take care of the minor girl. Mother of the Respondent, namely, PW-2 has also deposed before learned Judge, Family Court and expressed her keen interest to look after the welfare of the minor. By retaining the custody, the Appellant is depriving the minor from the love, affection, mental attachment of her father, sibling (elder brother), grandmother as well as other members of the GUAP No.9 of 2023 Page 14 of 23 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 15 // family in which she is born. Thus, learned Judge, Family Court has not committed any error in allowing the petition filed by the Respondent under Section 25 of the Act.
14. In response to the case laws cited by learned counsel for the Appellant, Mr. Dash, learned counsel for the Respondent submitted that in the case of Isar Ahmed Vs. Azazul Hussain Ahmad and another; 2019 SCC OnLine All 5315, the dispute was with regard to custody of the minor between her father and mother, wherein, father was denied custody holding that minor's welfare would not be served if the custody is given to its father. However, it has discussed the principle and adjudicated the issue of custody, which is exclusively and solely based on welfare of the minor. While determining the custody of a minor, the Court should at the first instance determine the guardianship of the minor applying the negative test, i.e., whether a person is unfit to be a guardian under Section 19(1)(b) of the Act. The Court while making such determination will be guided by the parameter set out under Section 17 (1) of the Act, viz., personal Law and circumstance like welfare of the minor as well as Section 17 (2) of the Act with regard to age, sex and religion of the minor, the character and capacity of the proposed guardian and its nearness of kin to the minor, the wishes, if any, of a deceased parent and any existing or previous relations of the proposed guardian with the minor or his property.
15. In the instant case, there is nothing on record to deny return of custody of the minor to the Respondent-father. As such, learned Judge, Family Court, Baripada has not committed any error in GUAP No.9 of 2023 Page 15 of 23 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 16 // allowing the petition under Section 25 of the Act. He, therefore, prays for dismissal of the Appeal being devoid of any merit.
16. On consideration of the submissions made by learned counsel for the parties and on perusal of the pleadings of the respective parties, the question crops up for consideration in this Appeal is.--
Whether the custody of the minor should continue with the Appellant and whether learned Judge, Family Court has committed any error in directing the Appellant to handover the custody of the minor to the Respondent?
17. It is not disputed that the parties are governed under the Mohammedan Law. Initially, the minor (minor girl) was with her parents from her birth. When she was only seven months old her mother (wife of the Respondent) died. Since then, she is in custody of the Appellant. At the time of filing of the petition under Section 25 of the Act, the minor was only three and half years old. Respondent being the father is the natural guardian of the minor. Appellant is her matrimonial uncle. The minor has also a sibling (minor son of the Respondent), who is residing with the Respondent since his birth. The Respondent-father has his parents, an unmarried sister living with him besides his minor son (sibling of the minor).
18. It is alleged in the petition under Section 25 of the Act that the minor was forcibly removed from the custody of the Respondent by the Appellant with the assistance of the Police just GUAP No.9 of 2023 Page 16 of 23 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 17 // on the next day of death of his wife. In the objection, it is alleged by the Appellant that the Respondent out of his own volition handed over custody of the minor to him and had also executed an agreement before the Police not to claim custody of the minor in future. It was also alleged that the Respondent agreed not to file any case before any Court of Law claiming custody of the minor in future. In the aforesaid backdrop, the issue as aforesaid has to be decided.
19. Learned Judge, Family Court discussing the pleadings of the parties and evidence available on record, held that the Respondent is entitled to the custody of the minor and directed the Appellant to hand over custody of the minor to the Respondent within one month from the date of the judgment impugned herein. In order to consider the entitlement of the parties to the custody of the minor, relevant provisions of the Act are to be carefully gone through. Section 25 of the Act deals with entitlement of the guardian to the custody of the ward. It provides that if a ward leaves or is removed from the custody of a guardian of his person, the Court if it is of the opinion that it will for the welfare of the ward to return to the custody of his guardian may make an order for his return. Section 25 of the Act further emphasizes that for the purpose of enforcing the order, the Court may cause the ward to be arrested and to be delivered to custody of the guardian. In the instant case, the minor was with the Respondent (guardian) and his wife from her birth. She was removed from the custody of the Respondent and was handed over to the Appellant when she was seven months old GUAP No.9 of 2023 Page 17 of 23 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 18 // only. Allegation of forcible removal of the minor from the custody of the Respondent-father and handing over her custody to the Appellant (maternal uncle) is of little significance in the instant case, as admittedly the minor was removed from custody of her guardian and was handed over to the Appellant. Admittedly, the Appellant has never been declared as guardian of the minor. Ordinarily, the guardian should be the custodian of the minor, unless the guardian is held to be unfit by any competent Court of Law to be appointed as guardian. No such declaration appears to have been made in respect of the Respondent. But in the instant case, the peculiarity is that the parties are governed under their personal Law, i.e., the Mohammedan Law. Section 352 of Mulla's principles of Mohammedan Law provides that a mother is entitled to the custody (Hizanat) of a minor male child until he completed the age of seven years and in respect of female minor child until she attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father. Thus, the provision makes it clear that in all cases, mother is the custodian of a male child until he has completed seven years and a female child until she attains puberty. In the instant case, the minor (female child) was with her parents till the mother died. The question of divorce of the mother of the minor by her father does not arise, as mother of the minor died in Sum Hospital, Bhubaneswar due to her illness. The intent and purport of Section 352 of Mulla's principles of Mohammedan Law indicates that in absence of mother, the father would be the guardian of the ward. But Section 353 of the said Law provides the GUAP No.9 of 2023 Page 18 of 23 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 19 // right to custody of a minor child to the female relations in default of mother. It provides as under:-
1) mother's mother, how highsoever;
2) father's mother, how highsoever;
3) full sister;
4) uterine sister;
5) consanguine sister;
6) full sister's daughter;
7) uterine sister's daughter;
8) consanguine sister's daughter;
9) maternal aunt, in like order as sisters; and
10) paternal aunt, also in like order as sisters."
Undoubtedly, the Appellant is not a female relation of the mother of the minor as enumerated in Section 352 of Mulla's Mohammedan Law. The Appellant in his objection, does not dispute that the minor is in his custody from the next date of death of her mother (Appellant's sister). As propounded by the aforesaid case laws, the principle for custody of a minor child under the personal Law shall not be read in isolation and divorced from the provisions of Guardians and Wards Act, which confers the Court a discretion to return the custody of a minor to his guardian, who leaves or removed from his custody in appropriate cases where Court thinks that exercise of such a discretion is necessary for welfare of the ward.
20. Thus, welfare of a child is the paramount consideration to determine the custody of the ward (minor child) including a female child.
21. In the case of Anjali Kapoor (supra), the Hon'ble Supreme Court referring to the observation made in the case of Walker Vs. GUAP No.9 of 2023 Page 19 of 23 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 20 // Walker and Harrison (supra) held that 'welfare' includes material welfare both in sense of adequacy of resources to provide a pleasant home and a comfortable standard of living. While considering the welfare of the ward, adequacy of care to ensure that good health and due personal pride should be given due weightage. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child's own character, personality and talents. Those aspects are to be given due weightage while considering the welfare of the child. There cannot be any doubt that the provisions of personal Law are supplemental to the substantive law in determining custody of the child. The provisions under the personal Law are to be read in harmony with the substantive Law, i.e., Guardians and Wards Act and in case any provision of personal Law is repugnant to the substantive law, the substantive Law would prevail and be guiding factor. In all cases, the entitlement of a party to the custody of the ward under any law yields to the welfare of the child. No doubt, the Respondent being the natural guardian is entitled under Law to claim custody of the minor. Further, the Appellant has not yet been declared as the guardian of the minor. But custody of a child presupposes constructive custody and not de facto custody. Although the Appellant in his written statement/objection to the petition under Section 25 of the Act has not specifically averred about his family members, but from the materials available on record, it appears that the Appellant has his wife, minor daughter and his parents living with him. Admittedly, none of the female members of the Appellant's family came forward GUAP No.9 of 2023 Page 20 of 23 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 21 // to adduce evidence to take care of the minor. On the other hand, mother of the Respondent was examined as PW-2 and categorically deposed that she is interested to look after and take care of the minor. It is borne out from the record that the Appellant was working as a medicine representative and let out a car on rent from which he was earning his livelihood. On the other hand, the Respondent has a mobile shop and has household properties at Baripada part of which is given on rent. The Respondent has also ancestral landed property at Kakatpur in the district of Puri from which a constant income was being generated. Thus, it appears that the minor will get a better care and protection being in the family of the Respondent.
22. An argument was advanced by learned counsel for the Appellant that the Respondent had executed an agreement in the Police Station not to claim custody of the minor. He also agreed not to file any case claiming custody of the minor. When it is alleged by the Appellant that the Respondent voluntarily handed over the custody of the minor to the Appellant on the next day of death of his wife (mother of the minor), it is not understood as to why an agreement was required to be executed that too in the Police Station. In any event, the agreement in question was not admitted in evidence before learned Judge, Family Court. Thus, no weightage can be given to such agreement, if any, executed between the Appellant and the Respondent. The minor has a sibling who was aged about five years old on the date of filing of the application under Section 25 of the Act. The Respondent has also his unmarried sister and parents living with him out of whom, mother of the GUAP No.9 of 2023 Page 21 of 23 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 22 // Respondent being examined as PW-2 expressed her interest to take care of the minor. No material was produced before learned Judge, Family Court except some bald pleadings to establish that welfare of the child cannot be achieved being in the family where she is born. The brother of the minor is also missing her company
23. It is not disputed that the Respondent is not unfit to be the guardian of the minor, as provided under Section 19 of the Act. Section 17 (2) of the Act provides that while considering the welfare of the minor, the Court shall have due regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of the kin of the minor, wishes of any of the deceased parents or any existing or previous relations of the proposed guardian and the minor or his property. Discussing the above learned Judge, Family Court, Baripada proceeded to adjudicate fitness of the Respondent-Father to be the guardian. Thereafter, it proceeded to adjudicate rival claims of the parties for the custody of the minor. Thus, in order to determine the custody of the minor learned Judge, Family Court was required to go into the question of guardianship of the minor while determining the issue of her custody. In the instant case, keeping in mind the age, sex and religion of the minor as well as the character and capacity of the Respondent to act as the guardian of the minor, it can be safely said that welfare of the minor can be best achieved if she is in the custody of the Respondent. It is more so because none of the female relations of the deceased wife, as available under Section 353 of GUAP No.9 of 2023 Page 22 of 23 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 30-Oct-2024 18:18:33 // 23 // Mulla's principles of Mohammedan Law, came forward to take care and custody of the child.
24. There cannot be any quarrel over the case laws cited by learned counsel for the parties. The case laws relied upon by learned counsels for the parties propound the general principles for consideration of custody of the minor. Thus, no further discussion of the case laws relied upon by learned counsel for the parties is required in the instant case. Keeping in mind the peculiarity in the facts and circumstances of the case and the materials available on record, together with discussions made above, I am of the firm opinion that learned Judge, Family Court, Bairpada has committed no error in directing the Appellant to handover custody of the minor to the Respondent.
25. Accordingly, the Appeal being devoid of any merit stands dismissed. However, in the facts and circumstances of the case there shall be no order as to costs.
Issue urgent certified copy of the judgment on proper application.
(K.R. Mohapatra) Judge High Court of Orissa, Cuttack Dated the 30th day of October, 2024/s.s.satapathy GUAP No.9 of 2023 Page 23 of 23