Telangana High Court
Mubeena Gazala Fatima vs Mohammed Munawar Sulthan Khan on 13 December, 2023
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P. SREE SUDHA
FAMILY COURT APPEAL Nos.163 AND 174 OF 2023
COMMON JUDGMENT:(Per Hon'ble Sri Justice K. Lakshman) Lis involved in both the appeals and the parties are one and the same. Therefore, both the appeals being heard together and decided by way of this common order.
2. Heard Sri Mohd.Azhar, learned counsel for the appellant/wife in FCA No.163 of 2023 and respondent-wife in FCA No.174 of 2023; Mr. T.Bala Mohan Reddy, learned counsel representing Ms. K.Ramya, learned counsel for respondent/husband in FCA No.163 of 2023 and the appellant/husband in FCA No.174 of 2023.
(For sake of convenience, the parties herein are referred to as they are arrayed in FCA No.163 of 2023).
3. FCA No.163 of 2023 is filed by the appellant/wife being aggrieved and dissatisfied with the order dated 01.05.2023 passed in OP No.262 of 2022 by the I Additional Family Court at Hyderabad, insofar as declaring custody of 1st and 2nd children and appointing husband as guardian whereas, FCA No.174 of 2023 is filed by the respondent/husband against the same order.
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4. Facts:
i. The marriage of the appellant/wife with the respondent/ husband was performed on 05.01.2007 as per Muslim rites and customs.
ii. It is an arranged marriage.
iii. Thereafter, they left for USA. They blessed with three children.
iv. The first child 'Muskan Fatima' was born on 10.08.2008 in India, aged about 15 years and pursuing her 11th Standard in USA at present; Second child 'Mohammed Mujeeb Khan' was born on 07.12.2009 in USA, aged about 14 years and pursuing 9th Standard in USA at present and third child was born on 10.10.2012 born USA, aged about 11 years and pursuing 5th Standard at St.Georges Grammer School, Abids, Hyderabad. v. The marriage of the parties was registered on 30.08.2010 vide marriage certificate Sl.No.001112, dated 30.08.2010. Wife is a school Teacher and husband is a Software Engineer.3
vi. The parents of the wife are residing in India. vii. Thereafter, matrimonial disputes arose between them. viii. They have obtained divorce certificate vide Sl.No.001650 dated 24.11.2018 issued by the Telangana Wakf Board. However, husband filed O.P.No.1743 of 2022 to declare the said certificate as null and void and the same is pending.
ix. Wife came to India along with three minor children on 09.02.2019.
x. According to the husband, she came to India in 2018 itself.
xi. She has also lodged a complaint with the Women Police Station, South Zone, who in turn, registered a case in Cr.No.42 of 2021 for the offences punishable under Sections 498-A and 506 of IPC and sections 3 and 4 of the Dowry Prohibition Act.
xii. On completion of investigation, the Investigating Officer laid charge sheet and the same was taken on file vide C.C.No.7084 of 2022. The same is pending on the file of 4 the learned V Additional Chief Metropolitan Magistrate, Nampally.
xiii. Wife initially joined the said children in a school at Saidabad, Hyderabad and thereafter, she has shifted the children to St. Georges Grammer School, Abids, Hyderabad. Presently, they are pursuing online education. i. She has filed a petition vide O.P.No.1915 of 2021 under Sections 7, 10 and 25 of Guardians and Wards Act, 1890 before Judge, Family Court Hyderabad, to declare her as a guardian of three children, to grant permanent custody of the three children and to grant injunction restraining the respondent/husband, his agents, assigns, or anybody claiming through or under him from taking away the minors from Hyderabad without following due process and without taking her permission.
xiv. The husband also filed a petition vide GWOP No.262 of 2022 under Sections 7, 10 and 25 of Guardians and Wards Act, 1890 before the very same Court seeking to appoint him as a guardian and grant permanent custody of three minor children to him.
5xv. According to the husband, he has not received summons/notice in O.P.No.1915 of 2021 before filing of the GWOP No.262 of 2022. He came to know about filing and pendency of O.P.No.1915 of 2021 filed by the wife only after filing of GWOP No.262 of 2022.
However, wife disputes the said fact and according to her on coming to know about filing and pendency of the O.P.No.1915 of 2021, to defeat the said claim, he has filed GWOP No.262 of 2022.
xvi. However, both the said O.Ps. filed by both wife and husband seeking the similar relief are pending before the very same Court.
xvii. Husband had filed a memo dated 29.03.2023 in GWOP No.262 of 2022 seeking to club both GWOP No.262 of 2022 and GWOP No.1915 of 2021 and to conduct common trial.
xviii. The said memo was not considered.
5. Husband had filed I.A.No.595 of 2022 in O.P.No.262 of 2022 seeking production, examination and handing over of the custody of the three minor children. Learned Family court interacted 6 with the wife, husband as well as with three minor children and on consideration of the said interaction, vide order dated 06.09.2022 learned family Court passed the following order:-
The petitioner and the respondent submitted that they will file a memorandum of understanding with terms and conditions and requested the Court to pass over the matter.
At 4.50P.M. the petitioner along with two minor children appeared along with his counsel and filed an undertaking that he will take the custody of two minor children and will take care of the minor children for all means and all ways. The petitioner also filed an affidavit stating that the respondent by giving the custody of Muskan Fathima and Master Mujeeb Khan left the Court along with the third child. Call on 16.09.2022.
6. He has also filed I.A.No.720 of 2022 in O.P.No.262 of 2022 under Section 7 and 17 of the Act to grant ex parte order for travel permission to him, to take Muskaan Fathima and Mohammed Mujeeb Khan, first and second children to USA. Vide order dated 30.12.2022, learned Family Court dismissed the said application. Challenging the said order, he had filed a revision vide CRP No.606 of 2023. On 27.03.2023, this Court this court passed the following order :-
Court is informed that the case is ripe for conducting trial. Having regard to the peculiar facts of this case and future of the children, prosecuting their course of study through Online in a School in United States of America, I deem it proper to direct the Family Court to conduct trial in G.W.O.P.No.262 of 2022 on day-to-day basis.
Learned counsel appearing for parties are directed to file an application for advancement of the case therein and participate in day-to-day trial. They shall cooperate in concluding the trial as early as possible. 7
7. Wife had filed an Interlocutory Application vide I.A.No.921 of 2022 in GWOP No.262 of 2022 under Sections 12, 17 and 25 of the Act, seeking a direction to the respondent/husband to hand over the custody of two minor children i.e. Muskaan Fathima and Mohammed Mujeeb Khan. Vide order dated 30.12.2022, learned Family Court dismissed the said application. Challenging the said order, she had filed a revision vide CRP No.467 of 2023. Vide interim order dated 27.03.2023 in CRP No.606 of 2023,
8. As discussed supra, on 29.03.2023 husband filed a memo in GWOP No.262 of 2022 seeking to club both the OPs and try together.
Instead of deciding both the OPs, learned Family Court decided O.P.No.262 of 2022 and passed an order dated 01.05.2023, allowing the said O.P. partly by appointing the husband as guardian and granting permanent custody of two minors by name Muskaan Fatima and Mohd. Mujeeb Khan till they attain majority and dismissed the petition in respect of 3rd child i.e. Mariyam Fatima. However, permitted the appellant/ wife to talk with the said two minors through video call for 5 to 10 minutes on every Saturday and Sunday. She is also entitled to visit the above two minors on every Second Saturday and Second Sunday between 10.00 A.M. to 5.00 P.M. whenever the 8 minors are in Hyderabad at the place of choice of minors. The trial Court directed both the parties not to cause any hindrance or interference whenever the three siblings wants to talk through video or voice call or physically with each other, wants to meet each other and wants to spend time with each other, till they attain majority. They were also further directed not to influence the minors in any manner and to take care of the minors by providing all necessities i.e. food, education, clothes, medicine etc, and to see the well being of the minors till they attain majority.
9. Feeling aggrieved by the said order for not deciding custody of 3rd child to him and to appoint him as guardian to 3rd child also, the husband filed FCA No.174 of 2023, whereas wife filed FCA No.163 of 2023 for appointing the husband as guardian of 1st two children and granting their custody to him.
10. The aforesaid GWOP No.1915 of 2021 is pending before the Family Court. Wife had filed I.A.No.709 of 2023 in GWOP No.1915 of 2021 seeking amendment of the relief in GWOP No.1915 of 2021 as follows:-
1. To declare the wife as guardian of the minor Maryam Fatima,
2. To grant permanent custody of the minor Maryam Fatima, 9
3. To grant injunction restraining the respondent, his agents, assigns or anybody claiming through or under him from taking away the minor Maryam Fatima from Hyderabad without following due process of taking permission of the petitioner."
The said petition was allowed. She has filed amended fair copy of the O.P.No.1915 of 2021 on 06.09.2023.
11. Wife filed a revision vide CRP No.2556 of 2023 seeking a direction to the Judge, I Additional Family Court, Hyderabad, to take up O.P.No.1915 of 2021 for expeditious disposal in time bound manner. Vide order dated 23.09.2023, this Court disposed of the said revision directing the Family Court to take up O.P.No.1915 of 2021 at the earliest and try to dispose it of finally in accordance with law within an outer limit of ninety (90) days from the next date of hearing.
12. The husband filed a revision vide CRP No.3044 of 2023 to set aside the docket order dated 06.10.2023, direct learned Family Court to follow the due procedure laid down under law and give fair and equitable opportunity and time allowing the wife to defend the case and file appeals and revisions etc.
13. Vide order dated 10.10.2023, this Court granted stay of all proceedings in GWOP No.1915 of 2021. The said revision was disposed of vide order dated 03.11.2023 directing the Family Court to proceed in a more pragmatic manner and ensure that reasonable 10 opportunity of defence is given to either side while proceeding with the matter and the authorities shall not proceed in a manner detrimental to the interest of the parties more particularly, the interest of the child so far as custody of the child sought for by the parties is concerned and decide GWOP No.1915 of 2021 as expeditiously as possible.
14. Thereafter, the husband has filed I.A.No.1115 of 2023 in GWOP No.1915 of 2021 under Order VII Rule 11 of CPC seeking to reject the petition in O.P.No.1915 of2021, the same is pending.
15. Learned counsel for the wife attacked the impugned order dated 01.05.2023, on the following grounds:-
i. The trial Court ignored the welfare of the minors which is of paramount importance to a Court in deciding the matter of custody and guardianship.
ii. The trial Court failed to consider that the respondent has already married thrice and again is in living in relationship which is admitted by him in cross examination.
iii. In the company of his multiple wives who shall be step mothers to the two children, it would throw a bad influence on the children.11
iv. The trial Court ignored the cardinal principle laid down by the Apex Court in the matters like this.
v. The trial Court failed to understand that the wife has been taking care of the children alone but the father did not bother about them.
vi. The trial Court failed in restricting the contact rights and visitation rights of the mother which are her inherent rights, to see and contact her children. If the father is in USA, she cannot exercise her visitation rights.
vii. She filed a GWOP No.1915 of 2021 to appoint her as a permanent guardian and custodian of all the 3 children. He avoided service in the above OP and filed a GWOP No.262 of 2022 with the same prayer as she sought. Both the petitions are in the nature of petition and counter petition with counter claims by both the parties, hence the trial Court ought to have tried both the matters together. In spite of the memo filed by her to club the matters and try them together, the trial Court instead of trying both together, tried and passed the impugned order. Non clubbing of the OPs and trying them together has caused great prejudice to the appellant herein.12
viii. The trial Court rightly came to a conclusion that appellant was a teacher and she provided the best education and treated the minor children good and never harassed the minor children, took good care of them. In fact the father abandoned the children which establishes that he is a bad parent. ix. The trial Court ought to have considered that the respondent is only interested in custody of children. He filed the said GWOP No.262 of 2022 to further harass the wife.
x. The trial Court failed to consider that the respondent/husband pronounced instant talaq to the appellant/wife when she was in USA, and he was in India and as such the said talaq is illegal as per the principle held by the Apex Court in Shayara Bano v. Union of India 1, and also as per Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.
16. Learned counsel for the husband attacked the impugned order dated 01.05.2023, on the following grounds:-
i. The Family Court erred in separating the third child 'Maryam Fatima' by not granting her custody to him and also by separating from other children.
1 (2017) SCC Online SC 963 13 ii. The Family Court failed to consider that the appellant/wife is in habit of blackmailing the minor children of self-harm, punishing them to make them act and do as per her whims and fancies and the same is affirmed by the children during interaction.
iii. The Family Court ought to have granted custody of the child Maryam Fatima to him and also ought to have formulated shared parenting plan between him and the appellant/wife with regard to custody and visitation.
17. Sri T.Bala Mohan Reddy, learned counsel, representing Ms.Ramya, learned counsel for the appellant/husband in FCA No.174 of 2023 would contend that order dated 27.03.2023 in CRP No.606 of 2023 was passed in the presence of the learned counsel for the wife. He never sought a direction from this Court to dispose of both the O.Ps. by clubbing. Therefore, learned Family Court decided O.P.No.262 of 2022 on merits. She has already filed I.A.No.709 of 2023 seeking amendment of the prayer in GWOP No.1915 of 2021 and the same was allowed. She has already filed amended fair copy in GWOP No.1915 of 2021. Therefore, the only issue to be decided by the Family Court in GWOP No.1915 of 2021 is with regard to the 14 custody of third child. In fact, Family Court erred in dismissing the GWOP No.262 of 2022 in respect of giving custody of third child erroneously. Order dated 06.09.2022 in I.A.No.595 of 2022 in GWOP No.262 of 2022 passed by the Family Court is on consideration of interaction of the wife, husband and three children. Wife reported no evidence in GWOP No.262 of 2022. On consideration of the said aspects and the evidence both oral and documentary, the Family Court passed the impugned order dated 01.05.2023. Therefore, keeping welfare of the minor children, the Family Court passed the impugned order appointing the husband as guardian and permanent custodian of two minor children. There is no error in it. He has also placed reliance on the judgment of the Apex Court in Sirajudheen v.Zeenath 2 and judgment of this Court in Tarannum Naaz v. The State of Telangana 3.
18. Whereas, Sri Mohammad Azhar, learned counsel for the wife would contend that despite filing of memo dated 29.03.2023 by the husband, the Family Court did not consider the same and did not decide both the O.Ps. by clubbing the same. Therefore, the impugned order dated 01.05.2023 is liable to be set aside and the matter has to be 2 MANU/SC/0177/2023 3 MANU/TL/0956/2023 15 remanded back to the Family Court on the said ground alone. The family Court failed to consider the contentions of the wife that the husband has manipulated the date of birth certificate of the first child and in proof of the same, he has relied upon Ex.A.6 birth certificate dated 10.08.2008. The husband married thrice. He gave divorce to first wife. There is serious allegation against him that he committed rape on a girl who lodged a complaint against him and he was compelled to marry her as 2nd wife. He is staying with the third wife. The said fact was admitted by him during the cross-examination. The said aspects were not considered by the Family Court. The Family Court also failed to consider the antecedents of the husband. The first and third children are female and they need care and protection of the mother. Second child is also minor who also need care and protection of the mother. Husband is living with third wife and she may not be in a position to look after the children. The parents of the wife also staying in USA. The Family Court despite giving a finding that the three children are in the custody of the mother till 06.09.2022. Husband did not initiate any proceedings from 2019 to 2022. Minor children were never tortured by the mother. Even then, the Family Court appointed the husband as guardian of first two children erroneously. 16 FINDING OF THE COURT:-
19. The aforesaid facts would reveal that there is no dispute with regard to the marriage of the parties and that they left for USA. They blessed with three children. Two children were born in USA. Thereafter, matrimonial disputes arose between the parties and therefore, she came back to India. Wife alleges that husband abandoned her and the children. Whereas, husband alleges that mental condition of the wife is not suitable and she has attempted to commit suicide. There is dispute with regard to arrival of the mother/wife with the children to India. According to her, she came to India on 09.02.2019. According to the husband, she came to India in the year 2008.
20. It is relevant to note that the respondent/wife had filed a petition vide O.P.No.1915 of 2021 on 21.12.2021. According to husband, he has not received notice in GWOP No.1915 of 2021. He has filed GWOP No.262 of 2022 on 24.02.2022 and thereafter he came to know about pendency of GWOP No.1915 of 2021.
21. Perusal of the said petitions would reveal that the reliefs sought by both the husband and wife in both the aforesaid O.Ps. are one and the same. They are seeking to appoint them as guardian and to 17 give custody of the children who were staying with wife. He took the custody of the first and second children on 06.02.2022 from the Court when wife produced them in the Court. Thereafter, she has filed Interlocutory Application seeking custody of the children. The said application was dismissed and she filed CRP. The same was also disposed of with a direction to the Family Court to dispose of the same.
22. It is also apt to note that husband filed a memo dated 29.03.2023 in GWOP No.262 of 2022 before the Family Court seeking to club both the Ops together and decide the same. The said memo was not considered by the Family Court. It is relevant note that there is no provision to club the said OPs and the Family Court can consolidate the same and decide together. The said principle was also laid down by this Court in the order dated 01.08.2022 in CRP No.950 of 2022.
23. Learned counsel for the wife did not request this Court to dispose of both the OPs together while passing order dated 27.03.2023 in CRP No.606 of 2023. This Court directed the Family Court to conduct trial in GWOP No.262 of 2022 on day-to-day basis. Thereafter, wife did not take steps seeking a direction to Family Court 18 to consider the said memo dated 29.03.2023 filed by the husband seeking to club both the OPs and decide the same together. Appellant counsel did not bring to the notice of this Court about the pendency of the GWOP No.1915 of 2021 filed by the wife before filing of GWOP No.262 of 2022 by the husband and both the OPs are pending in the very same Court, reliefs sought are one and the same and the parties are also one and the same. Therefore, this Court directed the learned Family Court to decide GWOP No.262 of 2022. The said mistake committed by the Family Court in not deciding the aforesaid OPs together as sought by the husband vide memo dated 29.03.2023 made the parties file I.A.No.595 of 2022, I.A.No.720 of 2022, I.A.No.921 of 2022, I.A.No.709 of 2023 and I.A.No.1115 of 2023. They were compelled to file CRP No.467 of 2023, 606 of 2023, CRP No.2556 of 2023 and CRP No.3044 of 2023.
24. Thus, learned Family Court grossly erred in deciding GWOP No.262 of 2022 filed by husband keeping GWOP No.1915 of 2021 filed by wife. Family Court failed to consider the fact that wife filed GWOP No.1915 of 2021 first and husband filed GWOP No.262 of 2022 thereafter. In fact, husband filed a memo dated 29.03.2023 to club both the OPs and decide together. Thus learned Family Court 19 committed procedural irregularity. The wife and her counsel failed to take steps for disposal of both the OPs together and allowing the Family Court to decide only GWOP No.262 of 2022. She has filed I.A.No.1115 of 2023 seeking amendment.
25. As discussed supra, the marriage of the husband with the wife is first marriage to the husband. He has already filed OP No.1743 of 2022 challenging Ex.A.2 divorce certificate dated 24.11.2018 issued by the Telangana Wakf Board. The said OP is pending. Now he is living with the third wife in USA. The said fact was admitted by him during cross-examination. The said fact is not in dispute. Even children are aware of the said fact. They have admitted that their father is staying with step-mother.
26. It is relevant to note that during interaction, first daughter informed the Family Court that she was with the mother since her childhood. Now she wants to stay with father who came from USA. She did not spend time with her father for the last four years. She never met her father since last four years. He came to India to take her and her brother. Her mother is behaving badly with her and insisting them to study and not to move with friends. Even son also stated the same facts during interaction. However, he said that his father is 20 staying with his step-mother and he wants to give equal preference to his mother and father. That is the reason why he wants to go and join with his father.
27. It is also apt to note that when I.A.No.595 of 2022 in GWOP No.262 of 2022 was listed before the Family Court for hearing on 06.09.2022, both the husband and wife along with the three children were present, Family Court interacted with them and recorded their submissions during interaction. The Family Court also recorded in the order dated 06.09.2022 that both the appellant and respondent submitted that they will file a Memorandum of Understanding in terms and conditions and requested to pass over the matter. At 4.50P.M. the husband along with two minor children appeared along with his counsel and filed an undertaking that he will take the custody of two minor children and will take care of the minor children for all means and all ways. He has also filed an affidavit stating that the respondent by giving the custody of Muskaan Fathima and Master Mujeeb Khan left the Court along with the third child. Thereafter, she has filed I.A.No.921 of 2022 seeking custody of the children. The same was dismissed and she has filed CRP. 21
28. Thus, there is no consideration of the aforesaid aspects by the Family Court.
29. It is also relevant to note that there is serious allegations against the husband that he has manipulated record and obtained two date of birth certificates in respect of the first child by playing fraud on the authorities and he has obtained passport of first child in USA. According to the wife, the husband manipulated the date of birth certificates of first child. He has obtained birth certificate from Nellore Municipality (Ex.A.6) wherein her date of birth is mentioned as 10.08.2008 and place of birth as 21-1-1220, Basheer Nagar, Dargamitta, Nellore. He has also obtained another birth certificate issued by GHMC, dated 14.08.2019 (Ex.B.1) of the first child wherein her date of birth mentioned as 10.08.2007 and place of birth as Fernandez Maternity Hospital, Hyderabad. According to wife, the passport of the first daughter was obtained relying on Ex.B.1. Therefore, the same may create problem to first daughter. Though, the same were pleaded specifically. Family Court failed to consider the same.
30. The marriage of the parties is registered vide Marriage License, dated 24.06.2009 issued by the Superior Court of State of 22 Arizona, USA. According to wife, their marriage took place in USA as such it cannot be dissolved by any other Court than USA Court. The Family Court also failed to consider that though the three minor children were with wife and two children were taken by husband on 06.09.2022 from the Court, the said aspects were not considered in the impugned order. Despite giving a finding that it can be presumed that the minors are happy with their mother till 2022, that they were never tortured by their mother, she is a Teacher, the Family Court appointed the husband as guardian of the first two children erroneously. As rightly held by the Family Court that the wife being mother and school Teacher imposed certain restrictions on the minor children and the same is not acceptable to both the children. First and Third children are female, even son is also at tender age, they require care, protection of the mother. Without considering the same, the Family Court even then, dismissed the application filed by wife seeking custody of the minor child. Ultimately, the husband left for USA along with two children staying with his third wife.
31. It is relevant to note that during the cross-examination the husband/P.W.1 categorically admitted about the obtaining (EX.B.1) date of birth certificate of the first child. The marriage licence 23 (EX.B.2), dated 24.06.2009 and that he was in India when wife and children returned to India he is not aware of the said travel. According to him, wife abducted the children from USA to India and in proof of the same, he has placed reliance on Ex.A.12-letter of abduction. He never stayed with the wife after she along with children returned to India. He has also admitted that he did not receive summons in O.P.No.1915 of 2021 and he came to know about O.P.No.1915 of 2021 after filing GWOP No.262 of 2022. However, he has appeared before the Family Court on 21.04.2022 in GWOP No.1915 of 2021. He did not remember whether three children stated before the Court that they want to stay with mother and they did not want to stay with father. Wife initially admitted the three children in a school appear to be a Madarassa without his consent. He has further also admitted that three children are with mother till 06.09.2022. He did not obtain permission from the Court to get admission of his two children to attend online classes. In the year 2019, he has not initiated any proceedings to take back the children. But through mediation, elders and siblings, he made efforts to take back the children. Wife agreed to send the children after some time. In the meanwhile, there was break of COVID-19.
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32. It is relevant to note that according to the husband, wife is not mentally stable. He has made the said serious allegation against the wife. However, he has admitted during the cross-examination that Ex.A.20 is the mail sent by him to the siblings in which it was mentioned that "She gets negative thoughts like cutting Mujeeb with a knife and drowning Muskaan in the pool" in between 2011 and 2014. The wife was under medication and depression in USA. He has not filed the medical record of her, however, he can procure the same.
33. During the cross-examination, he has further admitted that he has filed O.P.No.1743 of 2022 seeking to declare Ex.A.2 as valid and legal. His existing wife is his third wife. However, he has denied to a suggestion that the second wife filed a rape case against him in USA. His second wife is an Indian citizen. To prove that the wife is mentally unstable, he has filed Ex.A.19 and A.22. However, he has admitted during the cross-examination that Ex.A.19 and Ex.22 are not the medical certificates. He is relying on Ex.A.26-photostat copies of messages from her employer that she will commit suicide if she is not allowed inside the school, to substantiate his contention that the wife had suicidal tendency.
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34. He has further admitted that divorce happened in the office of Khazi and at that time, the wife was not present. His both wives know about his marriage and he obtained divorce from his first wife. His second and third wives are aware about his marriage with the wife on 01.07.2009 as per Ex.B.2. The said marriage was officiated on 05.01.2007 at Hyderabad. Thus, husband failed to prove the said allegation that mental condition of the wife is not stable by producing cogent evidence. The said aspects were not considered by the Family Court in the impugned order.
35. It is also relevant to note that there are issues with regard to Passports and Visa of the wife and her children. It is not in dispute that her parents are residing in USA. The husband is staying with his third wife.
36. As discussed supra, the learned Family Court grossly erred in deciding GWOP No.262 of 2022 alone without deciding the GWOP No.1915 of 2021 filed by wife before husband filed GWOP No.262 of 2022. The said error committed by the Family Court made the parties to file so many Interlocutory Applications and Revisions. In fact, husband took the custody of the first two children when wife produced 26 them in the Family Court on 06.09.2022 pursuant to order passed by the Family Court. Without considering the said aspects, the Family court dismissed the application filed by wife seeking custody of the children. Thus, the Family Court grossly committed procedural irregularities. There are passport issues of children and also visa issue of wife. The passports are going to be expired according to the learned counsel for the wife, third child passport is going to be expired by 30.12.2023. The said error committed by the learned Family Court made the husband to file I.A.No.1115 of 2023 under Order VII Rule 11 of CPC seeking to reject the petition in O.P.No.1915 of 2021 filed by the wife. At present, the husband is in USA along with two children. He has to come back and give evidence. The Family Court failed to visualize the said aspects while deciding GWOP No.262 of 2022 alone, keeping GWOP No.1915 of 2021 pending. Thus, the Family Court grossly erred in not deciding GWOP No.1915 of 2021 filed by wife along with GWOP No.262 of 2022. The Family Court failed to consider the memo dated 29.03.2023 filed by husband to club both the Ops and decide the same together.
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37. It is relevant to note that this Court vide order dated 09.08.2023 in Tarannum Naaz (supra) considered the several aspects and law laid down by the Apex Court in deciding the custody petitions. In paragraph No.59 of the said judgment, this Court observed that while deciding a petition for custody of the minor children, the following crucial factors are to be kept in mind by the Courts for gauging the welfare of the children equally for the parents:-
1. Maturity and judgment,
2. Mental stability,
3. Ability to provide access to schools,
4. Moral character,
5. Ability to provide continuing involvement in the community,
6. Financial sufficiency and last but not the least the factors involving relationship with the child, as opposed to characteristics of the parents as an individual.
38. As discussed supra, first and third children are female children and they are minors. Second child is a son and he is also a minor. All of them need care and protection of their mother. At the cost of repetition, as discussed supra, the husband is staying in USA with his third wife. Children cannot be expected to stay with step-
mother. The parents of the wife are staying in USA. During the course 28 of hearing, learned counsel appearing for wife on instructions submitted that the respondent is intended to travel to USA but she has some visa issues. The said aspects were not considered by the Family Court.
39. It is settled law that under exceptional circumstances, matter can be remanded back to the trial Court. In the light of the aforesaid discussion, we are of the considered view that this is one of the exceptional cases to remand the matter back to the learned Family Court for conducting fresh inquiry and dispose of it strictly in accordance with law along with GWOP No.1915 of 2021.
40. Viewed from any angle, the impugned order dated 01.05.2023 in GWOP No.262 of 2022 is liable to be set aside and matter is liable to be remanded back to the Family Court with a direction to decide both GWOPs together by consolidating the same on consideration of memo dated 29.03.2023 filed by the wife.
41. In the light of the above discussion, these two appeals are allowed. The impugned order, dated 01.05.2023 in GWOP No.262 of 2022 passed by learned I Additional Family Court at Hyderabad, is set aside. The matter is remanded back to the Family Court with a direction to decide the GWOP No.262 of 2022 along with GWOP 29 No.1915 of 2021 on consolidation of the same, consider the aforesaid aspects, welfare of the children and decide the same strictly in accordance with law by putting the parties on notice and affording them an opportunity, as expeditiously as possible. Liberty is granted to wife to seek amendment of GWOP No.1915 of 2021.
Consequently, miscellaneous petitions if any pending in these appeals shall stand closed.
________________________ JUSTICE K. LAKSHMAN ________________________ JUSTICE P.SREE SUDHA Date: 13.12.2023.
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