IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 185 OF 2007 WITH CIVIL APPLICATION NO. 9 OF 2010 Ellaham Nensey of Mumbai ..... .. ... ... ...Appellant versus Mohammed Nensey of Mumbai ... .... ... ... .....Respondent. Mr. Rizwan Merchant a/w Swapnil L. Wagh adv. for the Appellant. Mr. A.Y. Sakhare Sr. counsel i/b N.V. Bandiwadekar adv. for the Respondent. CORAM: A.P. DESHPANDE AND SMT. R.P. SONDURBALDOTA, JJ. Judgment reserved on: 19th April,2010. Judgment declared on: 6th May, 2010. ORAL JUDGMENT: (Per A.P. Deshpande, J.) 1. This Family Court Appeal is filed by the mother of the child by name Omar, aggrieved by the judgment and decree passed by the Family Court in Petition filed by the father claiming declaration of permanent guardianship and permanent custody of the minor child. 2. The parties to the appeal are both Sunni Muslims. They got married on 1st March 1997 and a son was born to them. Soon after the marriage, it is the case of the respondent/husband, that the appellant started becoming hysterical and her foul mood erupted everyday giving rise to frequent quarrels between the parties. In regard to the life style of the appellant/mother, it is alleged that the appellant never got up before 10.30 to 11.30 a.m. and was totally imbalanced and was neglecting the son. It is also averred by the respondent/father that son Omar was being taken care of by his parents and one Ms. Estella Ajarodo who was specially appointed to take care of the child. The appellant was totally oblivious of the matrimonial as well as maternal duties, though the child at the tender age needed the mother the most to look after. It is claimed by the respondent that he has devoted as much time as possible to the child and has played the role of both the parents. The son was and is very much fond of the father and both are inseparable. It is also claimed by the respondent/father that the appellant used to disappear in the afternoon on number of occasions to be with some occult priest who is known to be practicing occult and black magic by name Afzalbaba. On return she would exhibit extreme bouts of hysteria followed by aggressive behavior. Inspite of the respondent asking the appellant to stop going to said Afzalbaba she did not listen. She abused the parents of the respondent. The appellant then left the matrimonial home deserting the respondent and the son who was then barely 13 months old. The appellant filed a petition bearing no.13/98 in the High Court at Mumbai for seeking custody of the male child Omar, 13 months old at that time. The interim order dated 10-9-1998 was passed directing the father to hand over the custody of the child. Consent terms were filed in the said petition on 19-11-1998 and thus the custody petition filed by the present appellant came to be finally disposed of. Under the consent terms clause No. 1(B) and (C) are relevant which reads thus: 1(B): The parties agree and confirm that in addition to clause 1(A) above, until the minor Omar starts going to school, the appellant and respondent no.1 shall be entitled to take the minor child Omar together for a holiday for a fortnight in every three months. In case respondent no.1 is unable or unwilling to accompany the appellant and the child, the appellant shall be entitled to take the child alone. In case of any difficulty the parties shall be at liberty to apply. (C): After the minor child Omar starts going to school, the appellant shall be entitled to keep the minor child Omar with him and take the minor child Omar out for a period equivalent to half of the school vacation. 4. Besides agreeing to the aforesaid terms and conditions the respondent father has also agreed to continue the security arrangements for the minor child and to pay a sum of Rs. 10,000/- per month for the expenses of the minor son. 5. Relying on the consent terms and to be precise, consent terms no. 1(C), the respondent/father filed petition in Family Court after the child attained age of 6 years and was due for attending school, claiming declaration of he being permanent guardian and for permanent custody. The child is presently in the custody of the father. The respondent pronounced Talaq on 29-3-999. It is claimed by the respondent that he is spending a sum of Rs. 50,000/- per month for the benefit and welfare of the child. 6. The guardianship and custody of the minor is also claimed by the father by contending that under the Mahomedan Personal Law, guardian of a male child above seven years of age is the father. As the child was to complete seven years of age on 25.9.2004 the said ground was also pressed in service. 7. In regard to facilitate the school education of the child it is claimed by the father that nearby his residence which is at Royal Palms there are several internationally recognized and reputed schools and the child is admitted to one of the best schools available. It is then submitted that the respondent-father is in family business and he is handsomely earning. It is a matter of record that the respondent-father is financially very well off and is in position to spend for best of education and care of the child. 8. It is also submission of the respondent that the appellant- mother comes from broken family and lives along with her mother. Her father stays away and is Saudi national. To deny the custody to the mother, father also claims that the appellant is self centered person and does not think beyond herself. The child care is the least priority of the respondent. It is also submitted that the child is not comfortable with his mother as the mother stays along with her mother and her aunt. Lastly it is submitted that at the mother’s place at times the child is made to serve liquor as the appellant her mother and aunt are used to consuming alcohol. Per contra, it is the submission on behalf of the appellant that neither consent terms nor the personal law could govern the custody of the child but the focus ought to be on the welfare of the child. It is then contended that the respondent-father is uneducated and has studied upto VIII standard. It is also contended that the respondent father was arrested and was in custody for 14 days on account of arrest at the hands of Economic Offence Wing of Mumbai police in April, 2004 as he was accused of giving threats to the complainant- party. It is undisputed that the respondent was never prosecuted. It is also tried to be suggested that the respondent is a man of loose character. Weighing pros and cons the family court has held in categoric terms that the welfare of the minor would be better taken care of if he is in custody of the father. 9. We have interviewed the minor child alone with a view to ascertain his wishes as he appeared to be relatively mature. During interview he expressed his love and affection for both parents. He also stated in clear terms that he is more comfortable with his father. The son has also shown his desire to joint the family business along with his father which is fetching handsome returns after he grows up. The child has also stated that he would continue to visit and stay with his mother on week ends which arrangement is presently in practice. Having ascertained the wishes of the child and having heard learned counsel for the respective parties we record our reasons as to why the present appeal is devoid of merit and as to why we are concurring with the view taken by the family court that the father ought to be pronounced as guardian and entitled to permanent custody of the child: (a) As stated herein above the appellant had filed a petition bearing No.13/1998 in this court for seeking custody of male child Omar. The said petition came to be disposed of in consent terms. Under the consent terms after the child starts going to school meaning thereby he is 6/7 years of age, the respondent shall be entitled to keep the minor child with him. As consent decree is passed by this court in the earlier custody petition filed by the appellant. There is no reason as to why in execution of the said decree the custody be not handed over to the respondent-father. The appellant-mother having taken advantage and benefit under the consent terms now cannot be permitted to go back from that part of the decree which provides handing over custody of child to the father after the child attains the school going age. (b) Under the Personal Law father is the natural guardian of a male child above seven years of age. Our attention is invited to Mulla Principles of Mahomedan Law, Nineteenth Edition, by M. Hidayatullah. Chapter XVIII deals with Guardianship of Person and Property. Under the Muslim Personal Law mother is entitled to custody of her male child until he has completed age of seven yers and of the female child until she attains puberty. All the applications for the appointment of guardian of the person or property or both of a minor are to be made under the Guardianship and Wards Act. Section 17 of the Act provides that in appointing or declaring guardian of a minor the Courts are to be guided by what appears in the circumstances to be for the welfare of the minor, consistently with law to which the minor is subject. In considering what will be the welfare of the minor, the court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor. The wishes of the minor also need to be considered by the court if the minor is old enough to form an intelligent preference. Having regard to the provisions of Guardian and Wards Act and the Personal Law it is clear that the focus need to be on welfare of the child. Fact remains that the respondent father in the present case under the personal law is the natural guardian and the minor son has indicated his preference in clear terms to stay in the company of the father. (c) In so far as the financial stability is concerned, the respondent-father is economically very sound and can provide all the comfort to the child. The child also proposes after he grows up to join family business along with his father. It would also be in the interest of minor to be with his father as his father can groom him into the family business after few years. (d) So far as the comfort of the child is concerned the child is comfortable at the residence of the father. He is not comfortable at the place where his mother resides with her mother and aunt. Having regard to various factors referred to here in above we are of the clear view that it will be in the interest of the minor to be in the custody of father. If the father is declared as natural guardian entitled to custody of the child the same would be in furtherance of welfare of the child. 10. In our view the main objection raised by the appellant about the arrest of the respondent and his detention for a period of 14 days in police custody will have absolutely no bearing in determining the question of guardianship and custody for the reason that the respondent was not even prosecuted though arrested. The said arrest and detention which had taken place about six yers back cannot be a ground to refuse guardianship and custody to the respondent. There is hardly any material on record to indicate that the character of the respondent is not good so as to refuse him the relief claimed. Having regard to the totality of facts and circumstances we are of the clear view that the family court has taken correct decision in declaring the respondent-father to be the guardian of the person and property of the minor so also in granting him custody. We are in complete agreement with the view taken by the family court. In the result as there is no merit in the appeal, same stands dismissed. However with no order as to costs. We make it clear that the present arrangement which grants access to the appellant-mother and directs the minor to stay with her at the week ends made under the interim order, shall continue unless altered by an order of the Court. We make it clear that if there is any conflict between this judgment and the consent terms dated 19-11-1998 filed in Appeal No. 947/98 arising out of Custody Petition No.13/98, this judgment shall prevail over the consent terms. In view of this clarification, Civil Application No. 9/10 is also disposed of. (A.P. Deshpande,J.) (Smt. R.P. SondurBaldota, J.)