Madras High Court
J.Sadiq Batcha vs A.Mohamed Kasim on 22 March, 2013
Author: T.Raja
Bench: T.Raja
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 22/03/2013 Coram The Hon'ble Mr. Justice T.Raja CMA (MD) No.743 of 2012 & M.P. Nos.1 and 2/12 1. J.Sadiq Batcha 2. Fathima Jon ... Appellants vs. 1. A.Mohamed Kasim 2. Beejan Beevi ... Respondents Appeal filed to set aside the Order, dated 30.04.2012, passed by the Principal Sub Judge, Thanjavur, in G.O.P. No.220 of 2012, and to appoint the appellants as joint guardians of minor girl S.Selina, aged 4 1/2. !For Appellants ... Mr.G.Jermiah ^For respondents ... M/s.Ajmal Associates :JUDGMENT
The appellants herein, who are the father and paternal grand-mother respectively of a minor girl by name Selina aged about 4, have filed the present Civil Miscellaneous Appeal against the order, dated 30.04.2012, passed by the Principal Subordinate Judge, Tanjore, dismissing G.O.P. No.220 of 2010 filed by the appellants herein as petitioners and consequently, directing the appellants to hand over custody of the minor to the respondents, who are the maternal grand-parents of the child.
2. At the outset, the case of the parties before the trial court is given in brief here-under:
Appellant No.2 is the mother of Appellant No.1, who, on 28.03.2005, married one Haseena Begum, the daughter of the respondents, and out of the wedlock, they had a female child - Selina. On 19.04.2010, Haseena Begum died on account of physical ailments. Consequent thereto, the respondents, who are the parents of the deceased and the maternal grandparents of child-Selina, insisted upon the appellants herein to hand over the custody of the child to them which prompted the appellants to file G.O.P. No.743/2012 before the trial court seeking to appoint them as guardian of the minor child. The respondents/maternal grandparents of the child objected to the prayer of the petitioners/appellants herein by stating that the 1st petitioner/1st appellant, after the demise of his wife, contracted second marriage with a widow and after such second marriage, he left abroad with her and had a child through her. Further, while taking care of the 2nd wife and the child born through her, obliviously, he left the custody of child-Selina with his mother, who is a very sick lady. They highlighted before the trial court that the 2nd petitioner had two grand children to take care, whereas, they had not only lost their daughter and now, their only aspiration is to raise up the child left by her by giving her all love and affection and spending for her education. They specifically claimed that a sum of Rs.10,000/- is being received by them as monthly pension and also, they have bank deposit of Rs.4,00,000/- besides owning a house to nurture and maintain the child. Hence, in the circumstances pointed out, they had sought for grant of custody of child- Selina in their favour and dismissal of the G.O.P. filed by the petitioners.
3. Before the trial court, documents under Exs.P1 to P3 came to be marked on the side of the petitioners and the 2nd petitioner got examined herself as PW-1. On the side of the respondents, 1st respondent was examined as RW1 and the pension documents and bank pass book were marked as Exs.R1 and R2 respectively. The trial court, after considering the oral and documentary evidence, found that guardianship could not be handed over to the father/1st petitioner therein since he is not living in the country and is in abroad and further, the 2nd petitioner had also to look after the other grandchildren as well as the family members; therefore, it is just and proper to order custody in favour of the respondents for whom, after the demise of their sole daughter, the only aspiration in life is to raise up the grand-daughter and for such purpose, they have sufficient financial means in the form of income through pension and immovable properties. So finding, the trial court, by the impugned judgment, concluded that the petitioners are unfit to be appointed as Guardians of minor- Selina and directed them to hand-over custody to the respondents/maternal grand parents. Hence, the petitioners/father and paternal grandmother of child-Selina have come up with the present Appeal.
4. Mr.G.Jermiah, learned counsel appearing for the petitioners forcibly argued that the father of the child, after the demise of the wife, contracted 2nd marriage with a widow and also begot a child through her, but unfortunately, such usual practice prevalent in the society was differently viewed by the trial court. According to him, swayed by the sentiment that the father, after the death of the first wife, took his own care by contracting second marriage and begetting a child and he, inattentive to the welfare of child-Selina, simply left her to the custody of his mother, the trial court unfortunately directed to hand over custody to the respondents and such approach is even opposed to the provisions of the Guardians and Wards Act, 1890 (in short 'Act'), in particular, Section 8 thereof. According to him, as per Section 8, an order shall not be made except on the application before the competent court having jurisdiction in the place where the minor ordinarily resides, and that being so, in the present case, without even the respondents' making out any written application whatsoever as contemplated in the above provision, the trial court, after being carried away by sentiments that the father of the minor girl is now living abroad with the 2nd wife and the child born through her, and by considering such common phenomenon as a religious taboo, turned down the application filed by him.
By referring to a decision of the Andhra Pradesh High Court reported in AIR 1983 AP 106 (Md.Jameel Ahmed Ansari v. Ishrath Sajeeda), he highlighted the proposition that 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; and that, ordinarily, the children are to be with the father.
Learned counsel also referred to a decision reported in AIR 1932 Allahabad 215 (MT.Siddiqunnisa v. Nizamuddin) to focus on the point that the mere fact that a female relation is entitled to the custody or care of minor girl upto certain age would not result in the father not being guardian of the child and also the fact that the father of a minor girl has married again is not necessarily a disqualification when he has got his mother or other nearer female relations who can take care of the daughter.
By relying upon a decision of the Apex Court in R.V.Srinath Prasad v. Nandamuri Jayakrishna (AIR 2001 SC 1056), learned counsel laid emphasis on the observation made to the effect that custody of minor children is a sensitive issue involving sentimental attachment and hence, such a matter is to be approached and tackled carefully, striking a balance between the attachment and sentiments of the parties towards the minor children and the welfare of the minors is of paramount importance.
According to the learned counsel when the father is alive and able to take care of the child through his mother, in the light of the observations made in the decisions cited by him, the impugned judgment and the direction issued therein cannot be legally justified. Ultimately, by adding that since the court below did not appreciate the case in a proper perspective and the order passed in favour of the respondents, in the absence of an independent application for custody in terms of the provisions of the Act, being totally erroneous, learned counsel pleaded this Court to set aside the judgment impugned and consequently, to issue a direction giving custody of minor-Selina in favour of the appellants.
5. Mr.Ajmal Khan, learned Senior Counsel appearing for the respondents, put his track of arguments first on the basis of legal aspects by reading Section-17 of the Act, which is given below, " 17. Matters to be considered by the Court in appointing guardian.-
(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his 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. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(5) The Court shall not appoint or declare any person to be a guardian against his will.
Stressing upon sub-clause (1) to Section 17 of the Act and the clear wordings to the effect that the Court shall, in appointing or declaring the guardian of a minor, be guided by what, consistently with the law to which the minor is subject, learned Senior Counsel would submit that the parties being Muslims, in this issue relating to custody of the minor, the provisions of the Muslim Law would have a clear bearing upon the whole spectrum of the issue - in particular Sections-352 and 353 of the Mahomedan Law as the former provision relates to the right of mother to custody of infant children while the latter deals with the right to female relations in default of mother. In respect of Section 353, he made a point that even if the minor's mother has lost her right by remarriage, the maternal grandmother has a right of guardianship preferential to the father's mother and further, the rights of the female relations of the mother cannot be taken away by the father appointing by his will other persons as the guardians of his minor children. That is why, Section 353 provides that 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 female relatives, who are clearly mentioned in order therein, and the "first" and "most preferred" among such female relatives is "mother's mother, how highsoever" and only thereafter, comes into picture "father's mother, how highsoever".
Therefore, according to him, when the Act itself is very clear that, in matters like this, the court shall be guided by the law (personal law) to which the minor is subject and when that law ie., Mahomedan Law, is applied, the most eligible person to take custody of the minor after the demise of the mother being the 'mother's mother' (maternal grandmother), the trial court was absolutely right in granting the custody to the maternal grand parents in a case, where the facts are also peculiar that the father, though took direct and personal care of the 2nd wife and the child born through her, very casually left the child with the custody of his sick mother, who had to look after the other family members and two other grand children from her issues other than the 1st appellant. Therefore, the ultimate conclusion of the trial court is perfectly in order, leaving no scope for interference by this Court.
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. Now, it is relevant to extract Section-352 of the Mahomedan Law here-under, "352. Right of mother to custody of infant children. The 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 has attained puberty. The right continues though she is divorced by the father of the child (e), unless she marries a second husband in which case the custody belongs to the father(f)."
Section 353 is also relevant and the same is extracted below.
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 Section-355 dealing with right of male paternal relations will come into play in default of female relations and since female relations are available in this case, there is no need to refer to that provision.
8. Though Section-352 speaks about mother's Hizanat (custody) of the minor ie., 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.
9. Now, the other vital question is, when under Mahomedan Law, the father being the guardian and he does not suffer from any disqualification due to second marriage, whether grant of custody with the maternal grandparents against the father/guardian is justified in law or not?
10. There is no dispute over the position that a father, under Mahomedan law, is entitled to the custody of the child - in the case of son, after he has completed the age of seven years and of daughter, after she has attained the age of puberty. At the same time, there is no rule of Mahomedan Law that he is entitled to that custody even he is unfit for it. Therefore, the Court has the power to appoint the mother or any other person whom it thinks proper, guardian of the person of the minor, if the father, in its opinion, unfit to be such guardian. Because, the paramount consideration in granting custody and guardianship is the welfare of the minor. The facts of the case here show that the first appellant, after the demise of his wife/mother of child-Selina, married a widow and had a child through her. As rightly pointed out by the learned Senior Counsel, had he taken child-Selina with him to be brought up under his care and protection like the child born to him through the second wife, no occasion would have arisen for the respondents to claim the custody. That is why, the trial court, by closely examining the issue in that regard, came to the conclusion, on the basis of clear evidence, that the father, who is living abroad with the 2nd wife and the child born through her, and the paternal grand mother, who also has to look after the other grand children as well as family members, are unfit, in the given circumstances, to claim custody of the minor. This Court can very well infer that, not moved by sentiments or carried away by emotions, the trial court passed the order under challenge. When the father is unable to take care of the minor child and at the same time has that ability in regard to the child born through the 2nd wife, necessarily, in law and equity, the scales should be tilted only in favour of the maternal grandparents who have made out a clear case both in terms of showing love and affection and providing education and other amenities to the child. Therefore, in the peculiar factual circumstances, this Court finds full justification in the conclusion of the trial court, based on the evidence on record, in declaring the appellants as unfit for custody and guardianship of the minor. But for the capsulated discussion and slip in clearly underlining the legal provisions, this Court does not find any error or flaw in the reasonings or the ultimate conclusion reached by the trial court.
11. For the foregoing reasons, this Court finds no good reason to interfere with the Judgment of the court below. Consequently, the appeal fails and it stands dismissed as devoid of any merit. While closing the Miscellaneous Petitions, it is ordered that if the custody of child-Selina still continues with the appellants, they are hereby directed to hand over custody of the child with the respondents herein, within one week from to-day. No costs.
JI.
To Principal Sub Judge, Thanjavur.