IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 5.05.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH ORIGINAL PETITION No.201 OF 2009 Rashida Patel .. Petitioner -Vs- Yusuf .. Respondent Original Petition filed under Sections 3, 7 to 10 of the Guardians and Wards Act, 1890 and Order XXI Rules 2 and 3 of O.S.Rules, 1956 praying to declare the petitioner as the guardian of the person of the minor Maria Yusuf Khasamwala. For petitioner : Mr. C.Manishankar For respondent : Mrs.Sudha Ramalingam ORDER This Original Petition has been filed to declare the petitioner as the guardian of the person of the minor, Maria Yusuf Khasamwala. 2. The brief averments of the petitioner in the original petition are as follows: (a) The petitioner is the wife of the respondent. She married the respondent on 28.9.2002 at Mumbai. Due to wedlock, a girl baby was born to them on 3.10.2004. Her marriage with the respondent ended in divorce on 8.2.2008. The divorce was by Talaq Alsinha. Although the respondent is the father, the petitioner as a mother in preference to the respondent is entitled to the custody of the minor till the minor attains puberty. The petitioner states that she could better care of the minor daughter than the respondent. (b) The petitioner and the respondent met for the first time in a function at Bangalore and kept in touch thereafter. They decided to get married. However, there was strong objection from the respondent's family as according to the respondent's family, the petitioner did not hail from the family which could match the respondents' status. Since the petitioner and the respondent were firm in getting married, the respondent's parents finally agreed. After marriage the respondent's parents' did not treat her properly. The respondent also did not take care of even basic expenses. The respondent and his parents failed to show care, love and affection towards the minor. The respondent used to beat and abuse the petitioner in front of the child. The respondent did not even care to spend on medicines and doctor's fees for the minor. The said expenses was borne by the petitioner and her parents. The respondent's parents did not come and see the child when she was born and the petitioner was staying with her parents for almost 4 1/2 months and they did not invite the petitioner to come back. On the other hand, the petitioner left on her own to join the respondent. Since the respondent failed to support and to provide the minimum needs of the petitioner and the minor child, the petitioner took up employment when the child was two years old. The respondent even went to the extent of making character assassination. The respondent used to abuse the petitioner and indulge in beating her very often which led to the divorce between the petitioner and the respondent. In the divorce certificate, it is stated that the minor was allowed to live with the respondent and the petitioner can meet the child whenever she likes. The respondent prevents the petitioner from meeting the minor child. The petitioner is earning a sum of Rs.28,000/- and she is living with her parents and she has sufficient means to maintain and bring up the minor daughter. It is further stated by the petitioner that the respondent is not at all a fit person to be given custody of the minor and she is entitled to be declared as guardian and given custody of the minor. Therefore, the petitioner would request this Court to declare her as the guardian of the person of the minor Maria Yusuf Khasamwala and also for such other reliefs. 3. The respondent in the counter statement has stated that it was the petitioner who deserted the respondent and she left the child and the respondent and insisted on divorce. It is further stated by the respondent in the counter that the custody of the child was given up voluntarily by the petitioner to the respondent since she and her mother were gainfully employed and could not take care of the child, whereas the mother of the respondent is a housewife and they live in joint family and the child is much attached to his family members. The respondent further denied the allegations in the petition that married life with him was not happy. It is also stated in the counter that the respondent's parents sent the newly married couple to Mauritius, Malaysia etc for honey moon at their expense. The respondent has further stated by the respondent that the marriage ended in divorce due to the petitioner's change of behaviour and attitude. The respondent has further stated that the petitioner became arrogant and even afte the birth of the child, she showed little regard to the respondent or his family and failed to take care of the child. It is further stated by the respondent that though the petitioner as mother is entitled to custody of the minor daughter till she attains puberty, in this case it would only harm the child. The respondent has further alleged in the counter that the child would suffer emotional imbalance if she is left in the custody of the petitioner and the background of her family is not congenial for letting the child in the petitioner's care and custody. It is further denied by the respondent in the counter that he did not take care of basic expenses and the parents of the petitioner supported them. The respondent has further stated they have cared for the child spending quality time and money on each and every need of hers. It is further denied by the respondent that he used to beat and abuse the petitioner throughout and also in front of the child. The respondent has further stated that the child has been hale and healthy due to the good care and nutritious food provided for by him and his family. The respondent also denied the allegation that the child was taken out of town every week end. It is further stated by the respondent that even when the petitioner demanded for divorce, she made it clear that she could not take care of the child as she and her mother were employed. The respondent has further denied the allegation that the child was treated with cruelty and stated that the child has been treated with utmost care, love and affection. The respondent in the counter has further stated that the petition has no merit and it is vexatious and has been filed with ulterior motives. It is further stated by respondent that if the guardianship of the child is disturbed, the child would be affected psychologically and physically and her welfare would be jeopardized. Therefore the respondent prays this Court to dismiss the Original Petition with costs. 4. In the reply statement, the petitioner has stated that the respondent's cousins and also their common friends would testify to the fact of ill treatment meted out to the petitioner at the hands of the respondent and his father. The petitioner, therefore, requests this Court to allow the Original Petition as prayed for. 5. The petitioner is the mother and the respondent is the father of minor female child Maria Yusuf Khasamwala. The petitioner had examined herself as PW.1 and had produced Exs.P1 to P16 in support of her case and the respondent examined himself as RW.1 and had produced Exs.R1 to R9 in order to substantiate his defence. 6. Heard Mr.C.Manishankar, learned counsel for the petitioner and Mrs.Sudha Ramalingam, learned counsel for the respondent. 7. The learned counsel for the petitioner would submit in his argument that the petitioner was married to the respondent on 28.9.2002 and the marriage was solemnized in accordance with Muslim Law and they lived happily at the house of the respondent and they got a female child, born on 3.10.2004 and she was named as Maria Yusuf Khasamwala. He would further submit in his argument that the said child Maria was subjected to the celebration of "Akikkah" ceremony when she was 7 days old and was kept without any mother's feeding, since the petitioner not attending the function as she was taking bed rest at her 7th day after delivery. He would further submit that the child Maria grew and she was admitted in the school Euro Kids at Alwarpet and she was studying in the said school, to which the petitioner and her father paid the money for her admission. However, dispute arose in between the petitioner and the respondent and the petitioner was beaten by the respondent and his father on 19.10.2007 and was driven out from her matrimonial home and subsequently, the estranged relationship was not set right by the respondent and therefore, the petitioner and the respondent got divorce by 'Talaq Alsinha', the oral divorce. He would also submit in his argument that the petitioner had to work for her livelihood in Thomson Reuters to support herself and her daughter Maria and the child Maria complained chest pain when she was sent to the petitioner's place during the week end visits and was taken to the doctor by the petitioner and the treatment was given to the child at the cost of the petitioner only. He would also submit in his argument that the respondent even after divorce, abused the petitioner physically and verbally when she came to pick up Maria and for that, the petitioner gave a criminal complaint against the respondent at Mylapore Police Station and they have also received the complaint and issued a receipt. He would further submit in his argument that the petitioner, being the mother is entitled to the custody of the female child till she attains puberty as per the Muslim Law and hence filed the present petition before this Court. He would further submit in his argument that the minor child Maria was only aged about 5 years on the date of filing the petition and she is now 7 years old. He would further submit in his argument that according to Muslim law, the minor female child should have been under the care and custody of the mother till she attains puberty because the mother could alone look after the female child prior and post attainment of puberty and it would save the minor child from psychological impairment. He would further submit in his argument that the petitioner is willing to look after the expenditure for the minor child if custody is given after the petitioner has been appointed as the guardian of minor child Maria. 8. The learned counsel for the petitioner would further submit in his argument that the petitioner alone is the natural guardian in accordance with Muslim law and the respondent who is doing business cannot spare his time to spend with his child. He would further submit that the petitioner is even ready to resign her job and look after the child since the welfare of the child is paramount consideration. He would also submit in his argument that the respondent cannot leave the business and look after the child. He would also submit that the admission of the respondent in his evidence would go to show that he was working from 9.30 am to 7.30 pm and Maria's school time was between 7.30 am and 1.30 pm and after that he could not spend time with the child and only his mother, sister, sister-in-law would be looking after her and he had travelled abroad for four or five times from 2007 onwards. At that time, minor child Maria used to stay with his parents. He would therefore, request the Court that it is not convenient for the minor child to be with the respondent and the natural guardian viz. mother is the suitable person for looking after the minor child. He would also bring it to the notice of this Court a Judgment of the Andhra Pradesh High Court, reported in AIR 1984 ANDHRA PRADESH 1 in between S.Rehan Fatima v. Syed Badinudin Pariviz in support of his argument. He would quote from the said judgment and argue that the mother is entitled to the custody of her female child until she has attained puberty as per Section 352 of "Principles of Mohamadden Law" by Mullah. He would therefore, request the Court to declare the petitioner as the guardian of the person minor female child Maria Yusuf Khasamwala and also for such other reliefs relating to her custody and thus, the petition may be allowed. 9. Mrs.Sudha Ramalingam, learned counsel appearing for the respondent, would submit in her argument that there is no dispute that the petitioner and the respondent were married and subsequently got divorce in between them after the birth of the female child Maria Yusuf. She would further submit that at the time of obtaining divorce in accordance with religious custom, the petitioner herself agreed to leave the child with the respondent and therefore, the petitioner is estopped from claiming to be the guardian of the minor child Maria Yusuf. She would further submit in her argument that as per Section 17 of the Guardians and Wards Act, 1890, the paramount consideration in deciding the guardianship and minorship would be the welfare of the minor child and therefore, there could be no hard and fast rule to follow the statute for the purpose of deciding the guardianship and minorship. She would further submit in her argument that the respondent as the father has been looking after the child from the date of her birth and she was admitted in one of the best schools in Chennai and the child is scoring very high marks and has grown up in a very congenial atmosphere. She would further submit that the respondent is living in joint family along with his parents, brother and sister and the welfare of the child would be looked after by other members especially, by the mother of the respondent in the absence of the respondent. She would also submit that the petitioner is admittedly working in Thomson Reuters and she cannot look after the child even though she being the mother of the child. She would further submit that the petitioner voluntarily left the child when she went away along with her father in 2007 and at that time, she did not take care of the child. She would also submit in her argument that the petitioner visited the child for unlimited number of times and she was permitted to take the child to her house whenever she is free to take the child and the said mode of visitation was also existed in between the parties and therefore, there is no deprivation of any right of the petitioner to see her daughter. She would further submit in her argument that the petition has been filed only to disturb and jeopardize the welfare of the child. She would also submit that the law governing the Muslims would no doubt state that the mother is entitled to the custody of the female child till she attains puberty but the said rule is subjected to certain exceptions. She would also submit that the paramount consideration would be the welfare of the child as per Section 17 of the Guardians and Wards Act. The said proposition is also stated in Muslim law, which could be very much tilted towards the welfare of the child. She would quote the Judgment of the Honourable Apex Court reported in (2008) 9 SCC 413 in between Nil Ratan Kundu v. Abhijit Kundu for the proposition that the guardianship as well as the custody of the child cannot be decided solely by interpreting legal provisions, since such a human problem can be solved with human touch. She would also bring it to the attention of the Court, yet another Judgment of the Honourable Apex Court, reported in (2009) 1 SCC 42 in between Gaurav Nagpal v. Sumedha Nagpal for similar proposition. She would further submit in her argument, regarding the custody and guardianship of minor muslim girl, she would cite a judgment of this Court, reported in CDJ 1951 MHC 072 in between Mir Mohammed Bahauddin v. Mujee Bunnisa Begum Sahiba. She would rely upon the said judgment that even though the minor muslim girl is directed to be in custody of the mother till she attains puberty, the legal guardian should be the father and if there are sufficient women folk viz. mother of the father or other sister of the father are available in the house of the petitioner, there is no need to hand over the custody of the minor to the mother, and no harm nor prejudice would be caused to the child if she is continued with the custody of the respondent and the said custody with the respondent is very much required for the welfare of the child and it cannot be disturbed. She would further submit that the visitation right of the petitioner to look after the child at any time and to take the child at weekends may be sufficiently granted to the petitioner, who was already divorced even in the year 2008. Therefore she would request this Court to dismiss the petition for declaration filed by the petitioner for guardianship of person of minor Maria Yusuf Khasamwala. 10. I have given anxious consideration to the arguments advanced on either side. 11. The undisputed facts in this case would be that the petitioner and the respondent married each other as per Islamic Religious Custom on 28.9.2002 and they lived together and out of the wed-lock they got a female child, born on 3.10.2004 and she was named as Maria Yusuf Khasamwala. It is also an admitted fact that the religious 'Akikkah' ceremony was performed when the child was 7 days old and in the said ceremony, the petitioner/mother was taking bed rest and therefore, she did not participate in the said ceremony and thereafter, the petitioner and the respondent lived together and the minor child was sent to school viz. Euro Kids at Alwarpet. The dispute arose in between the parties and they divorced each other as per Muslim law. The document produced by the petitioner as Ex.P4 would disclose that both the petitioner and the respondent divorced orally as per Muslim law on 8.2.2008. According to the said document Ex.P4, we could see that on the basis of divorce had in between them, there was a settlement reached by both parties and it was extracted in the said document and both the petitioner and the respondent had subscribed their signatures. The translation of the said document from Urdu to English would run thus: "DEALING BETWEEN BOTH THE PARTIES ARE MUTUALLY CLEAR. A DAUGHTER NAMELY MARIA IS ABOUT THREE 3 YEARS OLD. SHE CAN LIVE WITH HER FATHER YUSUF. THE DAUGHTER MARIA CAN MEET HER MOTHER RASHIDA OR THE MOTHER CAN ALSO MEET HER WHENEVER SHE LIKES. THE FATHER CAN NOT RESTRAIN HIS DAUGHTER TO DO SO. THIS HAS BEEN MUTUALLY AGREED UPON." 12. Therefore the petitioner herself had agreed to leave the child with the respondent's custody. 13. Now the point for consideration is whether the custody of minor child had with the respondent has to be withdrawn and the petitioner be given with the custody. Apart from that, whether the guardianship of the minor Maria Yusuf has to be removed from the respondent/ father and the petitioner mother be declared as the guardian of the child. 14. On a careful perusal of the evidence adduced on the side of both parties, I could understand that the respondent is doing business and he has to work from 9.30 am to 7.30 pm in a day and the school timings of the female child is 7.45 am to 1.45 pm and when the child retires from the school, the women folk at the house of the respondent would look after her till the respondent returns from the work place. I could also see that the respondent has to travel abroad on business line and during that time also the minor female child was to be looked after by women folk at his house viz., by mother of the respondent and sister in the respondent's house and they were looking after the minor child in the absence of the respondent. However, I could see from the argument of the petitioner that she is now employed in Thomson Reuters and her pay slip would go to show that she is earning more than Rs.3 lakhs per annum. No doubt, it is true that she has also to attend to her job and she is also facing the difficulties in finding time to look after the child. However, it has been argued by the learned counsel for the petitioner that she is ready to resign the job and to look after the child. If really the petitioner is interested in the custody of the minor child, she would have asked for the custody of the child at the time when she got divorce from the respondent. On that day, she did not raise the right to custody of the child and she agreed for the custody to continue with the respondent. The Court could presume that she had considered the welfare of the child at the time of getting divorce from the respondent and she had left the custody of the child with the respondent. However, she was given visitation rights whenever she wants to see the child and whenever the child wants to see her. After the date of divorce, she did not ask for custody of the child and only when the dispute arose in between the petitioner and the respondent, she had given complaint against the respondent and also filed petition seeking for declaration of guardianship of minor child Maria Yusuf, in her favour. 15. I could see from the evidence of both parties that the minor child Maria Yusuf is living comfortably with the respondent and is attending to school promptly without any hazard. At this juncture, we have to look after the legal provisions governing the custody of minor child in Muslim Law as argued by the learned counsel for the petitioner. In accordance with Section 352 of Principles of Muslim Law by Mullah, we could see that mother is normally entitled for custody till the minor female child attains puberty. The Judgment of the Andhra Pradesh High Court cited by the learned counsel for the petitioner reported in AIR 1984 ANDHRA PRADESH 1 in between S.Rehan Fatima v. Syed Badinudin Pariviz would also approve the said provision. The relevant passage would run thus: "6. Now coming to the principles of Mohammadan Law applicable o the Hanafi Sect, the position is as given in Section 352 of the principles of Mohammedan Law by Mulla:- "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, unless she marries a second husband in which case the custody belongs to the father." 16. However, it has been resisted by the learned counsel for the respondent that where there are no allegtions contra to the welfare of the minor female child who is in custody of the father, the guardianship as well as the custody of the child cannot be changed from the father. The judgment of this Court reported in CDJ 1951 MHC 072 in between Mir Mohammed Bahauddin v. Mujee Bunnisa Begum Sahiba speaks as follows: (8) ..... That, however, is not a very material circumstance in considering his claims for the guardianship. I do not find on the allegations made in the affidavits filed in this case that he is a person who could not be thought of for the guardianship of the minor. I consider him as a fit and proper person to take charge of the custody of the