Rajasthan High Court - Jodhpur
Ishaq Mohd vs Mohd. Imran on 27 February, 2020
Equivalent citations: AIR 2020 RAJASTHAN 106, AIRONLINE 2020 RAJ 358
Bench: Sangeet Lodha, Pushpendra Singh Bhati
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 2152/2019
1. Shri Ishaq Mohd. S/o Shri Shafi Mohd., Aged About 40
Years, B/c Musalman (Hela), R/o 410 Kanji Ka Hata,
Kanod Ki Haveli, Udaipur (Raj.).
2. Smt. Shameem Bano W/o Shri Ishaq Mohd., Aged About
36 Years, B/c Musalman (Hela), R/o 410, Kanji Ka Hata,
Kanod Ki Haveli, Udaipur (Raj.).
----Appellants/Applicants
Versus
1. Shri Mohd. Imran S/o Shri Chhotu Khan @ Chachi Bhai,
Aged About 28 Years, B/c Musalman (Hela), R/o 172,
Kanod Ki Haveli, Kanji Ka Hata Udaipur (Raj.).
2. Shri Chhotu Khan @ Chachi Bhai S/o Shri Anarji Hela,
Aged About 57 Years, B/c Musalman (Hela), R/o 172,
Kanod Ki Haveli, Kanji Ka Hata Udaipur (Raj.).
3. Smt. Salma Bano W/o Shri Chhotu Khan @ Chachi Bhai,
Aged About 51 Years, B/c Musalman (Hela), R/o 172,
Kanod Ki Haveli, Kanji Ka Hata Udaipur (Raj.).
----Respondents/Non-applicants
For Appellant(s) : Mr. Khet Singh Rajpurohit
For Respondent(s) : Mr. Shambhoo Singh Rathore with
Mr. Bharat Singh Rathore
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order 27/02/2020 Per Hon'ble Dr. Pushpendra Singh Bhati, J.
1. This misc. appeal under Section 47 of the Guardians and Wards Act, 1890 read with Section 19 of the Family Courts Act, 1984 has been preferred claiming the following relief: (Downloaded on 05/03/2020 at 08:21:32 PM)
(2 of 10) [CMA-2152/2019] "It is, therefore, most humbly prayed that this appeal may kindly be allowed and the order dated 01.07.2019 passed by the learned Family Court, Udaipur to the extent of rejection of custody to the appellants, may kindly be set aside and the application filed by the appellants under Section 25 of the Guardian and Wards Act may kindly be allowed in toto and the respondents may kindly be directed to hand over the custody of Master Mohd. Sultan to the appellants forthwith. Any other appropriate order which the Hon'ble Court deems fit and favourable to the welfare of the wards may kindly be passed in favour of the appellants."
2. Brief facts of this case, as noticed by this Court, are that the appellants/applicants are grandfather and grandmother (maternal), and respondent No.1/non-applicant is father of the child and the respondents No.2 and 3/non-applicants are grandfather and grandmother (paternal). The current custody of the child, namely, Master Mohd. Sultan is with the respondents/non-applicants, and the same is being sought by the appellants/applicants.
3. Smt. Nargis Bano daughter of the appellants got married to respondent No.1-Mohd. Imran on 16.05.2014 and a male child, Master Mohd. Sultan was born on 10.02.2015. The allegation is that under undue harassment caused by the respondents, Smt. Nargis Bano committed suicide on 24.08.2016, resulting into lodging of an FIR at Police Station, Ghantaghar, Udaipur. Thereafter, the police, after due investigation, filed a charge-sheet against the respondents for the offences under (Downloaded on 05/03/2020 at 08:21:32 PM) (3 of 10) [CMA-2152/2019] Sections 498A, 304B and 302/34 of the Indian Penal Code, and accordingly, the trial commenced.
4. Mr. Khet Singh Rajpurohit, learned counsel for the appellants/applicants submits that a compromise had happened between the parties during the course of criminal trial vide agreement dated 17.05.2017, in which it was agreed that the custody of Master Mohd. Sultan was to remain with the appellants/applicants, as they assured proper care of education, welfare and future development of the child. Such compromise, as per learned counsel for the appellants/applicants, also resulted into acquittal of the respondent No.1 in the criminal case by the Court of learned Additional District Judge (Women Atrocities), Udaipur.
5. Learned counsel for the appellants/applicants further submits that thereafter breaching the aforementioned compromise, custody of Master Mohd. Sultan was forcibly taken away by the respondents and the same resulted into filing of complaint by the appellants/applicants under Section 97 of the Code of Criminal Procedure before the Additional District Magistrate (City), Udaipur, wherein the Additional District Magistrate observed that since the matter pertained to the custody of the ward, therefore, the said forum has no jurisdiction and the appellants/applicants were directed to approach the appropriate forum. Thus subsequently, the application in question was moved under Section 25 of the Guardians and Wards Act by the appellants/applicants before the learned Family Court, Udaipur seeking custody of the child, Master Mohd. Sultan. However, the (Downloaded on 05/03/2020 at 08:21:32 PM) (4 of 10) [CMA-2152/2019] said application, to the extent of handing over of custody of the child to the appellants/applicants, was rejected vide the impugned order dated 01.07.2019.
6. Learned counsel for the appellants/applicants also submits that the paramount welfare of the child is with the maternal grandparents, as the education, welfare and future development of Master Mohd. Sultan would be taken care of in their custody in a better way.
7. Learned counsel for the appellants/applicants further submits that the conduct of the non-applicant/respondent No.1- husband causing harassment to Smt.Nargis Bano resulted into her death by committing suicide, but still the maternal grandparents/appellants have compromised the issue only on the count that Master Mohd. Sultan would remain in their custody, thereby his education, welfare and future development shall be appropriately taken care of.
8. Learned counsel for the appellants/applicants also seriously apprehends remarriage to be solemnized by respondent No.1/non-applicant, which would lead to neglect of the child, Master Mohd. Sultan.
9. Learned counsel for the appellants/applicants relied upon the judgment rendered in Khatija Begum Vs. Gulam Dastagir, reported in AIR 1976 AP 128, relevant portion of which reads as under:-
"11. But it does not follow that the appellant cannot be permitted to retain the custody of the minor, which is the alternative prayer in the petition as amended. Under Hanafi School of Mohammedan Law, to which (Downloaded on 05/03/2020 at 08:21:32 PM) (5 of 10) [CMA-2152/2019] the parties belong, the mother is entitled to the custody (Hizanath) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. In this case, the minor is a female child who has not attained puberty as she is only six years old even today. In the absence of the mother, the custody of such a child belongs to the mother's mother, namely, the appellant herein. There can be no doubt, therefore, under the personal law of the parties, the appellant is entitled to the custody of the minor and not the father.
Thus, the position under Mohammedan Law is while the father is the guardian of the minor, the custody of the minor should be with the grand-mother in the present case as the minor is a female child who has not attained puberty. It was however, contended that Section 19 of the Guardians and Wards Act expressly provides that no order appointing or declaring a guardian should be made for the person of a minor whose father is living and reliance was placed upon the decision of the Privy Council in Mrs. Annie Besant v. G. Narayaniah (AIR 1914 PC 41) in which it was observed that no order declaring a guardian can be by reason of Section 19 of the Guardians and Wards Act be made during the lifetime of the father unless in the opinion of the court he is unfit to be their guardian.
The section as well as the decision referred to above deal only with the case of appointment of a guardian. The section does not prohibit the court from dealing with the custody of the minor. The proper way in which Section 19 can be reconciled with the personal law of the parties concerned is to hold that while the father should be the guardian of the minor, the custody should be with the grand-mother. As pointed out by Mulla in 'Principles of Mohammedan Law' sixteenth edition at page 325 the father is the primary and natural guardian of his minor children and the right of custody of the mother and the female relations is subject to the supervision of the father which he is entitled to exercise by virtue of his guardianship. The right of Hizanat does not carry with it all the powers which a guardian of the person of a minor has under the Guardians and Wards Act, 1890."(Downloaded on 05/03/2020 at 08:21:32 PM)
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10. Learned counsel for the appellants/applicants also placed reliance on the precedent law laid down by the Hon'ble Supreme Court in Athar Hussain Vs. Syed Siraj Ahmed & Ors., reported in (2010) 2 SCC 654, relevant portion of which reads as under:-
"30. Reasons are as follows: Section 12 of the Act empowers courts to "make such order for the temporary custody and protection of the person or property of the minor as it thinks proper". (emphasis supplied) In matters of custody, as well settled by judicial precedents, the welfare of the children is the sole and single yardstick by which the court shall assess the comparative merit of the parties contesting for the custody. Therefore, while deciding the question of interim custody, we must be guided by the welfare of the children since Section 12 empowers the court to make any order as it deems proper.
31. We are mindful of the fact that, as far as the matter of guardianship is concerned, the prima facie case lies in favour of the father as under Section 19 of the Guardians and Wards Act, unless the father is not fit to be a guardian, the court has no jurisdiction to appoint another guardian. It is also true that the respondents, despite the voluminous allegations levelled against the appellant have not been able to prove that he is not fit to take care of the minor children, nor has the Family Court or the High Court found him so. However, the question of custody is different from the question of guardianship. Father can continue to be the natural guardian of the children; however, the considerations pertaining to the welfare of the child may indicate lawful custody with another friend or relative as serving his/her interest better.
32. In Rosy Jacob v. Jacob A. Chakramakkal [(1973) 1 SCC 840 : (1973) 3 SCR 918] , keeping in mind the distinction between right to be appointed as a guardian and the right to claim custody of the minor child, this Court held so in the following oft quoted words: (SCC pp. 854-55, para 15) "15. ... Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of (Downloaded on 05/03/2020 at 08:21:32 PM) (7 of 10) [CMA-2152/2019] the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who, in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them."
33. In Siddiqunnisa Bibi v. Nizamuddin Khan [AIR 1932 All 215] , which was a case concerning the right to custody under the Mohammedan Law, the Court held: (AIR p. 218) "A question has been raised before us whether the right under the Mahomedan 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 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 clear 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."
34. Thus the question of guardianship can be independent of and distinct from that of custody in the facts and circumstances of each case.
41. However, the High Court of Rajasthan held that in the light of Section 19 which bars the court from appointing a guardian when the father of the minor is alive and not unfit, the Court could not appoint any maternal relative as a guardian, even though the personal law of the minor might give preferential custody in her favour. As is evident, the aforementioned decision concerned appointment of a guardian. No doubt, unless the father is proven to be unfit, the application for guardianship filed by another person cannot be entertained. However, we have already seen that the question of custody was distinct from that of guardianship. As far as matters of custody are concerned, the court is not bound by the bar envisaged under Section 19 of the Act."
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11. Learned counsel for the appellants/applicants thus, tried to make a fine distinction between the guardianship and the right to custody, by taking the issue of right to custody tilting towards paramount welfare of the child, which is appreciable in terms of jurisprudential distinction.
12. Mr. Shambhoo Singh Rathore appearing with Mr. Bharat Singh Rathore, learned counsel appearing for the respondents/non-applicants however, submits that the natural guardian of the child is his father, and just because there were certain allegations, which could not even be proved before the competent court, the father cannot be denied custody of his own child. As per learned counsel for the respondents, the allegations levelled by the appellants/applicants are mere apprehensions and cannot be made basis for determining the custody of the child in the perspective of Section 25 of the Guardians and Wards Act.
13. Learned counsel for the respondents/non-applicants also submits that there is nothing on record, which could suggest any conduct on the part of appellants, while being custodian of the child, detrimental to the education, welfare and future development of the child.
14. After hearing learned counsel for the parties as well as perusing the record of the case alongwith the precedent laws cited at the Bar, this Court is of the opinion that the fundamental rule shall be the paramount welfare of the child, and unless there is something, which is pointed out, in no uncertain terms, making any impact upon the welfare of the child in question, the prayer (Downloaded on 05/03/2020 at 08:21:32 PM) (9 of 10) [CMA-2152/2019] regarding handing over of custody of the child to his maternal grandparents, cannot be accepted.
15. The precedent law laid down in the judgment rendered in Khatija Begum (supra) was in specific reference to the custody of a female child, who, at the relevant time, had not attained puberty; whereas the present case pertains to the custody of a male child, and this Court is having no doubt that even under the Mohammedan Law, father is the natural guardian. There is no material on record, which could suggest any ill- treatment being meted out or to be meted out to the child, while being in custody of his father or paternal grandparents.
16. This Court is further of the opinion that as long as the natural guardian is surviving and there is nothing to pin-point any deficit in the paramount welfare of the child, there is no reason why the natural guardian, father, like in the present case, can be denied the custody of his own child, particularly only on the count that some apprehensions have been raised, that too, without any substantial proof.
17. This Court finds that there is nothing on record to indicate even a minor default, on the part of the father or the paternal grandparents, towards the child, and therefore, there is no reason to disbelieve that they shall be good guardians as well as good custodians. Moreover, the learned court below has taken care of the eventuality that in case the father remarries or any such circumstances arise where the education, welfare and future development of the child seems to be in jeopardy, the (Downloaded on 05/03/2020 at 08:21:32 PM) (10 of 10) [CMA-2152/2019] appellants/applicants shall always have liberty to move to the court again seeking custody of the child in question.
18. In light of the aforesaid observations, no interference in the impugned order passed by the learned court below is called for.
19. Consequently, the present appeal is dismissed. Record of the learned court below be sent back forthwith. (DR.PUSHPENDRA SINGH BHATI),J (SANGEET LODHA),J 66-SKant/-
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