Kerala High Court
Bushara vs Shibinu on 6 November, 2014
Equivalent citations: AIR 2015 KERALA 21, (2014) 4 KER LJ 567, (2015) 1 KER LT 387, (2015) 149 ALLINDCAS 359 (KER)
Author: Alexander Thomas
Bench: V.K.Mohanan, Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
&
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 6TH DAY OF NOVEMBER 2014/15TH KARTHIKA, 1936
Mat.Appeal.No. 517 of 2014
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OP(G&W) NO.2192/2013 OF FAMILY COURT, ATTINGAL.
....
APPELLANT/RESPONDENT:
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BUSHARA, AGED 26 YEARS,
D/O.ABDUL VAHAB, VALIYAPALLI,
THEKKATHIL VEEDU, HOUSE NO.1/352,
VAKKOM VILLAGE, CHIRAYINKIL TALUK,
THIRUVANANTHAPURAM.
BY ADVS.SRI.M.DINESH
SMT.R.K.CHIRUTHA
RESPONDENT/PETITIONER:
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SHIBINU, AGED 30 YEARS,
S/O.SHAHUL HAMEED, SHIBINU MANZIL,
HOUSENO.K.S.PV - 349, VAVVAKKAVU P.O.,
KULASEKHARAPURAM VILLAGE,
KARUNAGAPPALLY, KOLLAM.
BY ADV. SRI.M..SREEKUMAR (CAVEATOR)
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION
ON 30-06-2014 , THE COURT ON 06-11-2014 DELIVERED THE
FOLLOWING:
mbr/
V.K.MOHANAN & ALEXANDER THOMAS, JJ.
==================
Mat Appeal No.517 of 2014
[Arising out of judgment dated16.5.2014 in
O.P(G&W) No.2192/2013 of Family Court, Attingal)
==================
Dated this the 6th day of November, 2014
J U D G M E N T
ALEXANDER THOMAS, J.
The appellant herein (Bushara/wife) is the respondent in O.P (G&W) No. 2192/2013 filed before the Family Court, Attingal, by the respondent herein (Shibinu/husband) with the prayer for permanent custody of his minor son after declaring him as the guardian. The marriage between the appellant herein (wife) and the respondent herein (husband) was solemnized in accordance with the customs and rites of Muslim community and a son was born in their wedlock. The marriage got strained and the respondent herein (husband) pronounced talaque on the appellant herein (wife) on 16.3.2013. Thereafter, the respondent herein (husband) filed the above said original petition before the court below for declaring him as the guardian of the minor son and for his permanent custody. The court below held that, as per Section 352 of the Mohammedan Law, the mother is entitled to the custody of the minor male child M.A.517/14 - : 2 :-
until he has completed the age of 7 years and that it is settled law that the court has discretion to pass appropriate orders overlooking such personal law in the light of the provisions of the Guardians and Wards Act and that the court below finds no reason to disqualify the mother to have custody of the minor son until he completes the age of 7 years and that orders passed in respect of custody of the child can be altered in change of circumstance. The court below specifically considered the issue as to whether the father is capable of taking care of the child, keeping in view his employment responsibilities and came to the conclusion that the father, who is working in Malappuram district, will not be able to look after the affairs of the minor child when compared to the mother, who is not employed. For that reason the court below reached the considered conclusion that for the time being the permanent custody of the child cannot be given to the father and that there is no necessity to grant a declaration as prayed for.
2. But the court below granted certain limited visitation rights and custody of the minor child to the respondent herein (husband) during Onam, X'mas and summer vacation of the school etc. The court below held in the impugned judgment as follows:
M.A.517/14 - : 3 :-
"a) Until the child completes the age of 7 years, the
father is allowed to have only a right of visitation and custody during holidays of Onam and X'mas and summer vacation of the school by directing the mother to hand over the child to the father for one week during Onam and X'mas Holidays and for a fortnight during April and May of every year. The father shall serve a notice to the wife or her counsel to cause production of the child before the court on each occasion for the said purpose and parties shall hand over the child at the court premises by making necessary entries in the records maintained by the court for the said purpose.
child from 10Thehe tobear for which alsoa.mfather give prior intimation to the wife or her
b) is also allowed to have the company of the 3 p.m. on every working alternate Saturdays, counsel and he shallshall the expenses for bringing he child to the court and return.
c) Parties are at liberty to approach this court, if they want any alteration of the above arrangement on valid grounds by filing application.
d) Regarding the custody of the child after the child completes 7 years further orders will be passed on application of the father, until that time the custody will be with the mother, subject to the above conditions.
e) Since both the parties are natural guardians, in the given circumstance, I am not inclined to declare the father alone as the guardian as prayed for.
f) No orders as to cost."
Accordingly, the court below held that the custody of the minor child until he reaches the age of 7 years will be with the mother subject to limited visitation rights and interim custody during holidays as stated above and that the issue regarding the custody of the child after he completes the age of 7 years, is to be decided by considering further orders that may be passed on any such M.A.517/14 - : 4 :-
application that may be moved by the father and that until that time, the custody shall be with the mother, etc.
3. Though the appellant herein (wife) succeeded predominantly in the litigation before the court below, she has chosen to institute this matrimonial appeal by projecting that she is aggrieved by the impugned judgment to the limited extent that it permits visitation rights and interim custody of the minor child during holidays in favour of the respondent herein (husband).
4. Heard Sri.Dinesh, the learned counsel for the appellant herein (wife) and Sri.M.Sreekumar, learned counsel appearing for the respondent herein (husband) through caveat.
5. The main contention of the appellant is that under Section 352 of the Mohammedan Law, the custody of the minor son until he completes the age of 7 years, shall be under the control of the mother and not on the father, irrespective as to whether the mother is a divorcie or not and that the court below has violated the personal law by directing to give visitation rights and interim custody of the minor son to the respondent herein (husband) during the holidays as stated above, and that the impugned directions issued by the court below to hand over the custody of the child in M.A.517/14 - : 5 :-
Onam, Christmas and summer vacation are erroneous and in flagrant violation of the personal law and amounts to misinterpretation of personal law of Muslims and that the personal law gives full protection to the minor son by giving his custody right exclusively to the mother upto the completion of 7 years by the child and that if such limited visitation rights and consequential interim arrangement is ordered by the court below, it will amount to violation of the personal law. Therefore, it is contended that the impugned judgment to the limited extent it grants temporary visitation rights and consequential interim custody of the minor son in favour of the husband during holidays is an illegality committed by the court below, which warrants interference at the hands of the appellate court.
6. We are not impressed by these submissions and plea made by the learned counsel for the appellant for reasons more than one. Mulla Principles of Mahomedan Law, edited by Justice M.Hidayathullah (former Chief Justice of India) and Sri.Arshad Hidayathullah (LexisNexis - Butterworths Wadhwa) (19th edition Page 287), deals with the issue. Chapter XVII Part B thereof deals with the guardianship of person of a minor and Section 352 M.A.517/14 - : 6 :-
thereunder, may be quoted below for easy reference:
"Sec.352. Right of mother to custody of infant children.- The mother is entitled to the custody of (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, unless she marries a second husband in which case the custody belongs to the father."
After quoting the above provision of Muslim Personal Law, the learned authors state cogently that the principles propounded in these sections cannot, however, be read in isolation and divorced from the provisions of the Guardians and Wards Act, which vests in the court a discretion to direct return to the custody of a guardian a ward, who leaves or is removed from his custody in appropriate cases where the Court thinks that such a direction is necessary for the wellbeing of the ward and that where the case of personal law indicates one course of action and considerations of the welfare of the minor indicates another, the former must be sub-ordinated to the latter. The words that furnish a key to the correct legal position are to be found in Sec.17 of the Guardians and Wards Act and that the principles of personal law must be applied, "subject to the provisions of this Section" (viz., Section 17). Accordingly, it is opined by the learned authors that if there is a conflict between the personal law to which the minor is subject and considerations of his M.A.517/14 - : 7 :-
or her welfare, the latter must prevail as held in the case Mohd. Yunus v. Shamshad Bano, reported in AIR 1985 All. 217.
7. It has been held in Momtaz Begum v. Mubarak Hussain reported in AIR 1986 M.P. 221 that even if the mother must have custody of the child of tender age, till he attains the age of 7 years, the father must not be denied access to the child. In the case Imambadi v. Mutsaddi reported in (1918) 45 Indian Appeals (I.A.) 73, p.83-84, their Lordships of the Privy Council held that "It is perfectly clear that under the Mohammedan Law the mother is entitled only to the custody of the person of her minor child upto a certain age according to the sex of the child. But she is not the natural guardian, the father alone, or, if he be dead, his executor (under the Sunni law) is the legal guardian." Justice M.Hidayatullah, who has authored the above mentioned authoritative textbook, has opined that it would appear from the passage quoted above from the Privy Council decision that the father is the primary and natural guardian of his minor children, and that the right of custody of the mother and female relations mentioned in Sec.353 below is subject to the supervision of the father, which he is entitled to exercise by virtue of his guardianship.
If so, the right of hizanat does not carry with it all the powers which M.A.517/14 - : 8 :-
a guardian of the person of a minor has under the Guardian and Wards Act,1890. It has been held in case Mohammed Shafi v. Shamin Banoo reported in AIR 1979 Bom. 156 that even during the marriage, the custody of the minor children in case of a boy until he attains the age of 7 years, and in the case of a female until she attains puberty, is with the wife.
8. The only challenge made in this appeal is to the orders granted by the court below in the impugned judgment to the limited extent that the father should be given intermittent visitation rights and consequential interim custody of the minor boy during Onam, Christmas and Summer vacation.
9. We are of the considered opinion that the impugned directions issued granting limited visitation rights to the father during holidays is only in the welfare of the child and that the paramount consideration that has to weigh with the appellate court as well as the Family Court, is the welfare of child in a case like the instant one. The welfare of the child demands that he should get not only the love and affection of the mother but also that he should have the opportunity to meet and interact with his father during limited periods of holidays so that he also enjoys the care and love M.A.517/14 - : 9 :-
of the father. Otherwise, the growth of the child, who is now aged only hardly four years old (born on 25.12.2009) will not get a well balanced and harmonious exposure to the love and care of both his father and mother. Merely because the personal law gives custody of the minor son until he completes the age of 7 years in favour of the mother, does not lead to a situation of complete obliteration of the necessity of the child to get interaction and exposure with his father and it cannot be interpreted that the provision of the Mohammedan Law should be hyper technically interpreted and enforced leading to a situation whereby it is in derogation and flagrant violation of the aspect, which demands that the paramount consideration should be the welfare of the minor child. As clearly held in Mumtaz Begum v. Mubarak Hussain reported in AIR 1986 M.P. 221 that even if the mother must have custody of the child of the tender age, until the age of 7 years, the father must not be denied access to the child. Accordingly, we are of the considered opinion that the court below has not committed any illegality in issuing the impugned direction in the impugned judgment that the father should be given limited visitation rights and consequential interim custody of the minor boy during Onam, X'mas and Summer M.A.517/14 - : 10 :-
vacation as directed therein. We have considered only the legality or otherwise of the above said impugned direction regarding the visitation rights and we have not dealt with or considered the legality or otherwise of any of the other directions or findings made therein. This is because the only point on which the judgment of the court below is impugned in this appeal is regarding the issue of the limited visitation rights given to the father.
Accordingly, we hold that the Matrimonial Appeal is bereft of any merit and is accordingly, dismissed.
There will be no order as to costs.
Sd/-
V.K.MOHANAN, JUDGE Sd/-
sdk+ ALEXANDER THOMAS, JUDGE
///True copy///
P.S. to Judge