Madras High Court
M. Sarfudeen vs Ushaman Ali on 23 March, 2016
Author: V.M. Velumani
Bench: V.M. Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.03.2016
CORAM
THE HONOURABLE MS.JUSTICE V.M. VELUMANI
CMA.(MD).No.894 of 2015 and
M.P(MD).No.1 of 2015
1. M. Sarfudeen
2. S. Abdul Jabbar @ Settu
3. A. Ummal Kurshid : Appellants
Vs.
Ushaman Ali : Respondent
Prayer: The Civil Miscellaneous Appeal is filed under Section 47 of the
Guardian and Wards Act, 1890 against the order passed in GWOP.No.19 of 2014
on the file of the II Additional District Judge, Tirchirapalli, dated
30.04.2015.
!For Appellants : Mr. K. Pandimaharajan
^For Respondent : Mr. K.S. Vamsidhar
:ORDER
This Civil Miscellaneous Appeal is filed against order passed in GWOP.No.19 of 2014 on the file of the II Additional District Judge, Tirchirapalli, dated 30.04.2015.
2. The appellants are respondents and the respondent is petitioner in GWOP.No.19 of 2014.
3. The respondent filed said GWOP for custody of minor son Ashwaq. The first appellant is father in law of respondent and the second appellant is brother in law, son of first appellant, and the third appellant is wife of second appellant. The respondent is father and natural guardian of minor son.
4. The facts of the case are as follows:-
(a) The respondent married first appellant's daughter Jerina Begum on 10.04.2006 as per Islamic Customs and Rites. After marriage, they were living in respondent's house at Thiruverumbur, Trichy. In the said wedlock, minor Ashwaq was born on 21.10.2010. The respondent is Diploma Holder in chemical Engineering. The respondent got a job in abroad and left India due to his employment. The respondent's wife and son were living in his parents house at Thiruverumbur, Trichy.
(b) The respondent's wife was a normal person at the time of marriage and they had happy married life. While the respondent's wife was five months pregnant her mother died. Her father, first appellant herein married his wife's sister. The respondent and his wife came to know that the first appellant was having illicit relationship with his wife's sister, even during life time of his wife. This has caused mental depression to respondent's wife which continued even after birth of minor. The respondent got a job in Dubai on 11.05.2012. He took his wife and son to Dubai. At the beginning respondent's wife seemed to have got over her depression and seemed to be happy. Suddenly, she committed suicide on 03.04.2013. The respondent wanted to take his wife's body to India to bury her. He was making arrangements with the Police in Dubai. As it took some time he entrusted minor son to his wife's brother Haja Mydeen who was also working in Dubai at that time. He gave no objection for his brother Haja Mydeen to accompany his minor son to India. The respondent came to India with his wife's body on 10.04.2013. After completing burial he left for Dubai. He entrusted his minor son to his parents. The second appellant threatened the respondent's parents and forcibly took the minor. The respondent came back to India and requested the appellants 1 and 2 to hand over the minor to him. They refused and therefore, the common relatives and elders mediated and advised the appellants to hand over the minor to respondent. They did not hand over the minor as per advise of elders. The respondent gave a complaint to Inspector of Police, Tanjore, East Police Station. The respondent filed HCP No.173 of 2014 before this Court as Police authorities did not take any action. The second appellant wrongly claimed that the minor was handed over to him by respondent. This Court directed the parties to approach the proper forum for appropriate remedy. Hence, the respondent filed GWOP.No.19 of 2014.
5. According to the respondent, he is father and natural guardian of minor. He is well educated and is having a decent job with handsome income. He married again who is well educated possessing M.Sc., M.Phil., qualification. He has made arrangements to admit the minor child at Montfort (CBSE) school, Thiruvermbur. He is fit person to have the custody of minor. The first appellant married at his old age his wife's sister which was the reason for respondent's wife committing suicide. The appellants 2 and 3 are not well educated. The second appellant is member of fringe political out fit and he is not having any permanent job and he is not a man of good habits. It will not be in the interest of minor to be in the custody of appellants. The appellants are not financially well off. On the other hand, the respondent and his wife will provide the minor, fatherly and motherly love and affection and provide all needs of minor and he will also provide good education to minor. It will be in the best interest of minor to entrust his custody to respondent.
6. The appellants filed counter affidavit and denied all the allegations made by the respondent. According to the appellants, the respondent treated his wife with cruelty. He was demanding more dowry and cash. Even during the life time of respondent's wife, he did not take care for the welfare of minor and did not show any love and affection for the minor. It is not correct to state that the respondent's wife committed suicide due to death of her mother and marriage of her father to her mother's sister. Due to cruelty treatment by respondent she died in mysterious circumstances. The respondent abetted her suicide. The appellants were about to take criminal action against the respondent in Dubai. The respondent requested the appellants not to take any criminal action. He handed over the minor to the younger son of first appellant, brother of second appellant and agreed not to seek minor custody at any future date. He sworn to an affidavit to that effect. He also promised to return all the jewels given by first appellant and also cash given to the respondent. He failed to return the jewels and cash. When the appellants 1 and 2 demanded jewels and cash, the respondent has filed GWOP.
7. The respondent never shown love and affection to minor son. His wife died under mysterious circumstances. He has re-married. His second wife is a divorcee who abandoned her child through first marriage. She will not look after the minor with love and affection. On the other hand, she will treat the minor with cruelty. At present minor is brought up along with children of second appellant with love and affection by appellants. Therefore, prayed for dismissal of GWOP.
8. Before the Tribunal, the respondent examined himself as PW.1 and his second wife is examined as PW.2 and marked 14 documents as Exs.P1 to P14. The second appellant was examined as RW.1, brother of second respondent is examined as RW.2 and the Secretary of Jamath is examined as RW.3 and marked Exs.R1 to R12.
9. The learned Judge considering the pleadings, evidence and documents allowed the GWOP and directed the appellants to hand over the custody of the minor to the respondent within one week from the date of that order. Against that order dated 30.04.2015, the present CMA is filed.
10. The learned counsel for the appellants submitted that:-
(I) The order of the learned Judge is contrary to law, weight of evidence and against the interest of minor.
(ii) The learned Judge did not properly appreciate the evidence on record and passed order on presumption.
(iii) The mother of minor died under mysterious circumstances, the respondent failed to prove the allegation that she committed suicide due to depression caused as her father married her mother's sister. Having failed to prove the said allegation, the respondent is not entitled to custody of minor.
(iv) The learned Judge failed to appreciate sworn affidavit of respondent marked as Ex.R4, wherein the respondent handed over the custody of minor to RW.2, the younger brother of first appellant.
(v) The minor is being brought up and maintained by appellants. The minor is being brought up along with children of second appellant, whom he considers as his brothers / in borns. Minor is considering the second appellant as his father and the third appellant as mother. The learned Judge without considering these facts erred in ordering custody of minor to respondent.
(vi) The learned Judge failed to see that the respondent married PW.2 within a short time of death of minor's mother and PW.2 is not a fit person to look after the minor.
(vii) The second appellant has admitted the minor in Maxwealth Matriculation school, Tanjore and is providing good education and needs of minor.
(viii) The learned Judge failed to see that the respondent filed GWOP only after appellants issued notice to respondent demanding return of jewels of minor's mother.
(ix) The learned Judge failed to see that the respondent is working in abroad and his physical absence will not be in the interest of minor. PW.2 is a divorcee and she will not treat the minor with love and affection due to strained first marriage.
11. The respondent filed counter affidavit and denied all the allegations made against him and PW2. The respondent denied that his wife committed suicide due to his harassment. He reiterated his contention that due to depression as her father married her mother's sister she committed suicide. The appellants issued notice and lodged a complaint with the police, only after he filed GWOP. The appellants did not gift 100 sovereigns of gold to his wife and 20 sovereigns of gold jewels to him at the time of marriage. The respondent did not hand over the custody of minor only for the appellants not to give a complaint to the police younger brother in Dubai. On the other hand the respondent handed over the custody of minor in Dubai only for minors travel to India. The appellants are illegally having custody of minor. The respondent is holding a senior managerial position at Dubai and is entitled to have his family with him, previously minor and his mother / respondent's wife were staying with him at Dubai. The learned counsel for the respondent made the above contentions and reiterated the averments made in GWOP.
12. In support of his contention the learned counsel for the respondent relied on the following Judgments:-
(i) AIR 1983 Andhra Pradesh 106 (Mohammed Jameel Ahmed Ansari Vs. Ishrath Sanjeeda and others), wherein in paragraph No.13 it has been held as follows:-
13. We have understood the law on this aspect to be in the following terms: That children are normally expected in the custody of the legal guardians. Under Muslim law, after the age of 7 years it is the father who is entitled to the custody of the child, unless the Court holds on evidence, the father is not a fit person or that it is not conducive to the health whether physical or mental of the child. Ordinarily, the children are to be with the father.
(ii) AIR 1963 Rajasthan 239 (V 50 C 75) (1) Rafiq V. Smt. Bashiran and another), wherein in paragraph No. 4 it has been held as follows:-
4. There is nothing on record to show that father of the minor is unfit to be the guardian of her person. As was observed in B.N. Ganguly V. C.H. Sarkar, AIR 1961 Madh -Pra 173 there is a presumption that the parents will be able to exercise good care in the welfare of their children.
(iii) AIR 2005 Kerala 68 (Poolakkal Ayisakutty Vs. Parat Abdul Samad), wherein in paragraph Nos. 4 and 5 it has been held as follows:-
? 4. We are of the view when the question of the custody of the child is involved, the primary consideratioin which weigh with the Court is welfare of the child. Legal position is well-settled by a catena of decisions od this Curt as well as that of the Apex court. Reference may be made to the decisions of the Apex Court in Jai Prakash Khadria V. Shyam Sunder Agarwalla, (2006) 6 SCC 598 ; (AIR 2000 SC 2172) and R.V. Srinath Prasad V. Nandamuri Jayakrishna, 2001(4) SCC 71 ; (AIR 2001 SC 1056). 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 mater involving sentimental attachment. Such a matter is to be approached and tackled carefully. A balance has to 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. Several decisions were cited at the bar for and against. See: Rafiq V. Smit (Bashiran (AIR 1963 Raj 239);
Salamat Ali v. Smt.Majjo Begum (AIR 1985 A11 29); Mohammed Yunus v. Smt. Shamshad Bano (AIR 1985 All 217); Zynab Bi alias Bibijan v. Mohammad Ghouse Mohideen AIR 1952 Mad 284); Baby Sarojam v. S. Vijayakrishnan Nair (AIR 1992 Ker 277); Yusuf v. Sakkeena (1998 (2) Ker LT 573); Merlin Thomas v. C.S. Thomas, (2003) 1 Ker LJ 633; (AIR 2003 Ker 232) and Chakki v. Ayyappan (1988 (1) Ker LT 556).
5. The Court would always respect the sentiments of the grandmother. Child's mother has committed suicide. Father later remarried and has got children. Conduct of remarriage by the father of the child itself is not a ground to reject the prayer for custody. Welfare of the child is of paramount consideration. By giving due respect to the sentiments expressed by the grandfather, we are of the view, it is of the welfare of the child that the child be with the father.?
13. I have carefully perused the pleadings, evidence and the judgments relied on by the learned counsel for the respondent and arguments of learned counsel for parties.
14. The points for consideration are :-
(i) Whether the respondent is entitled to the custody of his minor son Ashwaq.
(ii) Whether the respondent is disqualified to have the custody of minor Ashwaq due to his marriage to PW2.
15. Points 1 and 2:
(a) The respondent is father and natural guardian of minor. The respondent after death of his wife, mother of minor in Dubai, handed over the custody of minor to his brother in law RW.2 to accompany minor to India from Dubai. After the respondent came to India and completing the burial of his wife he entrusted the custody of minor to his parents. According to the respondent, the second appellant threatened his parents and forcibly took custody of minor. After complaint to police and HCP filed before this Court, the respondent filed GWOP for custody of minor. The respondent is a chemical Engineer and is holding a Senior Managerial post at Dubai and earning handsome income. The respondent married PW.2 after the death of minor's mother. PW.2's Educational qualification is M.Sc., M.Phil,. Both respondent and PW.2 gave the evidence to the effect that it will be in the best interest of minor if they have custody of minor. The appellants alleged that PW.2 is a divorcee and abandoned her child begotten in the first marriage. She was cross examined in this regard and PW.2 denied the same.
The appellants have not produced any evidence to prove these allegations. Therefore, PW.2 is not disqualified to have the custody of minor along with respondent.
(b) The appellants have contended that minor's mother committed suicide due to cruelty of respondent and respondent did not show any love and affection even when minor's mother was alive. The appellants have not substantiated this allegation by any acceptable evidence. The respondent alleged that minor's mother became depressed and had hysteria due to her father's marriage at his old age viz., 70 years her mother's sister and due to that only she committed suicide. The respondent did not prove this allegation except the admitted fact that first appellant married his wife's sister. Therefore, both the appellants and the respondent have not proved their allegation with regard to reason for death of minor's mother.
(c) The appellants have contended that minor's mother died under mysterious circumstances and wanted to give a complaint to the police at Dubai. The respondent requested the appellants not to take any criminal action and agreed to return the jewels and cash gifted to his wife and himself and also handed over the custody of minor permanently to the appellants. He gave sworn affidavit Ex.R4 for handing over the custody of minor. The contention is not supported by evidence. A reading of Ex.R4 clearly reveals that the respondent gave no objection for minor being accompanied by his brother in law, RW.2 to India. This affidavit is given only to comply the procedure, when a minor travels in airlines without being accompanied by his parents. Ex.R4 cannot by any stretch of imagination can be considered as respondent permanently gave up his right to have the custody of minor as father and natural guardian of minor. The respondent has proved that he got admission for minor in Montfort (CBSE) school, Thiruvermur. He has given complaint to the police for custody of minor and also filed HCP before this Court. Finally he filed the GWOP. This Court reveals that the respondent is pursuing his right to have the custody of minor.
(d) As far as the question whether the respondent is fit person to have the custody of minor or whether it will not be in the interest of minor to order custody of minor to respondent is concerned, the appellants have not produced any evidence to show that the respondent is unfit to have the custody of minor. The appellants have not proved their allegations that the respondent treated his wife with cruelty and did not love the minor and did not show affection to him.
(e) The contention of the appellants that the respondent gave up his right to custody of minor, as per Ex.R4 also not correct. The appellants have not proved that PW.2 / wife of the respondent is a divorcee and abandoned her child through first marriage. The appellants 2 and 3 have not denied that they are educated only up to Secondary school level and the second appellant is a member of fringe political party and that the second appellant is not not having any permanent job.
(f) On the other hand the respondent and his wife PW.2 are highly educated and the respondent is holding senior managerial post entitled to have his family with him in Dubai. It is well settled that re-marriage of father of minor will not dis entitle to the custody of minor. The appellants have not proved that it will not be in the interest of minor to hand over the custody of minor to respondent and that the respondent is unfit to have the custody of minor.
16. Taking in to consideration that the respondent is father and natural guardian of minor, that respondent and his wife PW.2 are highly educated and the respondent is holding senior managerial post drawing handsome salary and the minor must have fatherly love and affection it will be in the best interest of minor to give custody of minor to respondent. The Judgements relied on by the counsel for the respondent are squarely applicable to the facts of the present case.
17. The learned Judge considered all the facts and materials on record in proper perspective and has given valid and cogent reasons for allowing the GWOP. Further the learned Judge has exercised his power conferred on him properly and there is no irregularity or illegality warranting interference by this Court.
18. In the result, the Civil Miscellaneous Appeal is dismissed confirming the order dated 30.04.2015 made in GWOP.No.19 of 2014 on the file of the learned II Additional District Judge, (FAC), Tiruchirappalli. No costs. Consequently, connected Miscellaneous Petition is closed.
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