Arafathunnisa v. T.I. Zeeyavudeen

In the High Court of Judicature at MadrasDated 03.12.2010CoramThe Honourable Mr.Justice R.SUBBIAHCivil Miscellaneous Appeal No.3040 of 2008and M.P.Nos.1/2008 and 1 and 2/2010Arafathunnisa..Appellant..vs..1. T.I.Zeeyavudeen2. Taraja Beevi3. Mohammed Yasin..RespondentsCivil Miscellaneous Appeal filed under Section 47 of theGuardian and Wards Act, against the order and decretal order dated11.07.2008 made in GWOP.No.9 of 2008, on the file of Sub Court atTiruvarur.For Appellant : Mrs.Hema Sampath, Senior Counsel for Mr.Srinath SridevanFor Respondents: Mr.R.Subramanian for R1JUDGMENTThis appeal is filed by the wife as against the order anddecretal order dated 11.07.2008 passed by the learned SubordinateJudge, Tiruvarur, in G.W.O.P.No.9 of 2008, whereby the originalpetition filed by the 1st respondent/husband, seeking the custodyof the minor female child, was allowed.2. The short facts, which are necessary to decide the issueinvolved in the appeal, are as follows:The appellant and the 1st respondent got married under MuslimLaw and out of the wedlock, the appellant gave birth to a femalechild, by name, Ariz Fathima on 18.07.1998. It is the case of the1st respondent/husband that the appellant/ wife was not in a soundmind even prior to the marriage and he came to know the same onlyafter the marriage and she was taking treatment for the same withdifferent psychiatrists. While so, the appellant started torturingthe child whenever she was affected by Hysteria. On 27.01.2000, theappellant left the matrimonial home at Thirunageswaram near https://hcservices.ecourts.gov.in/hcservices/ Kumbakonam to her mother's place at Chidambaram. All the effortstaken by the elders to pacify the appellant ended in futile. Theappellant did not return to the matrimonial home till July 2000 andhence, a complaint was made to Chidambaram Jamath by the 1strespondent. Thereafter, the child was handed over to the 1strespondent on 28.07.2000 by the Chidambaram Jamath and she was inthe custody of the 1st respondent/husband from 28.07.2000 to15.12.2006. In the said situation, the appellant rejoined the 1strespondent on 11.05.2003; but she once again left the matrimonialhome, leaving the child at Thirunageswaram and attempts made by thejamayathdars to unite the couple failed. Hence, the 1st respondentfiled a suit in O.S.109 of 2006 on the file of Sub Court,Kumbakonam, for restitution of conjugal rights and the suit wasdecreed on 11.09.2007. In the meantime, on 15.02.2006, theappellant visited the minor's school and took away the child,without the knowledge of the 1st respondent. Subsequently, acomplaint was lodged to the police by the 1st respondent. Inpursuance of the same, a writ petition was filed by the appellantin W.P.No.5043 of 2006 forbearing the Inspector of Police,Kumbakonam, from acting on the complaint made by the 1strespondent. But, ultimately, the said writ petition was dismissedon 23.02.2006. Finally, the 1st respondent has filed the guardianoriginal petition to have the custody of the minor child.3. The case of the 1st respondent was resisted by theappellant stating that the 1st respondent and his family memberswere always demanding dowry and getting more jewels, 'seer'articles and cash from the appellant. The 1st respondent's motherwas very much interested in dowry and as such, she instigated the1st respondent to harass the appellant. The 1st respondent's motherand family members used to scold the appellant in the filthylanguage and they went to the extent of beating her and she was notprovided with basic needs such as dress, food, etc. The appellantemphatically denied the allegation made by the 1st respondent thatfrequently she was affected by hysteria. Further, the custody ofthe minor girl under the Mohammaden Law should be only with themother till she attains puberty. Since the appellant is notdisqualified with the custody of the minor, the 1st respondent isnot entitled to the relief sought for. Thus, she prayed for thedismissal of the petition.4. On the side of the 1st respondent, he examined himself asP.W.1 besides examining one Abdul Ajeez as P.W.2 and marked Exs.P-1to 61 and on the side of the wife, the appellant examined herselfas R.W.1 besides examining R.Ws.2 and 3 and marked Exs.R-1 to R-9and seven other documents were marked. The trial court, afterconsidering the entire evidence, has allowed the original petitionand directed the appellant to hand over the custody of the child tothe 1st respondent. Aggrieved over the same, the present appeal hasbeen filed by the wife. https://hcservices.ecourts.gov.in/hcservices/

5. Pending appeal, on 30.09.2010, the appellant got re-marriedanother person and the second marriage of the appellant wasadmitted by both sides. Hence, in view of the changedcircumstances, the submissions were made by the learned counsel oneither side as to whether the appellant is entitled to have thecustody of the minor child after second marriage, under MohammadenLaw.6. In view of the said circumstances, this Court is of theopinion that there is no need to discuss the merit of the order indetail, which was passed prior to the second marriage of theappellant.7. Learned Senior Counsel for the appellant/wife submittedthat under the Muslim Personal Law, the mother of the female minorchild is entitled to have the custody of the minor till the minorattains puberty and, as such, the second marriage is not a bar tohave the custody of the child by the mother. By inviting theattention of this Court to the reasonings given in the order, thelearned senior counsel further submitted that the trial court, byrelying upon Shia Law has come to the conclusion that the mother isentitled to have custody of the child till he/she completes the ageof seven years and thereafter the custody goes to the father.Attacking the said finding, the learned senior counsel submittedthat the parties to the proceedings belonged to Hanafi Law and assuch, the provisions under Shia Law cannot be made applicable tothe parties. Under the Hanafi Law, the appellant is entitled tohave the custody of the female till she attains the age ofpuberty. In support of her contentions, the learned senior counselhas also relied upon the judgments reported in AIR 1988 KERALA 30(SUHARABI ..v.. D.MUHAMMED), AIR 1986 ALLAHABAD 314 (KHURSHIDGAUHAR ..vs.. SIDDIQUNNISA), AIR 2005 M.P.141 (WAZID ALI ..vs.REHANA ANJUM) and (1993) 2 SCC 6 (CHANDRAKALA MENON ..vs.. VIPINMENON (CAPT). Further, the learned senior counsel submitted that onmerits, the court below has come to the conclusion that theallegation of the 1st respondent that the appellant used to develophysteria is not correct. When that being so, there cannot be anyimpediment in ordering the custody of the child with the mother.8. Per contra, the learned counsel for the 1st respondent/husband, by relying upon the judgment reported in AIR (39) 1952MADRAS 280 (MIR MOHAMED BAHAUDDIN ..vs.. MUJEE BUNNISA BEGUM)submitted that under the Mohammadan Law, when mother marries astranger as her second husband, the custody of the child should notbe entrusted with her. The learned counsel for the 1st respondentfurther submitted that this position was made clear in a number ofjudgments and also relied on the judgments reported in 2007(4) CTC566 (SELVAN, J .vs.. N.PUNIDHA), (2008) 7 SCC 673 (MAUSAMI MOITRAGANGULI ..vs. JAYANT GANGULI) and 2007(5) BOM CR 36 (SYYAD https://hcservices.ecourts.gov.in/hcservices/ SABDARALI SY.NYAJALI ..vs.. SHAHISTABEGUM). Further, the learnedcounsel submitted that while ordering custody, paramount interestof the child should be taken into consideration. The 1strespondent/husband is a businessman and is an income tax assesseeand his family owns a business in betel nut in Kumbakonam under thebrand name "Kani Seeval" and is having all the financial status tolook after the child comfortably, whereas the father of theappellant is living at Bangkok and he has not taken any effort tosettle the issues relating to the marriage of the appellant andthis fact was also admitted by the mother of the appellant when shewas examined as R.W.3 before the trial court. In that situation,the appeal filed by the appellant has to be dismissed.9. In view of the submissions made by the learned counsel oneither side, now the question that arises for consideration is,whether the appellant is entitled to have the custody of the minorfemale child after her second marriage. It is the contention of theappellant that under the Muslim Personal law, the mother of thefemale child is entitled to have the custody of the minor childtill she attains puberty. She has also relied on number ofjudgments in support of her contention. In fact, there is nodispute about the proposition. But at the same time, the questionthat has to be decided in this matter is that whether a women, whomarries for a second time, is entitled to have the custody of theminor child till she attains puberty ? For this, the judgmentsrelied on by the learned counsel for the 1st respondent/husband aregiving a fitting answer. In AIR (39) 1952 Madras 280 (supra), whichis similar in nature to the facts of this case, it has been heldas follows:"(7) ....Though it cannot be stated that however unsuitable thefather may be, he may be appointed in preference to themother, or any other near relation or stranger, certainlythe mother, who has chosen to leave the father-though inthis case under alleged ill-treatment-is not the person towhom the child could be entrusted, since it is unlikely thata woman who has married a second husband would be in aposition to pay as much attention to the upkeep and well-being of the child as she would, if she had not taken to asecond husband. It cannot be denied that she is answerableto the husband primarily and to look after his comforts andanswer his behests and whatever attention she may bestow onthe child could only be after she has been of such serviceto the second husband as he would require. In my view,unless the father is totally unsuitable, or there is anyother relation who would take charge of the child, themother who has married a second husband, is not at all theperson to whom the child of the first marriage should beentrusted. It would be impossible for her under her changedcircumstances to look after the child and care for her well- https://hcservices.ecourts.gov.in/hcservices/ being".10. In AIR 1986 ALLAHABAD 314 (supra), the decision relied onby the appellant, in para 12, it has been stated as follows:"12. Further, Mulla in his commentary on Mohammedan Lawhas in S.354 specified the grounds when a female becomesdisqualified for the custody of a child. These have been setout as:"(1) if she marries a person not related to the childwithin the prohibited degrees (Ss.260-261) e.g.astranger, but the right revives on the dissolution ofthe marriage by death or divorce; or(2) if she goes and resides, during thesubsistence of the marriage, at a distance from thefather's place of residence; or(3) if she is leading an immoral life, as whereshe is a prostitute; or(4) if she neglects to take proper care of thechild".11. In 2007 (5) Bom CR 36 (supra), it has been stated asfollows:"9. There cannot be duality of opinion that welfare ofthe child is the most significant criteria to be appliedwhile considering the question of custody. The fitness ofperson seeking custody is also one of the important aspect.In this case, the mother is partly fit in the sense that shehas not remarried and has natural love and affection for thechildren. So also, the father is partly fit in the sense thathe too has not remarried and has financial capacity toprovide better education to the children. It appears from theaffidavit of the father and photographs produced by him thatShahistabegum is residing in a hutment locality at smallplace i.e.Faizpur. The appellant-Sayyad Sabdarali isgainfully self employed person. He has shown readiness toprovide better educational facility to the children".12. In 2007 (4) CTC 566 (supra), this Court has stated asfollows:"12. It is by now well settled that in all suchmatters, the interest and welfare of the minor children areof paramount importance, rather than the conflicting claimsand interests of the parents. The right of the parents isnot what is to be decided in these Applications, but theright of the children to have a healthy environment and aphysical, emotional and financial support for thedevelopment of their integrated personality, that is to bedecided in these Applications". https://hcservices.ecourts.gov.in/hcservices/

13. A combined reading of all the judgments would show that ifa woman marries a person not related to the child within aprohibited degree i.e.a stranger, it is a disqualification underthe Mohammedan Law to have the custody of the child. Though underthe Mohammedan Law she is entitled to have the child till sheattains puberty, since the mother had married a stranger secondlyshe is not entitled to have the custody of the child. Moreover, theparamount interest and the welfare of the child are criteria tohave the custody of the child. In the instant case, the evidence onrecord would show that the 1st respondent is in a sound financialposition to give all comforts to the child. 14. Moreover, before this Court, the child was produced ontwo occasions i.e.on 11.01.2010 and on 08.11.2010. When the childwas produced before this Court on 11.01.2010, i.e.before the secondmarriage of the appellant, this Court observed that the minor childappeared to be normal; but subsequent to the second marriage whenshe was produced before this Court on 08.11.2010, it is found thatshe was psychologically upset and was continuously crying.Considering all the legal position and other aspects, this Court isof the opinion that the custody of the minor child should be withthe 1st respondent/father. Further, it was brought to the notice ofthis Court that presently the minor child is with theappellant/wife and under such circumstances, the appellant/wife isdirected to hand over the custody of the child forthwith to the 1strespondent/father; however, the appellant is entitled to visit thechild during the first week-end of every month from December, 2010.In view of the second marriage, the order of the trial court ismodified to the effect that the appellant can have the custody ofthe child during quarterly leave, Christmas holidays and first oneweek of the Summer Holidays.With the above observations, the civil miscellaneous appeal isdisposed of. No costs. Consequently, connected M.Ps.are closed.glSd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe Subordinate Judge, Tiruvarur.+ 1 cc to Mr.V.G. Suresh Kumar, Advocate SR No.86627MDR(CO)SR/6.12.2010 judgment in C.M.A.No.3040 of 2008