M. Duraiswamy, J.@mdashThe above Civil Miscellaneous Appeal arises against the fair and final order, dated 18.4.2007 passed in G.W.O.P. No. 412 of 2005, on the file of the Family Court, Coimbatore. The Appellant is the husband of the Respondent. The Appellant filed a Petition u/s 7 of the Guardian and Wards Act, 1890 for appointment of the guardian for his minor daughter Rameeja Amrin, aged 5 years and also to direct the Respondent to hand-over the minor daughter to him.
2. The brief case of the Appellant as follows:
According to the Appellant, he is the husband of the Respondent and their marriage was solemnized on 22.8.1999 at Coimbatore. Out of their wedlock, a female child was born on 2.6.2000 and a male child was born to them on 19.5.2004. The Appellant had previously married one Halimunnisha in the year 1996. Through her a female child was born to them. Thereafter, they got divorce as per the Mahomedan Law, leaving the child with his first wife. The Respondent had already married me Syed Rizwan Ryaz previously and through him a female child was born to them. Thereafter, they got divorce leaving the daughter in the custody of the Respondent. Subsequently, the Appellant and the Respondent had married on 22.8.1999. Due to some misunderstanding, in the month of June 2004, the Respondent without informing the Appellant left the matrimonial home with her daughter born through her first husband. The Respondent has neglected to maintain the female child properly. The Respondent did not send the daughter to the School in the month of August, September and October 2004. The Respondent has been ill-treating his daughter. In the mean time, in the month of April 2005, the misunderstanding between the Appellant and the Respondent got aggravated and they got separated. At the time of separation, the Appellant took the minor child Rameeja Amrin with him. The Respondent took the minor child Sahid Adam with her. The Respondent preferred a Police Complaint on 5.5.2005 and also lodged another Complaint in the third week of May 2005 before Podanur Police Station. The Police Officials at the influence of the Respondent compelled the Appellant to hand-over the female child to her in the Police Station itself. Accordingly, the Appellant handed over the custody of her daughter to the Respondent. The Appellant''s action of handing over the female child was not voluntary. On 21.5.2005, the Appellant sent a legal notice demanding the custody of the child. The Appellant is doing independent Civil construction and he is also doing Engineering Consultancy. The Respondent demanded the Appellant to execute a Settlement Deed in respect of the house in her favour. As per the Mahomedan Law, the mother is entitled to the custody of her male child until the age of 7 years and in the case of female child until she attains puberty. In default of the mother, the mother''s mother or father''s mother or sister are entitled to the custody of the child. The Respondent has lost the right of custody since she neglected to take proper care of the child.
3. The case of the Respondent in brief is as follows:
According to the Respondent, under the Mahomedan Law, the mother is entitled to custody of the minor daughter until the minor girl attains puberty. The alleged ill-treatment of the minor daughter Rameeja Amrin stated by the Appellant is false. The Respondent never ill-treated the minor daughter. The Respondent is looking after the miner daughter properly. The Respondent is able to give education, food and clothing to the minor. The Appellant has no right to claim the custody of the minor daughter. Since the Appellant is the natural guardian of the minor, he need not be appointed as guardian of the minor. In these circumstances, the Respondent prayed for dismissal of G.W.O.P.
4. Before the Family Court, on the side of the Appellant four witnesses were examined and 21 documents, Exs. P1 to P21 were marked and on the side of the Respondent, she was examined as RW. 1 and two documents, Exs. R1 & R2 were marked.
5. The Family Court after taking into consideration the oral and documentary evidences of both parties, dismissed the Petition. Aggrieved over the dismissal of the G.W.O.P., the father of the child has filed the above Appeal.
6. Heard Mr. L. Murali, learned Counsel appearing for the Appellant and Mr. N. Manoharan, learned Counsel appearing for the Respondent.
7. It is not in dispute that the Appellant is the husband of the Respondent and that a girl child by name Rameeja Amrin was born to them on 2.6.2000. Another male child was born to them on 19.5.2004. Both the children are in the custody of the Respondent. Due to some misunderstanding between the Appellant and the Respondent, in the month of June 2004, the Respondent left, the matrimonial home with her daughter. Though the Appellant alleged that the Respondent ill-treated his minor daughter, the Respondent denied the allegations made against her.
8. The learned Counsel appearing for the Appellant submitted that in the matter of custody of a minor child, the paramount consideration is the welfare of the minor and not the rights of the parents or relatives under the statute which are in force. Thus the provisions of the personal law are to be applied consistently with the provisions of the Guardians and Wards Act. The learned Counsel appearing for the Appellant further submitted that the welfare of the minor can be determined only on the has is of evidence for which opportunity will have to be afforded to the party seeking it.
9. In support of his contention, the learned Counsel appearing for the Appellant relied upon the following judgments:
(i) In Shyamrao Maroti Korwate v. Deepak Kisanrao Tekam, 2011 (2) MLJ 875 (SC), wherein the Honourable Supreme Court has held as follows:
It is true that under the Act 1890, the father is the guardian of the minor child until he is found unfit, to be a guardian of the minor. In deciding such question, this Court consistently held that the welfare of the minor child is the paramount consideration and such a question cannot be decided merely on the basis of the rights of the parties under the law.
(ii) In Gaurav Nagpal v. Sumedha Nagpal, 2009 (6) CTC 497 (SC) : 2009 (2) MLJ 1036 (SC), wherein the Honourable Apex Court has held as follows:
I. In determining as to who should be given custody of a minor child, the paramount consideration is the welfare of the child and not the rights of the parents under a statute for the time being in force.
II. Guardian Courts in case of dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of the welfare of the minor children and the rights of their respective parents over them.
(iii) In
Thus, the provisions of the personal law are to be applied consistently with the provisions of the Guardians and Wards Act. The welfare of the minor can be determined only on the basis of evidence for which opportunity will have to be afforded to the party seeking it.
10. Countering the submissions made by the learned Counsel appearing for the Appellant, the learned Counsel appearing for the Respondent submitted that as per the Mahomedan Law, the custody of the female child should only be with the mother till the minor attains puberty.
11. In support of his contention, the learned Counsel appearing for the Respondent relied upon the judgment in
12. On a careful consideration on the materials available on record and the submissions made by both the Counsel, it could be seep that the Honourable Apex Court repeatedly held that in determining as to who should be given the custody of a minor child, the paramount consideration is the welfare of the child and not the rights of the parents under the statute for the time being in force. The Guardian Courts in case of dispute between the mother and the father, is expected to have a just and proper balance between the requirements of the welfare of the minor children and the rights of their respective parents over them.
13. As per Section 352 of the Mahomedan Law, the mother is entitled to the custody of her male child until he has completed the age of seven years and of her female child until she attains 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.
14. u/s 354 of the Mahomedan Law, the mother, who is otherwise entitled to the custody of a child, loses the right of custody-
(1) if she marries a person not related to the child within the prohibited degrees but the right revives on the dissolution of marriage by death or divorce (o); 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 (p); or
(4) if she neglects to take proper care of the child.
15. The Appellant is contending that as per Section 354, sub-clause (4) of the Mahomedan Law, the Respondent/mother is not entitled to the custody of the child, since she neglected to Jake proper care of the child. The Appellant contended that she has neglected to maintain the daughter properly and she has not sent the daughter to the School.
16. As already stated in the case of custody of the minor child, the paramount consideration is the only welfare of the child. The word welfare does not mean physical comfort alone. Further, the financial position is also not a criterion to grant custody to the party. It is also not in dispute that father is the natural guardian of the child. However, merely because the father is the natural guardian, he is not entitled to claim the custody on the strength of the legal rights. Though the Appellant alleged that the Respondent/mother ill-treated and inflicted injuries on the minor daughter, there is no evidence to support the said allegations. Similarly, there is no evidence to prove the allegation that the minor child was forcibly taken away by the Police officials.
17. It is also pertinent to note that the Respondent had filed a Petition in M.C. No. 111 of 2005 for maintenance. However, the Appellant has not paid the maintenance amount as directed by the Court. Challenging the order passed by the Family Court in the maintenance Petition, the Appellant filed a Revision Petition before this Court. The conduct of the Appellant would only show that he is not interested in the welfare of the child. Though the Appellant contended that the Respondent neglected to take care of the minor child properly, the said contention was not proved by the Appellant by adducing acceptable evidence. The contention of the Appellant that the Respondent failed to send the minor daughter to the school has been disproved by the documents Ex. R1 & R2. Since the minor child is a girl, as per the Mahomedan Law also, the custody of the minor should only be with the mother till the minor attains puberty. The child cannot be deprived of the love and affection of her mother. If the Appellant was able to prove the allegations made against the Respondent, in that case, the Court could have considered the change in custody from the mother. In the case on hand, though the Appellant has made so many allegations, the allegations remained not proved. If the Appellant is really interested in the welfare of the minor child, he would have paid the maintenance amount to them without challenging the order passed by the Family Court The conduct of the Appellant would only prove that he is not interested in the welfare of the minor child. In these circumstances, we are of the considered view that the custody of the minor child would be safe if she remains with the mother/ Respondent. Therefore, we find no necessity to separate the child from the custody of the mother. Further, the minor child cannot be deprived of motherly love and affection.
18. Since the Appellant is the father of the minor child, who is also the natural guardian of the child, there is no necessity to appoint him as guardian of the child. The Family Court rightly rejected the said prayer. The Family Court rightly dismissed the Petition filed by the Appellant for custody of the child. However, the Family Court gave visitation rights to the Appellant allowing him to see the child two days in a month, particularly, on the second and third Sunday of every month between 10.00 am to 12.00 noon. In these circumstances, we find no ground to interfere with the fair and final order of the Family Court, Coimbatore passed in G.W.O.P. No. 412 of 2005. The Civil Miscellaneous Appeal is liable to be dismissed. Accordingly, the same is dismissed. However, there shall be no order as to costs.
