Court No. - 19 Case :- FIRST APPEAL FROM ORDER No. - 3046 of 2009 Petitioner :- Jainab Khatoon @ Tahira Respondent :- Abdul Ahad Petitioner Counsel :- Smt. Kamla Singh,Rajesh Yadav Respondent Counsel :- Gajendra Pratap,Ashok Singh,Rama Nand Pandey,Shiv Nath Singh Hon'ble Sanjay Misra,J.
Heard Smt. Kamla Singh learned counsel for the appellant
namely Smt. Jainab Khatoon and Sri Shiv Nath Singh along with Sri
Ramanand Pande for the respondent namely Sri Abdul Ahad.
This First Appeal From Order has been filed under Section 47(a)
of the Guardianship and Awards Act 1890 by the appellant who is
admittedly the mother of the children. It is also stated that the
respondent Sri Abdul Ahad has divorced the appellant Smt. Jainab
Khatoon @ Tahira where against according to the appellant
proceedings are pending before the competent court and according to
the respondent no such proceeding is pending.
The children are three sons namely Abdurahman, Udaiburahman
and Anisurahman aged about 13 years, 11 years and 10 years
respectively. The children are at present in the custody of their mother
and by the impugned order dated 8.7.2008 they have been directed to
be given in the guardianship of the father Sri Abdul Ahad.
It is also admitted that the father Abdul Ahad is a teacher in
English Literature in the Indian Embassy School in Saudi Arabia and
the mother is living in her parents village within the district of Siddharth
Nagar in the State of U.P. While considering issue of guardianship the
court below has issued the following directions-
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foi{kh Jherh tSur [kkrwu mQZ rkfgjk dks vknsf’kr fd;k tkrk gS fd mijksDr
ckydksa dks izkFkhZ vCnqy vgn dh vfHkj{kk esa ns nsAa
2vCnqy vgn dks ;g vknsf’kr fd;k tkrk gS fd mijksDr ckydksa dks ,sls
fo|ky; esa mfpr d{kkvksa esa izos’k fnyk;sa tks Hkkjr esa gks] rFkk mlesa bu cPpksa ds
jgus o f’k{kk o LokLF; dh ns[kHkky dh mfpr O;oLFkk gksA vCnqy vgn mijksDr
cPpksa ds Hkj.k iks”k.k] f’k{kk nh{kk o LokLF; dh leqfpr O;oLFkk djsxsa rFkk ,d ekg
ds Hkhrj cPpksa ds fo|ky; dk ikB;dze o vU; lqfo/kkvksa ls lacfa /kr vfHkys[kh;
lk{; U;k;ky; esa izLrqr djsxasA bu ckydksa dks U;k;ky; dh vuqefr ds oxSj ns’k ds
ckgj ugha ys tk;k tk;sxk vkSj Jherh TkSuc [kkrwu mQZ rkfgjk vodk’k ds fnukas esa
mijksDr ckydksa ls muds fo|ky; esa fey ldrh gS rFkk R;ksgkjksa ij vUgsa migkj Hkh
ns ldrh gSaA xzh”edkyhu vodk’k o ‘khrdkyhu vodk’k esa Jherh tSuc [kkrwu mQZ
rkfgjk bu cPpksa dks 10 fnu ds fy;s vius lkFk Hkh j[k ldrh gSaS izek.ki= tkjh
fd;k tk;A i=koyh okLrs vfxze vkns’k fnukad 15-9-2008 dks izzLrqr gksA
fnukad%&18-7-08 Mh0 ,u0 ‘kqDy
fo’ks”k@vij ftyk ,oa l= U;k;k/kh’k]
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fu.kZ; vkt [kqys U;k;ky; esa esjs }kjk gLrk{kfjr] fnukafdr ,oa lquk;k x;kA
fnukad%&18-7-08
Mh0 ,u0 ‘kqDy
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From the aforesaid directions it is quite apparent that the welfare
of the children was kept in mind by the court wherein it provided for the
education and other requirements of the three children.
It appears from the submission made by learned counsels that
the objection of the mother is the handing over of the children in the
guardianship of the father.
In the submission made by Smt. Kamla Singh she has tried to
impress the court that the children are studying in a good school in
Siddharth Nagar and are living with the mother comfortably whereas
Sri Shiv Nath Singh has made a submission by mentioning various
schools having boarding facility in New Delhi and other cities of the
State where he is prepared to provide better facility of education to the
children.
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The court below required the father to give details of the
institution and the syllabus taught therein where he would like the
children to be admitted for their education and that it should be a
boarding school. It was at this stage that this first appeal from order
has been filed and an interim order is operating since 18.8.2008.
In view of the circumstances the objection of the appellant
(mother) is primarily that the children should live with her in the village
at Siddharth Nagar and receive education in the schools available
nearby whereas the father namely Sri Abdul Ahad wants the children to
study in a boarding school of repute. The Trial Court has taken a
decision and has ordered that the father should submit a list of
institutions along with the syllabus and boarding facilities to the Trial
Court to enable it to decide whether the children should be sent to the
school suggested by the father. Since the proceedings have been
pending in this court and an interim order is operating none of the
directions of the Trial Court have been able to be complied with.
Consequently when the Trial Court if in effect monitoring the
welfare of the children it would be appropriate that the Trial Court
should decide the institution where the children are required to study. It
goes without saying that the father namely Sri Abdul Ahad has been
made responsible for the entire expenses to be incurred upon the
children and the mother is not liable to meet such expenses.
It is expected that the Trial Court shall take a positive decision
before the start of the next academic session of the institution it
selects.
In view of the aforesaid circumstances when the welfare of the
children is paramount no illegality can be found in the impugned order
hence without interfering in the impugned order this First Appeal From
Order is disposed of with a direction to the parties to comply with the
direction given by the Trial Court, as quoted above, and appear before
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the Trial Court either in person or through counsel on 15.2.2010.
No order is passed as to costs.
Order dated: 18.01.2010
Pravin