THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR F.C.A. No. 287 of 2010 Order: (Per Hon’ble Sri Justice B. Chandra Kumar) This appeal is directed against the orders dated 06.10.2010 passed in F.C.O.P. No. 4 of 2010 by the Judge, Family Court-cum-Additional District and Sessions Judge, at Karimnagar. The parties hereinafter will be referred to as they are arrayed before the lower Court for the sake of convenience. The petitioner filed a petition under Section 25 of the Guardian and Wards Act, 1890, seeking custody of minor children. The lower Court rejected the said petition, but however granted visiting rights to him. Aggrieved by the same, his wife preferred this appeal. The brief facts of the case are as follows. The petitioner is the husband of the respondent. Their marriage was solemnized on 13.05.2005 at Karimnagar according to Islamic Rites. They are blessed with two children namely Adeeb Ahmed, a male child, born on 14.04.2006 and Afiyath, a female child, born on 04.04.2007. Subsequently, the relationship between the petitioner and the respondent became strained and the respondent left the society of the petitioner on 28.08.2009 and since then she has been residing in the house of her mother along with the minor children. The petitioner’s specific case is that due to adamant attitude of the respondent the interest of the minor wards is being adversely affected and their studies are discontinued and they are not being provided nutritious food and living in unhygienic condition and they are becoming weak day by day. It is the case of the petitioner that the respondent has been depending on the pension of her mother. It is also alleged that the respondent and her mother are not allowing the petitioner to see his children and they are becoming psychologically depressed. It is also the case of the petitioner that he is a Pharmacist by profession and earns Rs.20,000/- per month and besides the same he has got ancestral property worth lakhs of rupees and that he is ready to provide good education and all necessary facilities for the proper upbringing of his children. The respondent-wife filed a counter and denied the allegations made by the petitioner. It is her case that the petitioner, having not satisfied with the articles given at the time of marriage, demanded Rs.50,000/- towards additional dowry and used to threaten that he would commit suicide by giving poison to the children. It is also her case that on 25.08.2009 the petitioner himself left the respondent at her parental house as she was suffering from fever and that on 29.08.2009 the petitioner came to the house of her mother and demanded Rs.4,00,000/- and when the respondent expressed her inability, he became angry and started fisting the respondent and when her mother intervened, she also sustained blows in the hands of the petitioner. It is also the case of the respondent that on the same day, she was admitted in Government Civil Hospital, Karimnagar, through the Station House Officer, Women Police Station, Karimnagar, and in the above circumstances, she obtained Khula (divorce) from the petitioner. It is also her case that the petitioner never cared for the health and happiness of the children. On behalf of the petitioner, the petitioner himself was examined as PW.1 and his mother was examined as PW.2 and Exs.P1 to P5 were marked. On behalf of the respondent, the respondent herself was examined as RW.1 and her mother was examined as RW.2 and Ex.R1 was marked. The lower Court, on appreciation of oral and documentary evidence, came to the conclusion that RW.1 worked as a teacher and that she is an educated woman and that she discontinued her Bachelor of Business Management Course and she is a qualified Hindi Pandit and that she is capable of looking after the educational progress of the children. The lower Court also observed that according to Islamic law, the mother is entitled to the custody of the male child till the child completes 7 years of age and also entitled to the custody of a female child till the child attains puberty (the male child was aged about 4 ½ years and female child was aged about 3 ½ years as on the date of filing of the petition). The lower Court further held that RW.1, being the mother, is entitled to continue the custody of the minor wards, who are presently under her care and custody. The lower Court also held that the petitioner-husband, while coming to the issue of payment of maintenance to the children and his wife, had taken a stand that he is not having any source of income and that he is dependent upon the income of his father and when he wants the custody of the children, he has taken a plea that he earns Rs.20,000/- per month and also got ancestral properties all worth lakhs of rupees and thus the petitioner had taken contradictory stand with regard to quantum and source of his income. In the circumstances, the lower Court passed an order holding that the respondent-mother shall have the custody of the minors and rejected the contention of the petitioner. However, the father has been given visiting rights on every first and third Sunday of the month from 9.00 AM to 5.00 PM and then to return the custody of the children to the respondent by 5.00 PM. The respondent-wife, aggrieved by the said order, has preferred this appeal. Learned counsel for the respondent-wife submitted that as per Islamic law though the father is natural guardian, but the mother is entitled to the custody of the male child till the child completes 7 years of age and the custody of a female child till the child attains puberty, and therefore, the lower Court ought not to have granted visiting rights to the petitioner. It is also argued that the petitioner had admitted that he was depending upon his father who is pensioner and in such a situation the lower Court ought not to have granted visiting rights to him. It is also argued that due to misbehaviour of the petitioner, the respondent stopped going to school and that it is due to the fault of the petitioner the divorce took place between the parties. The learned counsel for the petitioner-husband submitted that the lower Court having regard to the facts and circumstances of the case granted only visiting rights to the father and there is no illegality or irregularity in the order passed by the lower Court. The only point that arises for consideration is whether the impugned order is liable to be set aside on the facts and circumstances of the case. Admittedly, the petitioner is the father of the minor children. It is clear that the relationship between the petitioner and the respondent become strained. It is the case of the respondent that the petitioner beat her and consequently she sustained injuries and that she was compelled to approach the police and that she was admitted in the hospital. It also appears that the respondent claimed maintenance to herself and her children and in that the petitioner had taken a stand that he has no sufficient income to maintain his wife and children. Whatever it may be, having regard to the educational qualifications and the income of the respondent and the necessity of care and custody of the minor children, the lower Court has given the custody of minors to the respondent and granted only visiting rights to the petitioner on every first and third Sunday of the month. There may be differences between the wife and husband and they may not be inclined to live together, but it is always better if they forget their differences in the interest of minor children and at least do not deprive the love and affection of either mother or father to the children, because children require love and affection of both the mother and father and they love both father and mother. Parents should not forget that children require the care, custody, love and affection of both i.e., mother and father and disturbed families cause great mental agony, frustration to the children. Coming to the facts of the case it appears that merely because the stand taken by the petitioner is not correct or that he is involved in a case for the offence under Section 498-A of IPC or that for some time he could not look after the children, cannot be valid reasons to deny him the visiting rights. Even if there is bitterness among the wife and children, that cannot be a ground to deny the visiting rights to one party where custody is given to other party. Having regard to the facts and circumstances of the case, and in view of the age of the children and the contentions of the parties, we are of the view that the lower Court has not committed any mistake in granting visiting rights to the petitioner on every first and third Sunday of the month and the order passed by the lower Court does not suffer from any illegality or irregularity warranting interference by this Court. The appeal is devoid of merit and the same is accordingly dismissed. However, in the circumstances, no costs. ________________ N.V. RAMANA, J. ______________________ B. CHANDRA KUMAR, J. Date: 06th December 2010 Nsr