In the High Court of Judicature at Madras Dated 03.12.2010 Coram The Honourable Mr.Justice R.SUBBIAH Civil Miscellaneous Appeal No.3040 of 2008 and M.P.Nos.1/2008 and 1 and 2/2010 Arafathunnisa ..Appellant ..vs.. 1. T.I.Zeeyavudeen 2. Taraja Beevi 3. Mohammed Yasin ..Respondents Civil Miscellaneous Appeal filed under Section 47 of the Guardian and Wards Act, against the order and decretal order dated 11.07.2008 made in GWOP.No.9 of 2008, on the file of Sub Court at Tiruvarur. For Appellant : Mrs.Hema Sampath, Senior Counsel for Mr.Srinath Sridevan For Respondents: Mr.R.Subramanian for R1 JUDGMENT This appeal is filed by the wife as against the order and decretal order dated 11.07.2008 passed by the learned Subordinate Judge, Tiruvarur, in G.W.O.P.No.9 of 2008, whereby the original petition filed by the 1st respondent/husband, seeking the custody of the minor female child, was allowed. 2. The short facts, which are necessary to decide the issue involved in the appeal, are as follows: The appellant and the 1st respondent got married under Muslim Law and out of the wedlock, the appellant gave birth to a female child, by name, Ariz Fathima on 18.07.1998. It is the case of the 1st respondent/husband that the appellant/ wife was not in a sound mind even prior to the marriage and he came to know the same only after the marriage and she was taking treatment for the same with different psychiatrists. While so, the appellant started torturing the child whenever she was affected by Hysteria. On 27.01.2000, the appellant left the matrimonial home at Thirunageswaram near https://hcservices.ecourts.gov.in/hcservices/ Kumbakonam to her mother's place at Chidambaram. All the efforts taken by the elders to pacify the appellant ended in futile. The appellant did not return to the matrimonial home till July 2000 and hence, a complaint was made to Chidambaram Jamath by the 1st respondent. Thereafter, the child was handed over to the 1st respondent on 28.07.2000 by the Chidambaram Jamath and she was in the custody of the 1st respondent/husband from 28.07.2000 to 15.12.2006. In the said situation, the appellant rejoined the 1st respondent on 11.05.2003; but she once again left the matrimonial home, leaving the child at Thirunageswaram and attempts made by the jamayathdars to unite the couple failed. Hence, the 1st respondent filed a suit in O.S.109 of 2006 on the file of Sub Court, Kumbakonam, for restitution of conjugal rights and the suit was decreed on 11.09.2007. In the meantime, on 15.02.2006, the appellant visited the minor's school and took away the child, without the knowledge of the 1st respondent. Subsequently, a complaint was lodged to the police by the 1st respondent. In pursuance of the same, a writ petition was filed by the appellant in W.P.No.5043 of 2006 forbearing the Inspector of Police, Kumbakonam, from acting on the complaint made by the 1st respondent. But, ultimately, the said writ petition was dismissed on 23.02.2006. Finally, the 1st respondent has filed the guardian original petition to have the custody of the minor child. 3. The case of the 1st respondent was resisted by the appellant stating that the 1st respondent and his family members were always demanding dowry and getting more jewels, 'seer' articles and cash from the appellant. The 1st respondent's mother was very much interested in dowry and as such, she instigated the 1st respondent to harass the appellant. The 1st respondent's mother and family members used to scold the appellant in the filthy language and they went to the extent of beating her and she was not provided with basic needs such as dress, food, etc. The appellant emphatically denied the allegation made by the 1st respondent that frequently she was affected by hysteria. Further, the custody of the minor girl under the Mohammaden Law should be only with the mother till she attains puberty. Since the appellant is not disqualified with the custody of the minor, the 1st respondent is not entitled to the relief sought for. Thus, she prayed for the dismissal of the petition. 4. On the side of the 1st respondent, he examined himself as P.W.1 besides examining one Abdul Ajeez as P.W.2 and marked Exs.P-1 to 61 and on the side of the wife, the appellant examined herself as R.W.1 besides examining R.Ws.2 and 3 and marked Exs.R-1 to R-9 and seven other documents were marked. The trial court, after considering the entire evidence, has allowed the original petition and directed the appellant to hand over the custody of the child to the 1st respondent. Aggrieved over the same, the present appeal has been filed by the wife. https://hcservices.ecourts.gov.in/hcservices/ 5. Pending appeal, on 30.09.2010, the appellant got re-married another person and the second marriage of the appellant was admitted by both sides. Hence, in view of the changed circumstances, the submissions were made by the learned counsel on either side as to whether the appellant is entitled to have the custody of the minor child after second marriage, under Mohammaden Law. 6. In view of the said circumstances, this Court is of the opinion that there is no need to discuss the merit of the order in detail, which was passed prior to the second marriage of the appellant. 7. Learned Senior Counsel for the appellant/wife submitted that under the Muslim Personal Law, the mother of the female minor child is entitled to have the custody of the minor till the minor attains puberty and, as such, the second marriage is not a bar to have the custody of the child by the mother. By inviting the attention of this Court to the reasonings given in the order, the learned senior counsel further submitted that the trial court, by relying upon Shia Law has come to the conclusion that the mother is entitled to have custody of the child till he/she completes the age of seven years and thereafter the custody goes to the father. Attacking the said finding, the learned senior counsel submitted that the parties to the proceedings belonged to Hanafi Law and as such, the provisions under Shia Law cannot be made applicable to the parties. Under the Hanafi Law, the appellant is entitled to have the custody of the female till she attains the age of puberty. In support of her contentions, the learned senior counsel has also relied upon the judgments reported in AIR 1988 KERALA 30 (SUHARABI ..v.. D.MUHAMMED), AIR 1986 ALLAHABAD 314 (KHURSHID GAUHAR ..vs.. SIDDIQUNNISA), AIR 2005 M.P.141 (WAZID ALI ..vs. REHANA ANJUM) and (1993) 2 SCC 6 (CHANDRAKALA MENON ..vs.. VIPIN MENON (CAPT). Further, the learned senior counsel submitted that on merits, the court below has come to the conclusion that the allegation of the 1st respondent that the appellant used to develop hysteria is not correct. When that being so, there cannot be any impediment in ordering the custody of the child with the mother. 8. Per contra, the learned counsel for the 1st respondent/ husband, by relying upon the judgment reported in AIR (39) 1952 MADRAS 280 (MIR MOHAMED BAHAUDDIN ..vs.. MUJEE BUNNISA BEGUM) submitted that under the Mohammadan Law, when mother marries a stranger as her second husband, the custody of the child should not be entrusted with her. The learned counsel for the 1st respondent further submitted that this position was made clear in a number of judgments and also relied on the judgments reported in 2007(4) CTC 566 (SELVAN, J .vs.. N.PUNIDHA), (2008) 7 SCC 673 (MAUSAMI MOITRA GANGULI ..vs. JAYANT GANGULI) and 2007(5) BOM CR 36 (SYYAD https://hcservices.ecourts.gov.in/hcservices/ SABDARALI SY.NYAJALI ..vs.. SHAHISTABEGUM). Further, the learned counsel submitted that while ordering custody, paramount interest of the child should be taken into consideration. The 1st respondent/husband is a businessman and is an income tax assessee and his family owns a business in betel nut in Kumbakonam under the brand name "Kani Seeval" and is having all the financial status to look after the child comfortably, whereas the father of the appellant is living at Bangkok and he has not taken any effort to settle the issues relating to the marriage of the appellant and this fact was also admitted by the mother of the appellant when she was examined as R.W.3 before the trial court. In that situation, the appeal filed by the appellant has to be dismissed. 9. In view of the submissions made by the learned counsel on either side, now the question that arises for consideration is, whether the appellant is entitled to have the custody of the minor female child after her second marriage. It is the contention of the appellant that under the Muslim Personal law, the mother of the female child is entitled to have the custody of the minor child till she attains puberty. She has also relied on number of judgments in support of her contention. In fact, there is no dispute about the proposition. But at the same time, the question that has to be decided in this matter is that whether a women, who marries for a second time, is entitled to have the custody of the minor child till she attains puberty ? For this, the judgments relied on by the learned counsel for the 1st respondent/husband are giving a fitting answer. In AIR (39) 1952 Madras 280 (supra), which is similar in nature to the facts of this case, it has been held as follows: "(7) .... Though it cannot be stated that however unsuitable the father may be, he may be appointed in preference to the mother, or any other near relation or stranger, certainly the mother, who has chosen to leave the father-though in this case under alleged ill-treatment-is not the person to whom the child could be entrusted, since it is unlikely that a woman who has married a second husband would be in a position to pay as much attention to the upkeep and well- being of the child as she would, if she had not taken to a second husband. It cannot be denied that she is answerable to the husband primarily and to look after his comforts and answer his behests and whatever attention she may bestow on the child could only be after she has been of such service to the second husband as he would require. In my view, unless the father is totally unsuitable, or there is any other relation who would take charge of the child, the mother who has married a second husband, is not at all the person to whom the child of the first marriage should be entrusted. It would be impossible for her under her changed circumstances to look after the child and care for her well- https://hcservices.ecourts.gov.in/hcservices/ being". 10. In AIR 1986 ALLAHABAD 314 (supra), the decision relied on by the appellant, in para 12, it has been stated as follows: "12. Further, Mulla in his commentary on Mohammedan Law has in S.354 specified the grounds when a female becomes disqualified for the custody of a child. These have been set out as: "(1) if she marries a person not related to the child within the prohibited degrees (Ss.260-261) e.g.a stranger, but the right revives on the dissolution of the marriage by death or divorce; or (2) if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence; or (3) if she is leading an immoral life, as where she is a prostitute; or (4) if she neglects to take proper care of the child". 11. In 2007 (5) Bom CR 36 (supra), it has been stated as follows: "9. There cannot be duality of opinion that welfare of the child is the most significant criteria to be applied while considering the question of custody. The fitness of person seeking custody is also one of the important aspect. In this case, the mother is partly fit in the sense that she has not remarried and has natural love and affection for the children. So also, the father is partly fit in the sense that he too has not remarried and has financial capacity to provide better education to the children. It appears from the affidavit of the father and photographs produced by him that Shahistabegum is residing in a hutment locality at small place i.e.Faizpur. The appellant-Sayyad Sabdarali is gainfully self employed person. He has shown readiness to provide better educational facility to the children". 12. In 2007 (4) CTC 566 (supra), this Court has stated as follows: "12. It is by now well settled that in all such matters, the interest and welfare of the minor children are of paramount importance, rather than the conflicting claims and interests of the parents. The right of the parents is not what is to be decided in these Applications, but the right of the children to have a healthy environment and a physical, emotional and financial support for the development of their integrated personality, that is to be decided in these Applications". https://hcservices.ecourts.gov.in/hcservices/ 13. A combined reading of all the judgments would show that if a woman marries a person not related to the child within a prohibited degree i.e.a stranger, it is a disqualification under the Mohammedan Law to have the custody of the child. Though under the Mohammedan Law she is entitled to have the child till she attains puberty, since the mother had married a stranger secondly she is not entitled to have the custody of the child. Moreover, the paramount interest and the welfare of the child are criteria to have the custody of the child. In the instant case, the evidence on record would show that the 1st respondent is in a sound financial position to give all comforts to the child. 14. Moreover, before this Court, the child was produced on two occasions i.e.on 11.01.2010 and on 08.11.2010. When the child was produced before this Court on 11.01.2010, i.e.before the second marriage of the appellant, this Court observed that the minor child appeared to be normal; but subsequent to the second marriage when she was produced before this Court on 08.11.2010, it is found that she was psychologically upset and was continuously crying. Considering all the legal position and other aspects, this Court is of the opinion that the custody of the minor child should be with the 1st respondent/father. Further, it was brought to the notice of this Court that presently the minor child is with the appellant/wife and under such circumstances, the appellant/wife is directed to hand over the custody of the child forthwith to the 1st respondent/father; however, the appellant is entitled to visit the child during the first week-end of every month from December, 2010. In view of the second marriage, the order of the trial court is modified to the effect that the appellant can have the custody of the child during quarterly leave, Christmas holidays and first one week of the Summer Holidays. With the above observations, the civil miscellaneous appeal is disposed of. No costs. Consequently, connected M.Ps.are closed. gl Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Subordinate Judge, Tiruvarur. + 1 cc to Mr.V.G. Suresh Kumar, Advocate SR No.86627 MDR(CO) SR/6.12.2010 judgment in C.M.A.No.3040 of 2008 https://hcservices.ecourts.gov.in/hcservices/