1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO.3147 OF 2009 Abdul Gafar s/o Jafarkhan Pathan age 39 years, occupation business r/of Washi,Tq.Washi,Dist.Osmanabad. Appellant versus Shaikh Mohammad Hanifsaheb, age 63 years, occup.labour, r/of Itkur, Taluka Kallam, District Osmanabad. Respondent ------- Shri S. B. Chaudhary, Advocate for the Appellant. Shri T. G. Gaikwad, Advocate for the Respondent. -------- Coram : P.R. Borkar, J. Date : April 16, 2010 ORAL JUDGMENT 01. Heard Shri S.B. Chaudhary and Shri T.G. Gaikwad, learned counsel for the respective parties. With consent of both the learned counsel, matter is taken up for final hearing at admission stage. 02. This first appeal is preferred by the appellant-father being aggrieved by the order passed by the learned District Judge-II, Osmanabad on 2 16.9.2009 rejecting Miscellaneous Civil Application filed by present appellant for custody of daughter Samrin. 03. Briefly stated, appellant and Rehena begum- the daughter of present respondent married in 1994 and in 1997 child Samrin was born out of the said wedlock. Presently Samrin is residing with her maternal grand father (present Respondent). There were some differences between the appellant and his wife Rehena Begum as a result of which Rehena Begum started residing separately with her father. She filed Misc. Application bearing No.148 of 2000 against present appellant for maintenance for herself and daughter Samrin. Said application was allowed by the learned Judicial Magistrate, First Class, Kallam, by granting Rs.500/= per month to Samrin towards her maintenance and Rs.700/= per month to Rehena Begum for three months which is iddat period. Sometime in 2002 Rehena Begum was given divorce by present appellant. It is now admitted position that Rehena Begum has remarried one Shaikh Moinoddin and has been residing with him at Pune after she was divorced by present appellant. Daughter Samrin is residing with her maternal grand father at Itkur, Taluka Kallam, District Osmanabad, 3 whereas appellant is residing at Washi, District Osmanabad. It is said that the appellant has garment shop. 04. On enquiry with learned counsel for the appellant, he fairly stated that the appellant is residing with his first wife with whom he had married in 1988 and from whom he has one son and one daughter. 05. Respondent filed his say at Exhibit 11 and opposed the application filed by present appellant before the District Court for custody. The Court called child Samrin, interviewed her and then decided the matter, but without recording any evidence. We do not find any pursis by the parties stating that they did not want to lead oral evidence. On 5.5.2009, Samrin appeared before the learned District Judge and on 16.9.2009 arguments were heard and on the same day application was decided. 06. Learned Counsel for the appellant referred to "Mulla's Principles of Mahomedan Law" 19th Edition and more particularly to page 287. Section 353 reads:- 4 "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, unless she marries a second husband in which case the custody belongs to the father." In present case, admittedly mother of child Samrin has remarried after she was divorced by the appellant. Age of the child Samrin is stated to be 13 years. 07. After going through the impugned order passed by the learned District Judge, absolutely we find no reason why he used discretion in a particular way and refused the application. In paragraph 8 of his judgment the learned Judge has stated that the child was interviewed by him and it was found that the child was happy with her maternal grand father and she has no problem in residing with her grand father. It is also observed that the child is comfortable with her cousin brother and sister. It is, however, not stated by the learned Judge that the child refused to live with her father or expressed any apprehension or reservation regarding stay with her father. 5 08. In paragraph 9, it is further stated by the learned Judge that "the present appellant is a businessman and every body knows that running a business is engaging the person for the whole day and night for the success of the business". The learned Judge stated that having considered the special aspects he felt it proper not to give custody to the appellant. 09. In my considered opinion, the reason given by the learned Judge for refusing to grant the custody of child to the present appellant is not proper. The learned Judge ought to have enquired more and should have considered where the welfare and best interest of the child lies and in whose custody, her best interest would be served. The Court ought to have allowed the parties to lead evidence and then should have also considered whether the appellant's offer was bonafide or otherwise. 10. In the circumstances, this first appeal is allowed partly. The order passed by the learned District Judge-II, Osmanabad on 16.9.2009 rejecting Miscellaneous Application No.134 of 2006 filed by present appellant is set aside. The said M.A. No.134 6 of 2006 is restored to the file of the District Judge, Osmanabad. The District Court shall allow the parties to lead evidence. The District Judge to enquire into all aspects of the matter and then decide the matter afresh. Parties agree to appear before the District Court on 3.5.2010. Registry is directed to send back the Record and Proceedings and also intimate this order to the District Court forthwith. Appeal disposed of. pnd/fa3147.09 (P.R.BORKAR, J.)