Heard both sides.
2. This Original petition is filed by the petitioner- mother under Section 25 of the Guardian and Wards Act, 1890 (for short GAWA) seeking for the custody of her minor son A.Arshath Ahamed born on 22.02.2004.
3.The original petition was admitted on 11.12.2008. On notice from this Court, the first respondent, who is the grand father of the minor child entered appearance and has filed a counter affidavit on 22.06.2009 resisting the claim. Subsequently, after the evidence of the petitioner was recorded as P.W.1 and the first respondent as R.W.1, the respondent filed an application in A.No.3206 of 2009 to implead the second respondent as party second respondent. The same was ordered by this Court on 29.07.2009. The impleaded second respondent is the father of the minor boy A.Arshath Ahamed. Though he did not file any counter statement independently, he has filed a proof affidavit and also examined himself as R.W.2.
4. The case of the petitioner was that she is the daughter of one N.Mohamed Sarfudeen residing at Nadutheru, Adiyakkamangalam Village, Thiruvarur Taluk. The first respondent is her father-in-law. This Original Petition was filed to restore her minor son A.Arshath Ahamed, (who was aged 4 years and 8 months at the time of filing of the Original Petition) to the petitioner from the illegal custody of the first respondent. The petitioner stated that her marriage with the second respondent was solemnized on 14.04.2003 as per Islamic Shariat law at Kodikalpalayam Village in Thiruvarur District. The marriage was also registered by the Managing Committee of the Masjid in the village and entered in the Nikkah Register. Out of their lawful wedlock, a son was born to them on 22.02.2004 and a girl was born to them on 10.10.2005. The petitioner was living with her husband-second respondent and children in the matrimonial home along with the first respondent.
5. It was further stated that in the year 2005, the petitioner's mother-in-law died. After the death of her mother-in-law, the petitioner accidentally had seen the first respondent in a compromising position with a servant maid. Even the petitioners husband and his brothers after coming to know about the same, stopped the servant maid coming to their house. Thereafter, the first respondent developed animosity against the petitioner and wanted to wreck vengeance because of the complaint made by the petitioner. Therefore, he influenced the second respondent who started harassing the petitioner. Hence, unnecessary issues were raked up which dumped the petitioner along with the children in her parents house. After 15 days, the petitioner and the minor children were taken back to their matrimonial house. But the first respondent as preplanned accused the petitioner and made character assassination. He forcefully sent her from the matrimonial home retaining the children. It was stated that the petitioner took action through Kodikalpalayam Jamath and retrieved the minor daughter. She also lodged a complaint through an N.G.O. to the All Women Police Station at Thanjavur and recovered the custody of the minor son also. Due to the compromise efforts made by the All Women Police Station, the second respondent took back the petitioner and children with him. But once again the petitioner was sent back to her parents house along with her children stating that the second respondent will convince the first respondent and will take her back within 10 days.
6. It was further stated that the petitioner after waiting for few months, took initiatives through the Jamath at Adiyakkamangalam village for her reunion with her husband namely the second respondent. In the mean while, the petitioner came to know that the second respondent has sent a Talaq letter to Kodikalpalayam Jamad declaring 'Triple Talaq' to divorce her. It was returned by the said Jamad stating that his pronouncement was not in accordance with the Shariat law. Later on, the petitioner came to know that the second respondent has left for London (UK) by assuming another name. He did not take part in the mediation conducted by the Jamad and his whereabouts were not disclosed to the petitioner. However, to settle the disputes regarding maintenance, the Jamad members conducted mediation between the petitioner's family and the respondent's family. They advised the petitioner to hand over the custody of the minor boy to the second respondent's family. But the petitioner opposed the said proposal. Her objection was ignored by the Jamad members.. The Jamad also advised the respondents to return the jewellery of the petitioner and directed him to deposit Rs.3 lakhs towards the future marriage expenses of the minor girl child and to pay Rs.2 lakhs for the value of marriage expenses and 'seer varisai' given by the petitioner. The first respondent refused to pay any amount and the petitioner's father informed the Jamad that he will take care of both the children without any amount from the first respondent. But, the Adiyakkamanagalam Jamad by their letter dated 20.05.2007 instructed the parties to honour their undertaking within 15 days and informed the petitioner that since the respondent was not co-operating with the mediation, she can seek remedy in accordance with law and the Jamad will support her action.
7. The petitioner thereafter lodged a complaint with the Superintendent of police, Thiruvarur. The compliant was forwarded to the All Women Police Station, Tiruvarur. It is at this stage the respondent approached the petitioners parents asking for the custody of the minor son to him. Since the petitioner opposed that proposal, the respondent brought the maternal uncle of the petitioner to convince the petitioners parents. Their daughters were also married into the respondent's family and they had to oblige the respondent fearing the future marital life of their daughters.
8. The petitioner further stated that on 15.08.2008, the first respondent and the mediators visited the petitioners house and forced the parents of the petitioner to agree to the terms of the first respondent, otherwise the petitioners family will face serious consequences. The petitioner and her parents were compelled to sign an agreement brought in by the respondent following which the minor son was taken by force by the first respondent. Subsequently, an LIC policy for a sum of Rs.3 lakhs was given in the name of the petitioners girl child and the petitioner as her nominee. The respondent did not permit the petitioner to visit the minor son after 15.08.2008. With great difficulties, the petitioner was permitted to visit the minor boy only two times and that too in a park at Thanjavur. She found that the minor boy was harassed and assaulted. He expressed his desire to go with his mother i.e., the petitioner. During the visit of minor son on both the occasions, the custody of the girl child (who was hardly two years and 10 months) was kept as an hostage by the first respondent. It was also stated that as per Islamic law, guardianship rights of the minor child below 7 years will have to be with the mother.
9. The petitioner also stated that she is 22 years old and capable of bringing both the children. Her parents were also capable of taking care of her and her two children. It is also stated that the first respondent is an immoral person and was instrumental in separating the petitioner from the second respondent. She also stated that the whereabouts of the second respondent was not known. It is under these circumstances, the present petition came to be filed.
10. In the counter affidavit filed by the first respondent, it was stated that the first respondent is having the custody of the minor boy Arshath Ahamed during the absence of his father and natural guardian, the second respondent, who was away on employment. Since he has come back and staying with him at Thanjavur, they are entitled to have the custody of the minor child. They will look after his welfare and interest. It was only during his absence, the custody of the minor child was left to him. It was also stated after their marriage, the petitioner was living with their family. During that period, she used to go to Kodikalpalayam frequently, where her parents house was situated. They came to know that the petitioner was having an extra marital affair with one Gazzali of Kodikalpalayam. Thereafter, she had permanently left the matrimonial house and stayed with her parents and started living in continues adultery with that boy. The second respondent having no option gave the Triple Talaq on 12.07.2006 in accordance with their personal law. Thereafter, amounts were also sent for the maintenance of the petitoner during the Iddat by a demand draft on 26.03.2007. The same was given through the Jamad and divorce had come into force.
11. It was further stated that the second respondent has come back permanently to India. The petitioner had made a police complaint for the alleged demand of dowry. After an enquiry, her compliant was rejected by the police as the allegations made in the complaint were totally false. In the meantime, a settlement was also arrived at. As per the settlement, the respondent had deposited a sum of Rs.3 lakhs in LIC Property Plus Plan for the future security of the minor female child, with the petitioner being appointed as the nominee. Apart from that, he had handed over 104 gms of gold belonging to the petitioner and another 136 gms of gold were handed over to the petitioner. These terms have been reduced into writing before the All Women Police Station at Thiruvarur in the presence of witnesses. It is also stated though they want to have the custody of both the children, because of the terms of agreement, they have left the girl child in the custody of the petitioner. He is taking utmost interest of the welfare of the minor boy. He had also put him in a nursery school in Thanjavur and the boy is doing very well. It is stated that the petitioner's father is only an auto driver having meagre income. The first respondent and his son are living in a wealthy environment. Therefore, it is in the interest of the minor boy that the custody must be in the hands of the respondents.
12. It was also stated that under Section 17 of the GAWA, the child's interest is paramount. The child is studying in a reputed school and as per the agreement dated 15.08.2008 the petitioner has been given the visitation right which she is also making use of. Under these circumstances, the dismissal of the petition is prayed for by the respondents.
13. Pending the original petition, on 21.04.2009 this Court permitted visitation right to the mother but only on the condition that the minor girl should be left during the period with the first respondent in A.No.5738 of 2008. Though the petitioner filed an appeal against the order in O.S.A.No.141 of 2009, a Division Bench of this Court by its order dated 10.06.2009 dismissed the OSA stating that the arrangement of the custody with the respondent is only an interim measure and that she can move the court for early disposal of the original petition. It is under these circumstances the original petition came to be taken up.
14. The petitioner filed a proof affidavit dated 26.06.2009. she examined herself as P.W.1 . The evidence was recorded by this Court. Exs.P1 to P12 were marked. A copy of the order in O.S.A was also marked by her as Ex.R1. The first respondent examined himself as R.W.1. Exs.R2 to R19 were marked. Thereafter, the second respondent examined himself as R.W.2 and through him Exs.R18 to R26 were marked. Subsequent to the examination of two respondents, they also summoned R.W.3 and R.W.4 as witnesses on their side.
15. In the cross examination, she denied the allegation that her family is not capable of keeping the minor son as they were very poor. She also stated that the first respondent was a retired Government servant, but her two brother-in-laws were not doing any business. She also denied the suggestion that she had an affair with one Gazzali of her village. But she admitted that she went on a tour to Kutrallam along with her family and that Gazzali and his parents also accompanied them in that Tour. She also denied that she had accepted to give the male child to her father-in-law. She also denied the suggestion that Ex.P11 complaint was given only to get back her money and jewellery from the father-in-law and that Ex.P12 agreement was executed out of her free volition and pleasure. She also accepted her allegation that her father-in-law was found to be in a compromising position with a servant maid.
16. The first respondent examined himself as R.W.1 who also filed a proof affidavit dated 09.07.2009. He stated that it was wrong to state that the temporary custody was given to him. He stated that his son had studied upto 10 standard. At the time of marriage, his son was running a printing press and after his leaving India he came back on 02.06.2009. He admitted that the minor son did not attend the school for 59 days out of 126 days as per Ex.R14 as the child was not well. He also denied that the sickness was not due to longing for his mother.
17. The second respondent who got impleaded after evidence of witnesses were over has filed a proof affidavit dated 16.07.2009. He claimed that during his absence when he was in London, the first respondent took care of the minor son. Because of the adulterous relationship the petitioner had, he gave the 'Triple talaq' in accordance with their Personal Law. After the divorce, he left for London for employment during August 2006. His father rightfully had the interim custody of the child in his absence. He stated that he is having sufficient means to have the custody of the child. While he was in London, he was employed with M/s.Sports World and was paid salary on an hourly basis of 5.52 pounds. He has earned around Rs.50,000/-. He also worked in a readymade garment shop as a part time worker. He used to send money to his father. He denied that he was ever acting as a puppet in the hands of his father.
18. In his cross examination, he had stated that he did not remember the day when he left for London but at that time, the minor boy was 2 = years old and he stayed about 2 years and 9 months at London and during that period he did not visit India. He went to London on a visit visa. But it was not extended. He was in London as an illegal immigrant and as per Ex.R18 certificate issued in Chennai Airport the date shown is 02.06.2009. The certificate came to be issued because he lost his passport. He denied the suggestion that he went to London on a false passport with a false name. He did not produce the passport because he had lost it. He also agreed that he did not own any printing press in Thanjavur. He agreed that he studied only upto 10th standard. He also stated that except for the house in which they are living there is no other property near the bus stand for them. The two younger brothers are doing real estate business. During the cross examination, he could not remember and state as to where his minor son is studying.
19. The witness R.W.3 claims to be a member of an Human Rights and Consumer Rights organization. R.W.3 and R.W.4 were witnesses to Ex.P12 which according to them was not signed due to coercion. But in the cross examination he admitted that the petitioner did not want the minor male child to be handed over in the police Station. Similary R.W.4 spoke about Ex.R12 agreement to state that there was no coercion in signing the agreement.
20. After the evidence was closed and hearing arguments by both sides, orders were reserved on 06.08.2009. In the light of these factual matrix recorded, the question that arises for consideration is whether the petitioner is entitled to have the custody of the minor boy Arshat Ahamed as claimed in the O.P.
21. There is no dispute in the present case that the provisions of the GAWA will apply to the case of the parties. Even otherwise a custody of a muslim boy was sought by resorting to Habeas Corpus proceedings under
Article 226 of the Constitution of India, while holding that the proceedings under the Habeas Corpus cannot be adequate remedy, a Division Bench of this Court directed the muslim mother to move this Court with a petition under Section 17 of the GAWA vide its judgment reported in 1997 MLJ crl 503 [Nasheeda J.Bhavnagarwala v. The Commissioner of Police Madras, and others]. In paragraph 12, it was observed as follows:-
"12. ...... No doubt, true, it is, under the personal law of the parties-parties being Mohamedans the petitioner mother is entitled to custody of the alleged minor Mustafa till he completes seven years of age, as contemplated by Sec.352 as stated above. Likewise, the third respondent father is entitled to the custody of the alleged detenu Mustafa ever seven years of age. The custody of the alleged detenu, as stated above, will be available to the petitioner-mother and the third respondent father under Mohamedan Law. It is not as if the custody of the alleged minor Mustafa either by the petitioner-mother upto seven years or by the third respondent-father ever seven years is absolute in all eventualities and circumstances. The rights of either the petitioner mother of the third respondent father to the custody of the alleged minor detenu Mustafa may be deprived by consideration of questions of welfare of the minor. If the Paramount welfare of the minor, the alleged detenu demands the custody to be given to some other person, it can be so done under the salient provisions adumbrated under Sec.17 of the Guardian and Wards Act. On the salutory and settled principles of law, where the dictates of personal law indicate one course of action and considerations of the welfare of the minor indicate another, the former must be subordinated to the later."
(Emphasis added)
22. In the text book "Outlines of Muhammadan Law, edited by Tahir Mahmood and edited by Asaf A.A.Fyzee, Oxford University Press, 2008 edition, in pages 160 and 161 under the chapter 'Guardianship', it was noted as follows:
Guardianship (wilayat) may be (i) of the person, (ii) of property, and (iii) in marriage. In the first instance there is guardianship of the person. Guardians of property as such are rarely appointed in Islamic law; an executor (wasi) is the guardian of property. Guardianship in marriage is a species of wilayat and a marriage guardian is called wali.
I. Guardianship of Person In Indian law three periods of guardianship of minors have to be considered. A minor is (i) a person under 15 in Muslim law, (ii) a person under 18 under the Indian Majority Act, and (iii) a person under 21 who has a guardian appointed by the curt or who is under the superintendence of the Court of Wards.
In India, broadly speaking, a minor is a person who has not completed the age of eighteen years. In Muslim law minors between the ages of 15 and 18 can act independently of any guardian in marriage, dower and divorce. For instance, a Muslim wife of 16 may sue for divorce without the intervention of a guardian.
All applications for the appointment of a guardian of person or property of a minor must be made under the provisions of the Guardians and Wards Act 1890. The court will, if necessary, make the order consistently with the welfare of the minor. In making such order the court shall be guided by:
(a) what, consistently with the law to which the minor is subject, is for the welfare of the minor;
(b) age, sex and religion of the minor, the character and capacity of the proposed guardian, and the wishes of a deceased parent; and
(c) preference of the minor if sufficiently old to form a preference.
Mother The custody of an infant child belongs to the mother. This right is known as hidanat. The mother is entitled in Hanafi law to the custody of her male child till the age of 7 years and of her female child till puberty."
23. Similarly, in Mulla's Principles of Mahomedan Law, 19th Edition, in paras 349 and 350, under chapter XVIII Guardianship of Person and Property, it was noted as follows:-
"349. Application for appointment of guardian.-- All applications for the appointment of a guardian of the person or property or both of a minor are to be made under the Guardians and Wards Act, 1890.
Any person who is entitled to be a guardian by the Mahomedan law may act as such without any previous order of the Court. But there is nothing to prevent him from applying to the Court under the Guardians and Wards Act, that he may be appointed or declared a guardian under the Act. He is not bound to wait until his legal title or fitness to act as guardian is disputed by another person. The application for the appointment may be made not only by a person desirous of being (a) or claiming to be, the guardian of the minor, but also by any relative or friend of the minor, and in some cases by the Collector (s.8 of the Act). It should be in the form prescribed by sec.10 of the Act, and no order should be made unless notice of the application is given to persons interested in the minor (s.11 of the Act).
350. Power of Court to make order as to guardianship.-- When the Court is satisfied that it is for the welfare of a minor that an order should be made (1) appointing a guardian of his person or property, or both, or (2) declaring a person to be such guardian, the Court may make an order accordingly."
24. A division Bench of Kerala High Court presided by K.S.Radhakrishnan,J. (as he then was) vide its judgment reported in AIR 2005 KERALA 69 [Poolakkal Ayisakutty v. Parat Abdul Samad] dealt with the scope of the application of GAWA in relation to muslim parents. In paragraph 4, it was observed as follows:
"4. We are of the view when the question of the custody of the child is involved, the primary consideration which weigh with the Court is the welfare of the child. Legal position is well-settled by a catena of decisions of this Court 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, (2000) 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 matter involving sentimental attachment. Such a matter is to approached and tackled carefully. A balance has to be 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 herein before 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. Smt. Bashiran (AIR 1963 Raj 239); Salamat Ali v. Smt. Majjo Begum (AIR 1985 All 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)."
(Emphasis added)
25. In the present case, the counsel for the petitioner Ms.A.Arulmozhi contended that the boy being minor 5 = years old it is best that he be brought up by the mother. Considering the fact that she does not suffer from any disqualification and the attempt to tarnish her character was also not proved before this Court and the minor boy had been forcibly removed from her custody his custody must be given to the petitioner. She also submitted that the second respondent has no regular job and he had illegally attempted to migrate to United Kingdom, leaving the family in the lurch and therefore, custody cannot be given to him. Further the petitioners mother-in-law is no more and there is no women in the family to take care of the child. At least to that effect no evidence was let in about the congenial atmosphere for bringing up the child. On the contrary, the only attempt was made to show about their economic superiority rather than the welfare of the child and the emotional and other support that he may receive in the home of the second respondent.
26. She also placed reliance upon a judgment of the Andhra Pradesh High Court in AIR 1984 AP 1 [S.Rehan Fatima v. Syed Badinudin Pariviz]. It was held that mother is entitled to the custody of the minor in view of paramount consideration of welfare of minor and principles of Muslim Law applicable to Hanafi Muslims, notwithstanding the fact she has been divorced by her husband. In that case, it was held that even if she marries a second husband, then she will lose the custody of the child.
27. The learned counsel also placed reliance upon the judgment of the Allahabad High Court reported in AIR 2008 Allahabad 140 [Laxman v. Smt.Savita Devi and anr] wherein it has been held that when father or mother, being natural guardian are available, the balance of convenience should be only in favour of natural guardian that is the mother and the grand father and grand mother cannot have such custody.
28. Further reliance was also placed upon another judgment of the Allahabad High Court reported in AIR 1985 Allahabad 217 [Mohd.Yunus v. Smt.Shamshad Bano] to the effect that the financial superiority of one side cannot be put against the other side and the mother can still have the custody.
29. Per contra, Mr.Kumaragurubaran, the learned counsel for the respondents strenuously contended that the petitioner being the mother is not suited for having the custody. On the other hand, the second respondent has come back from United Kingdom and the child is also going to a good school. Therefore, the child should not be disturbed. He also submitted that since the daughter is in the custody of the mother which they did not question, the boy must be allowed to be brought up with the grand father. The conduct and character of the petitioner is also not conducive for the child to to be brought up by her besides they are also economically weak and hence, the child must be in the custody of the respondents.
30. He placed reliance upon a judgment of this Court in Sharli Sunitha v. D.Balson reported in (2007) 1 MLJ 56. However, that case has no relevance and did not support the proposition of law advanced by the counsel for the respondents. The learned counsel also placed reliance upon another two decisions of this Court
i)J.Selvan v. N.Punidha reported in 2007(4) CTC 565
ii) C.V.Ananth Padmanabhan v. Bindu reported in (2008) 7 MLJ 22.
In both the cases, the Court went into the parameters for giving the guardianship and applied the theory of what is in the best interest of the child. In the second decision, this Court held that that material consideration will have only a secondary preference and more important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child's own character, personality and talents.
31. The learned counsel also relied upon a judgment of the Supreme Court in Nil Ratan Kundu and Another v. Abhijit Kundu reported in (2008) 9 SCC 413. In paragraph 52, the Court dealt with the principles governing the custody of minor children which is as follows:
"52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a childs ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor."
(Emphasis added)
32. Very recently, the Supreme Court in Anjali Kapoor(smt) v. Rajiv Baijal reported in (2009) 7 SCC 322, after referring to the decisions of the Courts in U.K., American and Newzealand in this regard quoted those decisions with approval which is found in Paragraphs 19 to 21, and they are as follows:-
"19.In McGrath (infants), Re, 1893(1)Ch 143:62 LJ Ch 208 (CA), it was observed that, "...The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, or by physical comfort only. The word welfare must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded".
20. In American Jurisprudence, 2nd Edn.,Vol.39, it is stated that an application by a parent, through the medium of a habeas corpus proceeding, for custody of a child is addressed to the discretion of the Court, and custody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a change of custody. In determining whether it will be for the best interest of a child to award its custody to the father or mother, the Court may properly consult the child, if it has sufficient judgment."
21.In Walker v. Walker & Harrison, 1981 New Ze Recent Law 257, the New Zealand Court (cited by British Law Commission, Working Paper No.96) stated that "welfare" is an all-encompassing word. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child's own character, personality and talents."
(Emphasis added)
33. The Supreme Court vide its judgment reported in (2009) 1 SCC 42 [Gaurav Nagpal v. Sumedha Nagpal] gave certain directions to all the Courts in resolving the demands made by the parents. In paragraphs 50 and 51, it was observed as follows:
"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 Motra Ganguli case, 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."
(Emphasis added)
34. If it is seen in the light of the legal precedents and the factual matrix of the case, it can be held that the petitioner does not suffer from any disqualification. On the contrary, the second respondent who does not have any permanent job and was in the process of going around the world in securing an employment cannot be said to be a good guardian for the minor child. Further the petitioners mother-in-law is no more and therefore, in the absence of any female relatives in the house, the question of grant of custody to the respondents may not arise. Whereas the petitioner is having both her mother and and also has sisters and brothers. She herself can take care of the child. Her poverty or economic status cannot be put against her in bringing up the child.
35. Reliance placed upon the agreement in Ex.P12 has no legal sanctity and any such private arrangement between the parties cannot be put against the statute (GAWA) and the paramount consideration can only be what is the best interest of the child. In the present case, the second respondent has came on record only at the closing of the evidence and had tried to claim the right over his child. He had left the child in the custody of his father, the first respondent without even informing the petitioner. He left for a foreign country for about three years. He also admitted that he does not have good job even in the foreign country and was employed on daily rated basis. In the absence of his producing his original passport, the allegation that he had smuggled himself into a foreign country cannot be simply brushed aside.
36. In any event, the Court will have to consider what is in the best interest of the child. Therefore, this Court is of the opinion that the custody should be given to the mother, namely the petitioner. Further the second respondent being the father is bound to contribute to the welfare and growth of the child if any demand is made by the petitioner. Infact, the second respondent being the father, without making any demand by the petitioner is bound to pay towards the welfare of the two minor children.
37. In the light of the above, this original petition is allowed. The respondent is hereby directed to hand over the minor boy Arshat Ahamed within a period of two weeks from the date of receipt of a copy of this order. If the petitioner has any difficulty with reference to paying of school fees and other essential expenditure for the minor boy, she is entitled to seek for appropriate maintenance claim against the second respondent. However, there will be no order as to costs. Consequently, connected miscellaneous petition is closed.
38. Though the custody of the minor is handed over to the petitioner, the second respondent being the father is entitled to have visitation right over the minor. If he desires he can visit the child once a month on a weekly holiday between 10.00 a.m. and 5.00 p.m. after due notice to the petitioner. The meeting may also be arranged in a neutral place in the village where the petitioner resides.
02.12.2009 svki Index:Yes/No Internet:Yes/No K.CHANDRU,J.
svki Pre-Delivery Order in O.P.No.777 of 2008 02.12.2009