1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 864 OF 2009 Shaikh Arifuddin s/o Shaikh Zaizuddin Age 33 years, Occ. Service, R/o. Arrab Khedki, Begampura Aurangabad ...Appellant Versus Toha Parveen d/o Mohd. Khalluddin Age 31 years, Occ. Service R/o. C/o Kendriya Primary School, Peergaibwadi, Tq. Ghansawangi, District Jalna ...Respondent ..... Mr. R.R.Shaikh, advocate for the appellant Mr. K.J. Suryawanshi, advocate for respondent ..... CORAM: R.G. KETKAR, J. DATED: 24TH NOVEMBER, 2009 JUDGMENT:- 1 This appeal is directed against the judgment and order dated 24.3.2009, passed by the learned District Judge-3,Jalna in M.C.P. No. 148 of 2007. By this order, the learned District Judge rejected the petition moved by the appellant for custody of minor female child Hajra, under Section 7 of the Guardian and Wards Act 1890 (for short “the Act”). The appeal arises in the following circumstances;- 2 2 The marriage between the appellant and respondent was solemnized on 18.5.2001, as per the rites and customs of Muslim Law, at Beed. After the marriage, respondent wife went to the house of appellant husband for cohabitation and out of this wedlock, the respondent gave birth to Hajra, on 22.2.2002. The marriage was dissolved by divorce in the office of Kazi on 27.3.2002. 3 It is the case of the appellant that the respondent was harassing him. She had filed complaint under section 498-A of I.P.C. against him and his parents. Initially, he was convicted by the learned J.M.F.C. but was subsequently acquitted by the learned Adhoc Sessions Judge, Beed on 19.11.2004. The respondent also took out proceedings for maintenance against the appellant being Misc. Criminal application No. 206 of 2002. This was disposed of by the learned J.M.F.C. Beed and the appellant was ordered to pay maintenance to the daughter Hajra, @ Rs.500/- p.m. The appellant further contented that the respondent did not take proper care of Hajra and misused the maintenance amount. It is the case of the appellant that respondent is also not providing proper food, clothing and medicines to daughter Hajra. The appellant also came with a case that the respondent has performed second marriage with one Sk. Salim s/o Sk. Shabir, who is having bad vices. The appellant 3 went to meet Hajra at village Peergaibwadi on 12.10.2007, the respondent did not permit him to meet Hajra. Thus, in substance, it is the case of the appellant that the welfare of minor child Hajra is not properly looked after by the respondent. On these among other grounds, the appellant filed proceeding under Section 7 of the Act before the learned District Judge on 19.11.2007. 4 The respondent resisted the proceeding by filing her say at Exh.6. The respondent came with a case that the applicant and his family members ill-treated her. When she gave birth to minor daughter Hajra, the appellant and his family members came to Beed and demanded Rs.1,00,000/- from her parents. They also abused and beat the respondent. She had therefore, filed complaint to the concerned police station against the appellant and his family members. Though the court awarded maintenance for minor daughter Hajra @ Rs.500/- p.m., the appellant did not pay the amount regularly and consequently she was constrained to file recovery proceeding being M.C.A. No. 444 of 2003. In the said proceeding, the appellant was also arrested as he did not deposit the arrears of maintenance amount awarded by the Court. It was also contended that the appellant has no love and affection towards minor child Hajra. She admitted her second marriage and contended that her second husband is thorough gentleman and he treats her very 4 well. It is her case that minor daughter Hajra is taking education in K.G. in Enlgish Medium School and is under custody of her maternal grand mother and second husband. She further asserted that the appellant had filed earlier application under Section 7 of the Act, which was dismissed on 21.10.2007 in default. In view of this, she submitted that the present proceedings are not maintainable. Relying upon the provisions of Mohammdan law, she contended that the custody of the minor female child could not be granted until she attains the age of puberty. That apart, even the appellant has performed second marriage and with this she prayed for dismissal of the petition. 5 The learned Judge framed necessary issues and parties led oral as well as documentary evidence. After considering the material on record, the learned Judge rejected the petition under Section 7 of the Act. It is against this order, the present appeal is preferred. 6 By order dated 7.5.2009, this Court issued notice to the respondent and ordered that the appeal will be heard finally at the admission stage. Record and proceedings were also called for. 7 I have heard Shri. Shaikh, learned counsel for the appellant and Shri. Suryawanshi, learned counsel for the respondent. Admit. 5 Shri Suryawanshi, waives service. By consent of the parties, the appeal is taken up for final hearing. 8 Shri Shaikh, learned counsel for the appellant submitted that the respondent has not brought any material on record to indicate that the minor Hajra is taking education in the school. He further submitted that the respondent is gainful employed, as a teacher and minor Hajra is looked after by grand mother. The appellant is residing in Aurangabad and is also teacher by profession. Considering the education facilities available in Aurangabad compared with the education facilities available at Ghansawangi, he submitted that the welfare of the minor child will be looked after better, if the custody is given to him. 9 On the other hand, learned counsel for the respondent submitted that perusal of the oral testimony of the appellant indicates that before taking divorce, for a period of one and half months, the appellant was residing separately when the respondent was pregnant. In the evidence, the appellant admitted that he did not make any provisions during that period. The appellant did not bear any medical expenses. Not only this, he further admitted that after birth of Hajra, he never went in the hospital to see the child. He did not provide clothes and toys to minor child Hajra. What is significant 6 to note is that till filing of present application in 2007, the appellant never went to meet daughter Hajra and never made any provision for maintenance of the daughter. In the course of evidence, he further admitted that he never inquired whether daughter Hajra goes to school or not? Learned counsel Shri Suryawanshi, also invited my attention to the oral evidence of respondent, when she deposed that the appellant did not mention the age of minor child even in the petition, which shows that the appellant does not know even date of birth of Hajra. She reiterated that Hajra is taking education in K.G. standard. 10 With the assistance of learned counsel, I have gone through the record. It is also relevant to note at this juncture that the learned trial Judge examined the minor daughter and recorded her statement at Exh.31. Learned counsel for the appellant relied upon Section 352 of the Mahomedan Law to contend that the mother is entitled to custody of female child until she attains the puberty. The right is not absolute and the said right continues till mother remarries. In the instant case, the respondent has remarried and therefore, right acquired under Section 352 of the Mahomedan Law by the respondent is defeasible. In support of this submission, he relied upon the judgment of the Supreme Court in the case of Mt. Ulfat Bibi Vs. Bafati. Relying upon the said judgment, he submitted that 7 divorced mother, who has married another husband is not better suited than the father to have custody of minor child. 11 Shri Suryawanshi, learned counsel, on the other hand, relied upon the judgment in the case of Anjali Kapoor (Smt) Vs. Rajiv Baijal, (2009) 7 SCC 322 and submitted that the welfare of the child prevails over legal rights of the parties while deciding the custody of the minor child. 12 After hearing learned counsel for the parties as also after going through the record, I am satisfied that the learned Judge has not committed any error while dismissing the petition. The learned trial Judge while dismissing the petition also gave liberty to the appellant to seek custody of minor child Hajra, after she attains puberty. While rejecting the petition, the learned trial Judge considered material on record and recorded the findings that the welfare of minor child will be looked after better by the respondent. I do not find that this finding is vitiated or is not based on the evidence on record. Considering the oral evidence of the parties, stated herein above, in my opinion, the appellant has not made out the case for custody of the minor child. The trial Judge also recorded the statement of minor child Hajra at Exh.31 and observed that she is unable to identify the appellant and that she does not want to go to 8 the house of the appellant. The fact that the minor child Hajra was born in 2002 and no attempts were made by the appellant for meeting her till October, 2007, all these facts disentitle him for giving custody of the minor child. Even the proceedings are filed in 2007, considering the cumulative effect, in my opinion, the learned trial judge was justified in dismissing the petition. No interference is warranted in the facts and circumstances of the case. The appeal is devoid of substance and deserves to be dismissed. Hence, dismissed with no order as to costs. *****