1 FA.516.04.doc ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 516 OF 2004 Mrs. Mehwash Sammer Sayyed. ... Appellant Versus Iftekhar Shafique Falke. ... Respondent WITH CIVIL APPLICATION NO. 649 OF 2011 Iftekhar Shafique Falke. ... Applicant Versus Mrs. Mehwash Sammer Sayyed. ... Respondent -------- Mr. K.Y.Mandlik for the Appellant and for the Respondent in the Civil Application. Mr. P.M.Arjunwadkar for the Respondent and for the Applicant in the Civil Application. -------- CORAM : A.S.OKA, J. DATE ON WHICH JUDGMENT IS RESERVED : 25 th February, 2011 DATE ON WHICH JUDGMENT IS PRONOUNCED : 6 th May, 2011. 2 FA.516.04.doc JUDGMENT: 1 The Appellant has taken an exception to the judgment and order dated 24 th February, 2004 passed by the learned Additional District Judge by which the application made by the Respondent under Section 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as “the said Act”) has been allowed. 2 The Respondent married to the Appellant on 15 th February, 1998. The Respondent was serving in Baharin. From the matrimonial wedlock, on 8 th December, 1998, a son was born (Umair). It appears that there was a matrimonial dispute between the parties. The Respondent pronounced divorce on 14 th October, 2000. The application has been filed by the Respondent under Section 25 of the said Act for declaration that he is the natural and lawful guardian of the son – Umair. A prayer was also made for handing over custody. In the application, it is stated that after the delivery, the Appellant never returned to Baharin. It is stated that many requests were made by the Respondent on telephone to 3 FA.516.04.doc the Appellant to return to Baharin. It is alleged that the Appellant wanted divorce. It is alleged in the application filed by the Respondent that the Appellant was having an affair with one Sameer Sayyed. It is stated that therefore, the Respondent pronounced divorce on 14 th October, 2000. 3 It is alleged in the application that the Respondent deputed his parents to India for taking the custody of the minor son. It is alleged that the Appellant refused to handover the custody of the minor son to the Respondent's parents and made various demands. It is stated that the parents of the Respondent offered to pay a sum of Rs.2,00,000/- and also agreed to comply with the demand made by the Appellant for taking her brother to Baharin as soon as some job available for her brother at Baharin. It is alleged that subsequently, the Appellant married to the said Sameer Sayyed and from her second marriage, a son is born to her. It is alleged that the financial condition of the Appellant and her second husband Sameer is not good and her second husband Sameer is not treating the son Umair properly. It is stated that the Respondent is a resident of Baharin and his financial condition is excellent and he will be 4 FA.516.04.doc able to provide everything for the son. The said application was opposed by the Appellant by filing a reply. Various allegations have been made by the Appellant. The Appellant pointed out that even the Respondent has remarried and has two daughters from the second wedlock. It is stated that the second wife of the Respondent and his two daughters have been living with the Respondent at Baharin. 4 The learned Additional District Judge considered the evidence adduced by he parties. The learned Judge held that merely because the Respondent has performed second marriage was no ground to reject the prayer for custody of minor son Umair. The learned Judge held that the Respondent and his parents were financially sound. The learned Judge also held that the parents of the Respondent will love the minor son Umair more than the daughters of the Respondent. The learned Judge observed that the financial condition of the Appellant was not good and she was under the command of her second husband. It was held that the Respondent will be in position to provide better amenities and educational facilities to the minor son. Therefore, the 5 FA.516.04.doc application made by the Respondent was allowed and the Appellant was directed to handover custody of the minor son to the Respondent. 5 It must be noted here that admittedly, the impugned order has not been acted upon and custody continues to be with the Appellant. 6 The learned counsel appearing for the Appellant submitted that all along the custody of the minor child is with the Appellant – mother. He pointed that there is no finding recorded by the trial Court that the minor son is being ill-treated either by the Appellant or by her second husband. He pointed out that the present age of the minor son is more than twelve years and he is continuously in the custody of the Appellant – mother and it will not be in the interests of the minor son to disturb the custody. He invited attention of the Court to the evidence on record. 7 It must be stated here that the submissions were substantially heard on 18 th February, 2011 and the appeal was adjourned to 25 th February, 2011 for further hearing. On 24 th February, 2011, Civil 6 FA.516.04.doc Application No.649 of 2011 was filed by the Respondent in which a contention was raised that custody of the minor son can be granted to the Respondent's parents. A prayer was made in the said application for framing specific issue relating to physical and financial capacity of the parents of the Respondent for the custody of the minor child and it was prayed that the learned Additional District Judge be directed to record evidence on the said issue. 8 The learned counsel appearing for the Respondent submitted that the Respondent is the father and natural guardian of the minor son. He pointed out that the Respondent has settled down at Baharin and his financial condition is very sound. He submitted the fact that the Respondent has remarried and has two daughters is completely irrelevant. He submitted that the Respondent is in position to give far better facilities to the minor son as compared to the facilities which are being provided by the Appellant. He submitted that considering the welfare of the minor son, custody has been granted to the Respondent. He invited the attention of the Court to the averments made in Civil 7 FA.516.04.doc Application No.649 of 2011. He pointed out that in the said application, it is stated that the custody of the minor son is infact with the parents of the Appellant. It is alleged that the parents of the Appellant are uneducated and they are not able to look after the minor son properly. It is alleged that the real brother of the Appellant, who is staying with her parents, is a drug addict. He submitted that the minor son is surrounded by unhealthy atmosphere in the house of the parents of the Appellant. He submitted that therefore, prayer made in the said application for granting custody of the minor son to the parents of the Respondent may be considered. 9 I have given careful consideration to the submissions. There does not appear to be any dispute that from the birth, custody of the minor son is with the Respondent. Date of birth of the minor son is 19 th December, 1998. The Respondent has been continuously staying in Baharin. The Respondent has also remarried and has two daughters. The present age of the minor son is about twelve years. 10 It will be necessary to make a reference to the reasons 8 FA.516.04.doc recorded by the leaned trial Judge. The learned trial Judge has made a reference to the income of the Respondent and large property possessed by the parents of the Respondent. In paragraph No.14 of the impugned judgment, the learned trial Judge has held that the married sisters of the Respondent are also residing at Baharin. The learned Judge observed that the Respondent was financially in a better position than the Appellant and that Umair being his only son, he will love and take care of the Umair in a better manner than the second husband of the Appellant. In paragraph No. 25 of the judgment, the learned Additional District Court observed thus: “25. ......, though the applicant has performed the second marriage and there is a step mother of Umair it is not a ground to reject the custody of Umair to his father because his mother opponent has performed the second marriage, and she has lost right to retain the custody of her minor son Umair and mother is preferred to step father. Moreover financially applicant and his parents are well based and they have no male child for propogation of their race and vansh. So they will love Umair more than daughters of applicant and parents of applicant, his sister and their family members are settled at Baharin. So Umair will not be secluded and he will be in the company of his relatives. If custody of Umair is kept with opponent-mother she is not too much educated and better employed. She has no constant source of Income. Any how now she is under the command of her second husband and she is helpless due to financial crises to provided amenities and better education to Umair in future. Any how Umair is best in the company of his mother his second step father and grand 9 FA.516.04.doc parents of her mother, on the other hand, he will be legal owner and hair in the family of applicant. So taking into account his betterment and welfare in future, it is just and proper to grant his custody to his father applicant.” 11 The reasons recorded are far from being satisfactory. The fact that the son will be the legal heir of the Respondent is hardly material for considering the welfare of the Minor. Considering the tender age of the minor son and considering the fact that all along he is in the custody of the Appellant-mother, it will not be in the interests of the minor son to disturb his custody at this stage. In the entire judgment of the trial Court, there is no finding recored that the son is not being properly treated by the Appellant or that her husband has ill-treated him. Even the perusal of the evidence on record of the trial Court shows that there is no allegation against the Appellant that the son is not being properly looked after by her. As against this, for several years, the son is not used to company of the Respondent, who is residing at Baharin with his second wife and two daughters. 12 Perhaps faced with this situation, after the submissions were 10 FA.516.04.doc substantially heard that the Respondent has come out with Civil Application No.649 of 2011 by which a prayer is made for granting custody of the minor son to his parents. The parents are not parties to this appeal and therefore, the said request cannot be considered and no adjudication can be made about the alleged right of the Respondent's parents to secure custody of the minor son. They will have to file a substantive application in appropriate Court. 13 Suffice it to say that as of today, it will not be in the interests of the minor that his custody should be disturbed and handed over to the Respondent – father. 14 The orders passed by the trial Court regarding custody of the minors are never final in the sense that in case of drastic change in the circumstances, parties can always approach the Court for appropriate reliefs. 15 Hence, the appeal must succeed and I pass the following order: 11 FA.516.04.doc i. The impugned judgment and order dated 24 th February, 2004 is quashed and set aside and Miscellaneous Civil Application No. 159 of 2003 is dismissed ; ii. However, the Respondent is free to apply to the District Court for grant of suitable access to meet the minor son ; iii. Civil Application No. 649 of 2011 is dismissed only on the ground that the parents of the Respondent are not parties to the appeal and hence, prayer for grant of custody to the parents of the Respondent cannot be considered in this appeal ; iv. However, no adjudication is made on the claim of the parents of the Respondent for the custody of minor son – Umair ; v. The appeal is allowed on above terms with no order as to costs. [ A.S.OKA, J ] After the judgment is pronounced, the learned counsel appearing for the Respondent prays for continuation of interim arrangement regarding access to the child which was operating till the disposal of the appeal. The same interim arrangement shall continue to operate for a period of twelve weeks from today. [ A.S.OKA, J ]