JUDGMENT
V.R. Kingaonkar, J.
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1. This appeal arises out of Judgment rendered by IVth Ad-hoc Additional District Judge, Jalgaon in an application (Misc.C.A.No.108 of 2005) for appointment of guardian and custody of minors. Appellant – Sayyad Sabdarali was original opponent No. 1 before the trial Court. Respondent No. 1 – Shahistabegum is the original applicant. For sake of convenience, I shall refer to the parties by their first names.
2. Somewhere in 1995, marriage between Shahistabegum and Sayyad Sabdarali was performed in accordance with tenets of Mohammedan law. The couple was residing together uptill May, 2005. During their consortium of ten years, Shahistabegum delivered in all seven children, out of which three are surviving. They are : Sayyad Danish, Sayyad Talib and Sayyad Tabij. At the time of filing the application, these minors were aged 7 years, 4 years and 2 years respectively.
3. The spouses are incompatible. The wife is residing with her parents at Faizpur (Taluka Yawal). She asserted that the husband reached her alongwith the three minor sons to her maternal house in May 2005. She was illtreated by him. He is short tempered and rude. He used to physically assault her while she was residing with him. She lodged complaint of illtreatment against him. He had taken away the minor sons on 1.6.2005 from her custody. She submitted an application for her appointment as guardian and claimed custody of the minor sons. She asserted that the husband – Sayyad Sabdarali works for whole day and has neglected the minors. She further asserted that for welfare of the minors, their custody should be given to her.
4. Sabdarali resisted the application. He denied truth into the allegation regarding illtreatment caused to the wife. He contended that he runs a marble shop and S.T.D. booth and is owner of 6 acres agricultural land and as such is capable of properly maintaining the minors. He asserted that Shahistabegum is at mercy of her brother and has no financial support. He further asserted that he is fit to look after the welfare of the minors whereas, the wife i.e. Shahistabegum is residing with her parents in Indiranagar hutment locality where the surrounding is improper for development of the minors. He further contended that the allegations of cruelty and illtreament are unfounded. He alleged that Shahistabegum was previously employed as a Beedi worker at Burhanpur and had suffered illness, which incapacitated her to earn livelihood and look after the children. He submitted that the minors were being properly educated and looked after by him. He, therefore, urged for dismissal of the application.
5. The interim custody of the minors was given to original applicant – Shahistabegum as per order dated 10.8.2005.
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6. The parties adduced necessary evidence on record in support of the rival contentions. The learned IVth Ad-hoc Additional District Judge raised a single point for determination as below:
Whether the applicant (Shahistabegum) is a fit person for appointment as a guardian for non-applicant Nos.1 to 4 and whether she is entitled to get the custody of the children ?
The learned Judge answered the above point in the affirmative and directed that the three minors shall remain in permanent custody of the original applicant – Shahistabegum.
7. Feeling aggrieved, Sayyad Sabdarali has come up in appeal.
8. Mr. Katneshwarkar P.R., learned Advocate for the appellant would submit that welfare of the minors can be looked by the appellant. He would submit that at least one of the minors, namely, Sayyad Danish could have been given in the custody of appellant. It is argued that as per the Personal Law, the custody of child above 7 years of age shall be, ordinarily, with the father. He argued that the father is entitled to the custody when there is no evidence to show that there is likelihood of any illtreatment to the minor. He argued that appellant -Sayyad Sabdarali is financially capable of maintaining the minor sons whereas, applicant – Shahistabegum may not be able to provide proper education and other facilities to the children. It is argued that the appellant could not have been regarded as unfit person, when he has not remarried. Hence, Mr. Katneshwarkar urged to allow the appeal. As against this, Mr. J.R. Shaikh, learned Advocate appearing for the respondents, supported the impugned judgment. He would submit that conduct of Sayyad Sabdarali is not that of a prudent father. He would submit that the minors are unwilling to join company of the appellant. It is contended that custody of the children should not be given to the appellant because, he does not find time to look after the children and has neglected them as well illtreated the wife. Mr.Shaikh would submit that reasoning of the trial Court is quite proper. Hence, he urged to dismiss the appeal.
9. There cannot be duality of opinion that welfare of the child is the most significant criteria to be applied while considering the question of custody. The fitness of person seeking custody is also one of the important aspect. In this case, the mother is partly fit in the sense that she has not remarried and has natural love and affection for the children. So also, the father is partly fit in the sense that he too has not remarried and has financial capacity to provide better education to the children. It appears from the affidavit of the father and photographs produced by him that Shahistabegum is residing in a hutment locality at small place i.e. Faizpur. The appellant -Sayyad Sabdarali is gainfully self employed person. He has shown readiness to provide better educational facility to the children.
10. The trial Court held that because Shahistabegum resided with her parents for about couple of years after birth of Sayyad Danish, there is some substance in her contention that she was suffering from illness. This inference is based on surmises. The trial Court was much impressed by the fact that Sayyad Sabdarali objected transfer of Sayyad Danish from school at Varangaon. If his conduct is considered, it may be gathered that Page 1637 he was reluctant to give up custody of the minor. He wanted Sayyad Danish to be educated under his supervision. It is true that Sayyad Sabdarali resides in the house of his relative and his sister alongwith her children is also residing in the same house. Still, however, this fact would not disentitle him from claiming custody of his son. On the other hand, it can be said that Sayyad Danish would be in the company of other children and will not be isolated.
11. The trial Court held that the mother is a fit person because second marriage is very difficult task for her whereas, it is easy for Sayyad Sabdarali to get remarried. I fail to see any foundation for such conjectures. The fact on record is that he has not still remarried and is admittedly having better financial position as compared to Shahistabebum. He cannot be regarded as unfit person by any standard. 12. In the context of question pertaining to minor’s custody, the tenets of Personal Law and the provisions of the special enactment need to be considered together. The Personal Law of the parties cannot be totally ignored. The parties are governed by Mohammedan Law. On a true construction of the provisions of Section 17 and Section 25 of the Guardians and Wards Act, 1890, there cannot be any doubt that while appointing or declaring a guardian of a minor, the relevant factors such as age, sex, religion, character and capacity of the proposed guardian as well welfare of the minor are the significant factors. There is no dispute that in accordance with the principles of Mohammedan Law, which is the law applicable to the parties, it is the mother who is entitled to the custody of a male child until he has completed the age of 7 years or of a female child, until she attains puberty. This 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. If we refer to “Mulla’s Principles of Mohammedan Law”, 19th Edition, in Chapter XVIII under the Heading (B) Guardians of the Person of a Minor, para 352 at page 287 reads as under:
352. Right of mother to custody of infant children -The mother is entitled to the custody (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 (e), unless she married a second husband in which case the custody belongs to the father (f).
13. As stated before, the Personal Law of the parties, and requirements of the Guardians and Wards Act must be blended appropriately so as to ensure welfare of the minor while appointing a guardian. This Court, in Farjanbee w/o Sk. Syub v. Sk. Ayub Dadamiya 1989 Mh.L.J.373, held that under Muslim Law father is entitled to custody of a male child over 7 years of age. The mother has a right to claim custody of her male children only until they attain the age of 7 years. The father would be entitled to claim custody of such a male child, who is above 7 years of age, unless it is specifically shown that he is totally unfit due to some special reasons like his remarriage, or his being associated with anti social elements etc. That is not the case with appellant – Sayyad Sabdarali. He is a fit person to claim custody of at least Sayyad Danish, who is admittedly above 7 years of Page 1638 age. In case of Abdulsattar Husen Kudachikar v. Mrs. Shahina Abdulsattar Kudachikar , on which Mr.Shaikh relies, it is held that the custody of a child below 7 years would belong to the mother and she would be fit to keep the custody unless she has remarried. The father in that case was found to be engaged in a touring job and was required to leave his only son from his first wife to the care of his second wife in preference to the natural mother. That is not the fact situation in the present case. Though Sayyad Sabdarali is required to attend his business, yet he hardly is required to undertake any touring job at outstations. Secondly, he had admitted Sayyad Danish in a school at Varangaon when the child was in his custody. In other words, he had not left the child unattended or without education.
14. Mr. Shaikh seeks to rely on Mst. Bibi Saira Khatoon v. Mst. Bibi Shahidan Khatoon , Mohammed Jameel Ahmed Ansari v. Ishrath Sajeeda and Ors. AIR 1983 ANDHRA PRADESH, Hassan Bhat v. Ghulam Mohamad Bhat AIR 1961 JAMMU AND KASHMIR 5, Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi and Baby Sarojam v. S. Vijayakrishnan Nair . A common position of law declared in most of these authorities is that the welfare of the minor is the first and paramount consideration while determining the question of such custody matters. With due respect, the above cases stand on different footings of fact situation and hence, need not to be considered in detail.
15. Mr. Shaikh, would submit that the statements of the minor sons during the interview taken by this Court should be considered. He would submit that all the three minor sons are willing to continue their association with the mother and want to live with her. He would submit that the minors should not be deprived of natural love and affection of the mother. He contended that the minors would be mentally disturbed, if the custody is handed over to the appellant against their wish to remain with the mother. It may temporarily cause flutter and the minor may not be able to immediately adjust himself at house of the appellant but it does not mean that mere willingness of the minor would be dicisive factor. The concept of welfare of the minor cannot be pigeonholed to mere wish expressed by such a minor. The Court is not supposed to act as executor of the wish expressed by the minor. For, basically, the minor is incapable of taking his own decisions. There is always probability that he/she would be tutored by the parents or relatives with whom the custody is at the time of interview. The welfare of minor is multifaceted concept. It cannot be cribbed in a straight jacket formula.
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16. The facts in case of Farjanabi v. Sk. Ayub Dadamiya (supra) are somewhat similar to the facts of the present case. The custody of male child over seven years of age will have to be given to the father unless it is demonstrated that he has forfeited his right due to remarriage or other reason. The appellant has proved that he is a fit person. He is ready to furnish undertaking that he would provide better educational facilities to Sayyad Danish, who is above seven years of age. Therefore, it would be in the interest of minor -Sayyad Danish that his custody be with appellant -Sayyad Sabdarali. So far as other two minor sons are concerned, the appeal is not pressed into service in view of the fact that they are below seven years of age and would require natural love and affection of the mother.
17. To conclude, the appeal partly succeeds. The impugned order is unsustainable to the extent of denying custody of Sayyad Danish to the appellant Sayyad Sabdarali. The welfare of child – Sayyad Danish demands that he should have access to the mother though the custody needs to be with the father. In this view of the matter, I proceed to pass the following order: ” The appeal is partly allowed. Child -Sayyad Danish be given in custody of the appellant -Sayyad Sabdarali, if he would furnish an undertaking within one week to the effect that the child will be admitted in a standard school at Bhusawal or nereby area within peripherial limits of Bhusawal city and will be looked after well. The custody of the said child shall be handed over to the appellant in presence of Superintendent of the Court of Civil Judge (S.D.) at Bhusawal on 14th August 2007, if the undertaking is so furnished by the appellant prior to said date. The respondent No. 1 – Shahistabegum shall take the child to the Court of Civil Judge (S.D.), Bhusawal at 10:30 a.m. on the said day, and deliver the custody to the appellant between 11:00 a.m. to 1:00 p.m. She will be entitled to have access to the child – Sayyad Danish on each Sunday between 10:00 a.m. to 5:00 p.m. and for such purpose, the appellant shall temporarily handover the custody of the said child to the respondent No. 1, in the premises of the Civil Court (S.D.), Bhusawal between 9:30 a.m. to 10:00 a.m. and Shahistabegum shall return the custody of child – Sayyad Danish on the same day at 5:00 p.m. to the appellant in the Civil Court premises under supervision of any Clerical Staff member of the Civil Judge (S.D.), Bhusawal, who may be assigned the work by the learned Civil Judge (S.D.) for such purpose.
The appellant shall furnish xerox copy of progress card of Sayyad Danish to the mother of each quarterly/six monthly and annual examinations. The copy of this Judgment be forwarded to the learned Civil Judge (S.D.) Bhusawal, for taking appropriate action. The appeal is dismissed as regards claim for custody of other two minor sons, viz.,Sayyad Talib and Sayyad Tabij.
The parties to bear their own costs.