HON’BLE SRI JUSTICE R. SUBHASH REDDY AND HON’BLE SRI JUSTICE A. SHANKAR NARAYANA FAMILY COURT APPEAL No.47 of 2009 JUDGMENT: (Per Justice R. Subhash Reddy) This appeal is filed under Section 19 of the Family Courts Act, 1984 (for short ‘the Act’) by the petitioner in O.P.No.258 of 2005, aggrieved by the order dated 27.12.2008, dismissing the petition filed by him under Sections 10 and 25 of the Guardian and Wards Act, 1890, by the learned Judge, Family Court, Hyderabad.
2. The appellant herein filed the aforesaid O.P., with the following averments:
Marriage between him and the respondent was performed in Hyderabad on 23.10.2003 and they were blessed with a male child on 28.08.2004, who is named as Syed Abdul Malik. After the birth of the child, by showing indifferent attitude towards him, respondent left his company and started staying with her parents and his efforts to get her back to his company failed; he got notice dated 19.10.2004 issued to the respondent calling upon her to join his company. As the respondent gave reply on 25.10.2004 with false allegations, having no other option, he pronounced talaq before the Khaji and the same was intimated to the respondent by way of notice on 09.12.2004. Thereafter, the respondent filed criminal case against him which is registered as Cr.No.277 of 2004 on the file of Women Police Station, South Zone, Hyderabad, for the offences under Sections 498-A, 406 read with Section 34 IPC and Sections 4 and 6 of the Dowry Prohibition Act.
3. Further pleading that the respondent has not allowed him and his parents to see the child, the appellant herein prayed for the relief of appointing him as guardian to the minor child by filing the aforesaid O.P.
4. The said relief sought by the appellant herein was contested by the respondent before the Family Court by filing counter. In the counter, while denying the various allegations made by the appellant, the respondent made the following averments:
Right from the beginning, the appellant subjected her and her parents to cruelty by demanding more dowry and she was also driven out of the house. H e r jahez articles were also thrown in front of her parent’s house without her knowledge. She was deserted by the appellant who forced her to stay with her parents. The appellant is suffering from psychiatric disorder and only to avoid his legal liabilities and responsibilities, he got issued notice dated 19.10.2004, for which she gave reply expressing her readiness to join his company if he provides a separate house for them as there is danger to her life in the matrimonial home. The appellant has not shown any interest and did not take care of the child when he fell sick and he did not also meet the medical expenses of the child. The appellant has re-married on 13.11.2005 and was planning to take domicile in Pakistan.
5. Before the Family Court, the appellant herein was examined as P.W.1, his mother and father were examined as P.Ws.2 and 3 and documentary evidence – P.1 to P.5 were marked. On behalf of the respondents, R.Ws.1 to 3 were examined on her behalf and Exs.R.1 to R.13 were marked.
6. The Family Court, by appreciating the oral and documentary evidence on record, dismissed the O.P., filed by the appellant herein, by the impugned order, by recording a finding that right from birth, the child was brought up by the respondent for the last about 6 years. The Family Court, recording further finding that the appellant herein has already re-married and fathered two children through his second wife, rejected the claim of the appellant by dismissing the O.P., by the impugned order.
7. Heard learned counsel for the appellant and the learned counsel for the respondent and perused the material on record.
8. In this appeal, it is contended by the learned counsel for the appellant that in view of the provision under Section 352 of the Mulla’s Principles of Mahomedan Law (for short ‘Mahomedan Law’), mother is entitled to the custody of her minor child until he has completed the age of 7 years and as the child has completed the age of 7 years, now, the appellant is entitled to the custody of the child.
9. On the other hand, it is submitted by the learned counsel for the respondent that since the birth of the child, respondent has taken care of him and is taking care of him very well and also admitted him in Royale Mission High School, Charminar, Hyderabad. It is further submitted that at no point of time appellant has cared for the welfare of the child and did not also spend any amount on the child and he failed to look after the child when he fell sick and was admitted in Aditya hospital; the provision under Section 352 of the Mohamedan Law will not confer any right on the appellant and ultimately welfare of the child is the paramount consideration in deciding the O.P., filed by the appellant, claiming custody of the child. Lastly, it is submitted that as the child is being taken care of well in all respects by the mother and right from birth the child is staying with the mother, the welfare of the child is well-protected with the mother. In support of his submissions, learned counsel has relied on a Division Bench judgment of this Court, in which one of us is a party, in the case of Saif ul Islam Habeeb Ali v. Asma
[1]
Begum .
10. Facts which are not in dispute are that the marriage between the appellant and the respondent was performed on 23.10.2003 and a male child was born to them on 28.08.2004. It is clear from the evidence of P.Ws.1 to 3 that the appellant contracted second marriage and also fathered two children through his second wife. There is also no certainty as regards the income of the appellant. Whereas it is stated by the appellant as P.W.1 that he is getting Rs.3,000/- per month, P.W.2, the mother of the appellant, stated that he is getting Rs.15,000/- per month and P.W.3 stated that the appellant is working as cashier in Hotel Golden Palace, Attapur and earning Rs.8,000/- per month. It is also clear from the evidence on record that the minor child of the appellant and the respondent was admitted in Aditya hospital and there is no proof that the appellant has spent any amount towards the welfare and well-being of the child. Interpreting the very provision under Section 352 of the Mohamedan Law, in the case of Saif ul Islam Habeeb Ali (cited above) this Court has held that father’s claim for right of custody under Section 352 of the Mohamedan Law is not absolute, and, ultimately, while considering the petition seeking custody of the child, paramount consideration has to be given to the welfare and well-being of the child. Further, the learned counsel for the respondent has produced receipts in proof of payment of school fees of the child by the respondent in Royale Mission High School, Charminar, Hyderabad. On the other hand, the appellant has not produced any material in proof of his spending any amount right from the birth of the child. Furthermore, in the case of Lekha v. P.
[2]
Anil Kumar the Hon’ble Supreme Court has held that paramount consideration in granting custody of minor child should be in the interests and welfare of the child. In the instant case, having regard to the totality of the evidence on record, it is clear that right from the birth of the child, he has been staying with the mother, who has admitted him in school and is taking good care of him. It is also to be noted that the appellant has contracted second marriage after pronouncing talaq to the respondent and also begot two children from the second marriage, as such, we are of the considered view that the appellant is not entitled for any custody of the child and feel that interests of the child would be protected by continuing his custody with his mother.
11. For the aforesaid reasons, we do not find any merit in this appeal so as to interfere with the impugned order.
12. The Appeal is accordingly dismissed. As a sequel, miscellaneous petitions if any pending in this appeal stand closed. No order as to costs.
R. SUBHASH REDDY, J A. SHANKAR NARAYANA, J July 4, 2014 MRR
[1] 2013 (6) ALT 641 (D.B.)
[2] (2006) 13 SCC 555