Welfare, education and day-to-day needs are of paramount importance while deciding custody of minor: High Court of Jammu and Kashmir

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CFA no.08 2018 Sameera Begum Khalil Mohammad Hajam Reserved on: 12.04.2021 Pronounced on: 22.06.2021 Through: Mr M. Altaf Khan Advocate Through: Mr H.A.Wani Advocate CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE 1. Impugned in this Civil First Appeal is judgement dated 16th March 2018 passed by District Judge Kupwara on a Petition under Guardian and Wards Act for custody of minor Nuzhat Jan bearing Guard Applcn no.18 titled Khalil Mohammad Hajam v. Sameera Begum on the grounds made mention of therein. 2. I have heard learned counsel for parties and considered the matter. 3. A petition under Guardian and Wards Act as is discernible from the record on the file was filed by respondent before the Trial Court in which he sought custody of his daughter as being biological father of minor Nuzhat Jan. Appellant resisted guardian application of respondent. CFA no.08 2018 4. Respondent in support of his application for guardianship produced and examined four witnesses besides himself. In rebuttal appellant produced and examined three witnesses besides herself. And by impugned judgement allowed application of respondent. 5. It is contention of learned counsel for appellant that impugned judgement has been passed against the facts and circumstances of the case. It is also contended that Trial Court has considered rights of parties without considering intervening the minor her thoughts her ideas and wishes as if minor is some sort of property which is to be given in custody. It is also averred that welfare of the child which has to be of paramount consideration is to be taken note of by the court but in the present case the Trial Court has not considered the fact that the welfare of minor will be in the custody of appellant and not that of respondent. 6. When impugned judgement is analyzed on the edifice of above submission of learned counsel it becomes unequivocal from the record as also from perusal of impugned judgement that the Trial Court has taken all facets of the matter into consideration and discussed elaborately all facts and circumstances of the case including the statement of witnesses. It also comes to fore that present appellant had been divorced by respondent and she has remarried and even she has three issues from her second marriage inasmuch as it was not appellant looking after the minor but it was maternal grandfather of minor who was looking after the minor. In such circumstances it cannot be heard the Trial Court has not considered the facts and circumstances of the 3 CFA no.08 2018 case as also evidence on record in its right perspective. The Trial Court has rightly said that education and day to day needs of minor is of paramount importance which can be fulfilled by respondent more particularly when her motherhas remarried and is living with her second husband. The Trial Court has also correctly said that minor can only inherit property of her father and not that of her grandfather. And it is only after taking into consideration these important facets of the matter that Trial Court has passed impugned judgement which is lucid luculent and elaborate and does not warrant any interference and as a corollary thereof instant Appeal is liable to be dismissed. 7. For the reasons discussed above the instant Appeal is dismissed with connected CM(s). Interim direction if any shall stand vacated. 8. Trial Court record along with copy of this judgement be sent down. Vinod Chatterji Koul) Judge Ajaz Ahmad PS Whether the order is reportable: Yes No. 

Summary: When the custody of a minor is being decided between two parents, aspects like the welfare, education and day-to-day needs of the child must be given paramount importance by the court. This basis on which custody should be granted was outlined in the judgement passed by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Vinod Chatterji Koul in the case of Sameera Begum v Khalil Mohammad Hajam [CFA No. 08/2018] pronounced on 22nd June 2021. The appellant, Sameera Begum and respondent, Khalil Hajam got a divorce and a petition was filed before the District Court in Kupwara for the custody of their minor child under Guardian and Wards Act. The Distrcit judge ruled in favour of the child’s father who is the respondent in this case. As a result of this, an appeal was filed by the mother in the High Court of Jammu and Kashmir. The appellant contended that the trial court failed to consider the facts and circumstances of the case and that the minor’s best interests were ignored. It was also added that the minor should not be treated like some kind of property which is to be given custody. Upon considering and discussing the various facts and witness statements produced by both sides, the court noted that upon getting divorced by the respondent, the appellant remarried and had three children from her third marriage. It was also noted that while the minor was in custody of the appellant, it was not the appellant herself but the child’s maternal grandfather who was looking after her. The court came to the conclusion that the appellant was unable to devote as much time with the minor due to her second marriage and that the child was better off with her father than her maternal grandfather.