Madras High Court
A.S.M.Abudeen@Jainulabudeen vs Shakila Banu on 21 February, 2014
Author: R.Mahadevan
Bench: R.Mahadevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 21.2.2014. CORAM THE HON'BLE MR.JUSTICE R.MAHADEVAN C.M.A.No.409 of 2013 and M.P.No.1 of 2013 A.S.M.Abudeen@Jainulabudeen Appellant vs. Shakila Banu Respondent Civil Miscellaneous Appeal against the order passed in G.W.O.P.No.68 of 2011 dated 18.12.2012 on the file of the District Judge, Nagapattinam. For appellant : Mr.S.Ganesh For respondent : Mr.S.Sounthar JUDGMENT
This Civil Miscellaneous Appeal has been filed by the father challenging the Order in Guardian and Wardship Original Petition in G.W.O.P No 68 of 2011 dated 18.12.2012 passed by the District Judge, Nagapattinam, granting custody of two minor sons to the mother while granting custody of one minor son to the father.
2. The Original petition was filed by the wife seeking the custody of all her minor sons alleging that the appellant herein, being her husband, is not fit and eligible to have the custody of their children as he had failed to take proper care of them, failed to provide proper education to the children and is involved in many criminal cases.
3. Per contra, the appellant claimed that the respondent had no income of her of own and was depending on contributions from her two brothers and therefore, as a father, he was entitled to have the custody of the children as per section 357 of the Mohammedan Law.
4. During the pendency of the Original Petition, the second Minor son has sought the asylum of his mother, the respondent and the custody of the 3rd Minor son was vested with the respondent based on the directions of this Court in H.C.P No.1638 of 2012.
5. After considering the oral as well as documentary evidence, the Court below has partly allowed the petition vesting the custody of the second and Third Minor sons with the respondent and the eldest Minor son to the appellant. Aggrieved by the same, the appeal has been filed by the father.
6. The Learned Counsel for the Appellant assailed the order of the Trial Court contending that the order has been passed without considering the personal law of the parties and without appreciating that the respondent had no income of her own and that she was incapable of providing good education to the children as she has to depend on her brothers every time. The counsel further contended that the respondent has abandoned the matrimonial home at the instigation of her mother without any valid reasons. The counsel further contested that the education of the children were not stopped for any mala fide reasons but only to shift the children to provide a better education in line with Islamic background and also pointed out the fact that the eldest son was now being educated in one such school in Chennai. The counsel has also relied upon the judgments reported in MOHAMMED JAMEEL AHMED ANSARI v. ISHRATH SAJEEDA AND OTHERS (AIR 1983 AP 106), NARBADA v. SITA RAM (AIR 1998 RAJASTHAN 113) and SELVAN,J. v. N.PUNIDHA (2007 (4) CTC 566) and contended that when the respondent has no source of income and when the appellant was not declared unfit, the custody of the children can be granted to the appellant and the respondent can be granted visitation rights. The counsel has also contested that the Minor childrens statement ought not have been relied upon by the Trial Court in view of a specific provision in the personal law.
7. In reply, the Learned Counsel for the respondent has buttressed the order of the Trial Court contending that the welfare of the child is more important than other aspects and the Trial Court, after appreciating the evidence in the right perspective, has granted the custody of the second and third sons to the respondent. The counsel further contended that the appellant has no respect for the courts and despite the award of interim custody, the respondent failed to hand over the custody of the third son and only by an order passed by this Court in HCP, the third son was handed over during the pendency of the original petition and therefore the custody of the children cannot be vested with the appellant. The counsel further contended that the appellant was involved in many criminal activities and many criminal cases were pending against him. The counsel has placed reliance upon the judgments reported in MOHD. YUNUS v. SMT.SHAMSHAD BANO (AIR 1985 ALL 217) and GAURAV NAGPAL V. SUMEDHA NAGPAL ((2009) 1 SCC 42) in support of his above contentions and sought for dismissal of the appeal.
8. Heard both sides.
9. The Trial court after considering the evidence of the second and third minor sons that they were willing only to stay with their mother, confirmed their custody to the respondent and considering the fact that the eldest son was studying in a school at Chennai, has vested the custody of the eldest son to the appellant.
10. The main contention of the appellant is that the respondent has no income of her own and on the contrary, the appellant had enough source of income to educate the children. Further as per the personal law, the father alone is entitled to have the custody of sons who have crossed 7 years of age. In the instant case, since all the sons have crossed 7 years, the custody must have been granted to the appellant.
11. In the Judgment reported in AIR 1983 AP 106, relied upon by the counsel for the appellant, on evidence, the Andhra Pradesh High Court found that though the custody of the children was with the mother, the mother had entrusted the children with her parents and further found that the father was not unfit to have custody and hence granted the custody of the child to the father.
12. In the judgment, reported in AIR 1998 RAJASTHAN 113, the custody of the younger son was granted to the father, after finding that the mother had left the son with the custody of some other person and that she had no income of her own in contra to the fact that the father was adequately served to take care of the child.
13. In yet another judgment reported in 2007 (4) CTC 566 relied upon by the counsel for the appellant, this Court, emphasizing the Doctrine of Best Interest of Child supplemented by Doctrine of Least detrimental alternative, has laid down certain tests to be considered in child custody cases and ultimately, on facts, held that the father was entitled to the custody of the children. The said decision of the learned Single Judge was taken up in appeal and the appeal in O.S.A.No.156 of 2008 was allowed by a Division Bench of this Court by judgment dated 20.8.2009.
14. This court, upon evaluation of the oral and the documentary evidence, is of the view that the above cases are not applicable to the case on hand. On facts, in the present case, it is an admitted fact that the appellant has some criminal cases pending against him. Even though he might be having enough income to meet the educational expenses of the three children, that alone cannot be a criteria for handing over the custody of the children to the appellant.
15. In the judgment reported in AIR 1985 ALL 217, the Allahabad High Court, following the ratio laid down by the Apex Court in ROSY JACOB v. JACOB A. CHAKRANIAKKAL (AIR 1973 SC 2090) and DR.MRS.VEENA KAPOOR v. VERINDER KUMAR KAPOOR (AIR 1982 SC 792), stressed upon the need to apply the personal law in harmony with the object of the Guardian and Wardship Act, namely the welfare of the child.
16. In the Judgment reported in (2009) 1 SCC 42, the Honble Apex Court has held as follows:
" 43. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the `welfare of the child' and not rights of the parents under a statute for the time being in force.
...
47. Again, in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544, this Court reiterated that the only consideration of the Court in deciding the question of custody of minor should be the welfare and interest of the minor. And it is the special duty and responsibility of the Court. Mature thinking is indeed necessary in such situation to decide what will enure to the benefit and welfare of the child.
48. Merely because there is no defect in his personal care and his attachment for his children--which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.
49. In Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698, this Court held that Section 6 of the Act constitutes father as a natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. [See also Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 and Chandrakala Menon v. Vipin Menon (Capt.), (1993) 2 SCC 6].
50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli case ((2008) 7 SCC 673), 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 than the others.
51. The word `welfare' used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases.
52. The trump card in the appellant's argument is that the child is living since long with the father. The argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He cannot be a beneficiary of his own wrongs. The High Court has referred to these aspects in detail in the impugned judgments.
53. The conclusions arrived at and reasons indicated by the High Court to grant custody to the mother do not in our view suffer from any infirmity. It is true that taking the child out of the father's custody may cause some problems, but that is bound to be neutralised.
54. Learned counsel for the appellant submitted that the child's education is of paramount importance and the father is spending good amount of money for providing him excellent education, and the mother does not have the financial affluence as the appellant claims to have. But that can be taken care of if father is asked to pay the educational expenses of the child in addition to the maintenance being paid to the respondent. But at the same time it cannot be overlooked that the father needs to have visitation rights of the child."
17. The Apex Court has clearly laid down that the welfare of the child is paramount than the personal laws and that the moral and ethical welfare of the child is equally important like physical welfare. The Apex Court, considering that the mother had no sufficient income to educate the child, observed that the father can very well be directed to meet out the educational expenses of the child.
18. On facts, in this case, the appellant has flouted the interim orders of the Trial Court and despite repeated applications and contempt petitions, interim custody of the third son was not handed over. It can be seen that only based on the orders of this Court in HCP, the custody was handed over to the respondent. As held by the Apex Court in the judgment cited supra, a person cannot be a beneficiary of his own wrong doings. The attitude of the appellant only shows that the custody of the children, if vested with him, would only detriment the moral ethics of the children.
19. From the order of the Trial Court, it is evident that the Trial Court has adopted the principles emulating from the Doctrine of best interest of child and Doctrine of Least detrimental alternative for granting the custody of the second and third son to the respondent. This court also finds from the evidence of the minor children that they are more attached to their mother. Further, even though the mother has no source of income of her own, it is evident that one of her brothers is employed in Singapore and that her brothers have no reservations for contributing towards education of the children. The argument of the counsel for the appellant that one of the brothers of the respondent was involved in a criminal case is of no significance as that was a case under the Tamil Nadu Gaming (Prohibition) Act.
20. On the contrary, the appellant himself has admitted that he has two criminal cases pending against him in the evidence. From the evidence, it is also clear that the education of the children suffered a setback for one year because of the poor planning of the appellant, though his intentions might not have been mala fide. The appellant has also admitted that the respondent knows tailoring and has a machine of her own which is also clear from the evidence of PW1. Unarguably, money is not the only criteria for deciding the custody of the child. The welfare of the child is of paramount importance than the statutory laws.
21. It is settled law that, in cases relating to custody of children, the statements of the children, if mature enough to understand the implications of such statement, are to be considered. In the present case, all the three children have expressed their willingness to live with their mother. The eldest son, in fact, has deposed that he wants to live with both of them. Therefore, this court does not find any irregularity in the order of the Trial Court and no interference is called for. However, considering that the appellant, being a father, would be interested in the welfare of the children, he is entitled to visitation rights. Therefore, the appellant is entitled to visit the two minor children twice a month, i.e., once in 15 days at the State Legal Aid Center in Nagapatinam. The appellant is permitted to be with the children from 10.30 am to 4.30 pm and if the children want, he can also take them outside but shall return by 4.30 pm. Since the respondent is the mother of the eldest son, the appellant, while visiting the younger minor sons, shall take the eldest son along with him so as to enable the respondent to meet him during the above said period. Even though all the attempts made earlier by this Court for amicable settlement turned futile, the visitation rights granted to both parties may bring about a change in their attitudes towards each other and can facilitate reunion in the interest of the children.
With the above modification, the CMA is disposed of. No costs. The connected miscellaneous petition is closed.
21.2.2014.
Index: Yes.
Internet: Yes.
ssk.
To
1. The District Judge, Nagapattinam.
2. The Section Officer, V.R. Section, High Court, Madras.
R.MAHADEVAN, J.
Ssk.
JUDGMENT IN C.M.A.No.409 of 2013 Delivered on 21.2.2014.