We are of the considered opinion that the impugned
directions issued granting limited visitation rights to the father
during holidays is only in the welfare of the child and that the
paramount consideration that has to weigh with the appellate court
as well as the Family Court, is the welfare of child in a case like the
instant one. The welfare of the child demands that he should get
not only the love and affection of the mother but also that he should
have the opportunity to meet and interact with his father during
limited periods of holidays so that he also enjoys the care and love
of the father. Otherwise, the growth of the child, who is now aged
only hardly four years old (born on 25.12.2009) will not get a well
balanced and harmonious exposure to the love and care of both his
father and mother. Merely because the personal law gives custody
of the minor son until he completes the age of 7 years in favour of
the mother, does not lead to a situation of complete obliteration of
the necessity of the child to get interaction and exposure with his
father and it cannot be interpreted that the provision of the
Mohammedan Law should be hyper technically interpreted and
enforced leading to a situation whereby it is in derogation and
flagrant violation of the aspect, which demands that the paramount
consideration should be the welfare of the minor child. As clearly
held in Mumtaz Begum v. Mubarak Hussain reported in AIR 1986
M.P. 221 that even if the mother must have custody of the child of
the tender age, until the age of 7 years, the father must not be
denied access to the child. Accordingly, we are of the considered
opinion that the court below has not committed any illegality in
issuing the impugned direction in the impugned judgment that the
father should be given limited visitation rights and consequential
interim custody of the minor boy during Onam, X'mas and Summer.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE V.K.MOHANAN
&
MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 6TH DAY OF NOVEMBER 2014
Mat.Appeal.No. 517 of 2014
------------------------------
OP(G&W) NO.2192/2013 OF FAMILY COURT, ATTINGAL.
BUSHARA, AGED 26 YEAR
Citation;AIR 2015 kerala 21
The appellant herein (Bushara/wife) is the respondent in O.P
(G&W) No. 2192/2013 filed before the Family Court, Attingal, by the
respondent herein (Shibinu/husband) with the prayer for
permanent custody of his minor son after declaring him as the
guardian. The marriage between the appellant herein (wife) and the
respondent herein (husband) was solemnized in accordance with
the customs and rites of Muslim community and a son was born in
their wedlock. The marriage got strained and the respondent herein
(husband) pronounced talaque on the appellant herein (wife) on
16.3.2013. Thereafter, the respondent herein (husband) filed the
above said original petition before the court below for declaring him
as the guardian of the minor son and for his permanent custody.
The court below held that, as per Section 352 of the Mohammedan
Law, the mother is entitled to the custody of the minor male child
until he has completed the age of 7 years and that it is settled law
that the court has discretion to pass appropriate orders overlooking
such personal law in the light of the provisions of the Guardians
and Wards Act and that the court below finds no reason to
disqualify the mother to have custody of the minor son until he
completes the age of 7 years and that orders passed in respect of
custody of the child can be altered in change of circumstance. The
court below specifically considered the issue as to whether the
father is capable of taking care of the child, keeping in view his
employment responsibilities and came to the conclusion that the
father, who is working in Malappuram district, will not be able to
look after the affairs of the minor child when compared to the
mother, who is not employed. For that reason the court below
reached the considered conclusion that for the time being the
permanent custody of the child cannot be given to the father and
that there is no necessity to grant a declaration as prayed for.
2. But the court below granted certain limited visitation
rights and custody of the minor child to the respondent herein
(husband) during Onam, X'mas and summer vacation of the school
etc. The court below held in the impugned judgment as follows:
"a) Until the child completes the age of 7 years, the
father is allowed to have only a right of visitation and custody
during holidays of Onam and X'mas and summer vacation of the
school by directing the mother to hand over the child to the father
for one week during Onam and X'mas Holidays and for a fortnight
during April and May of every year. The father shall serve a notice
to the wife or her counsel to cause production of the child before
the court on each occasion for the said purpose and parties shall
hand over the child at the court premises by making necessary
entries in the records maintained by the court for the said
purpose.
child from 10Thehe tobear
for which alsoa.mfather give prior intimation to the wife or her
b) is also allowed to have the company of the
3 p.m. on every working alternate Saturdays,
counsel and he shallshall the expenses for bringing he child to the
court and return.
c) Parties are at liberty to approach this court, if they
want any alteration of the above arrangement on valid grounds by
filing application.
d) Regarding the custody of the child after the child
completes 7 years further orders will be passed on application of
the father, until that time the custody will be with the mother,
subject to the above conditions.
e) Since both the parties are natural guardians, in the
given circumstance, I am not inclined to declare the father alone
as the guardian as prayed for.
f) No orders as to cost."
Accordingly, the court below held that the custody of the minor
child until he reaches the age of 7 years will be with the mother
subject to limited visitation rights and interim custody during
holidays as stated above and that the issue regarding the custody of
the child after he completes the age of 7 years, is to be decided by
considering further orders that may be passed on any such
application that may be moved by the father and that until that
time, the custody shall be with the mother, etc.
3. Though the appellant herein (wife) succeeded
predominantly in the litigation before the court below, she has
chosen to institute this matrimonial appeal by projecting that she is
aggrieved by the impugned judgment to the limited extent that it
permits visitation rights and interim custody of the minor child
during holidays in favour of the respondent herein (husband).
4. Heard Sri.Dinesh, the learned counsel for the appellant
herein (wife) and Sri.M.Sreekumar, learned counsel appearing for the
respondent herein (husband) through caveat.
5. The main contention of the appellant is that under
Section 352 of the Mohammedan Law, the custody of the minor son
until he completes the age of 7 years, shall be under the control of
the mother and not on the father, irrespective as to whether the
mother is a divorcie or not and that the court below has violated the
personal law by directing to give visitation rights and interim
custody of the minor son to the respondent herein (husband) during
the holidays as stated above, and that the impugned directions
issued by the court below to hand over the custody of the child in
Onam, Christmas and summer vacation are erroneous and in
flagrant violation of the personal law and amounts to
misinterpretation of personal law of Muslims and that the personal
law gives full protection to the minor son by giving his custody right
exclusively to the mother upto the completion of 7 years by the
child and that if such limited visitation rights and consequential
interim arrangement is ordered by the court below, it will amount to
violation of the personal law. Therefore, it is contended that the
impugned judgment to the limited extent it grants temporary
visitation rights and consequential interim custody of the minor son
in favour of the husband during holidays is an illegality committed
by the court below, which warrants interference at the hands of the
appellate court.
6. We are not impressed by these submissions and plea
made by the learned counsel for the appellant for reasons more
than one. Mulla Principles of Mahomedan Law, edited by Justice
M.Hidayathullah (former Chief Justice of India) and Sri.Arshad
Hidayathullah (LexisNexis - Butterworths Wadhwa) (19th edition
Page 287), deals with the issue. Chapter XVII Part B thereof deals
with the guardianship of person of a minor and Section 352
thereunder, may be quoted below for easy reference:
"Sec.352. Right of mother to custody of infant children.-
The mother is entitled to the custody of (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."
After quoting the above provision of Muslim Personal Law, the
learned authors state cogently that the principles propounded in
these sections cannot, however, be read in isolation and divorced
from the provisions of the Guardians and Wards Act, which vests in
the court a discretion to direct return to the custody of a guardian a
ward, who leaves or is removed from his custody in appropriate
cases where the Court thinks that such a direction is necessary for
the wellbeing of the ward and that where the case of personal law
indicates one course of action and considerations of the welfare of
the minor indicates another, the former must be sub-ordinated to
the latter. The words that furnish a key to the correct legal position
are to be found in Sec.17 of the Guardians and Wards Act and that
the principles of personal law must be applied, "subject to the
provisions of this Section" (viz., Section 17). Accordingly, it is opined
by the learned authors that if there is a conflict between the
personal law to which the minor is subject and considerations of his
or her welfare, the latter must prevail as held in the case Mohd.
Yunus v. Shamshad Bano, reported in AIR 1985 All. 217.
7. It has been held in Momtaz Begum v. Mubarak Hussain
reported in AIR 1986 M.P. 221 that even if the mother must have
custody of the child of tender age, till he attains the age of 7 years,
the father must not be denied access to the child. In the case
Imambadi v. Mutsaddi reported in (1918) 45 Indian Appeals (I.A.)
73, p.83-84, their Lordships of the Privy Council held that "It is
perfectly clear that under the Mohammedan Law the mother is entitled
only to the custody of the person of her minor child upto a certain age
according to the sex of the child. But she is not the natural guardian, the
father alone, or, if he be dead, his executor (under the Sunni law) is the
legal guardian." Justice M.Hidayatullah, who has authored the above
mentioned authoritative textbook, has opined that it would appear
from the passage quoted above from the Privy Council decision that
the father is the primary and natural guardian of his minor children,
and that the right of custody of the mother and female relations
mentioned in Sec.353 below is subject to the supervision of the
father, which he is entitled to exercise by virtue of his guardianship.
If so, the right of hizanat does not carry with it all the powers which
a guardian of the person of a minor has under the Guardian and
Wards Act,1890. It has been held in case Mohammed Shafi v.
Shamin Banoo reported in AIR 1979 Bom. 156 that even during the
marriage, the custody of the minor children in case of a boy until he
attains the age of 7 years, and in the case of a female until she
attains puberty, is with the wife.
8. The only challenge made in this appeal is to the orders
granted by the court below in the impugned judgment to the limited
extent that the father should be given intermittent visitation rights
and consequential interim custody of the minor boy during Onam,
Christmas and Summer vacation.
9. We are of the considered opinion that the impugned
directions issued granting limited visitation rights to the father
during holidays is only in the welfare of the child and that the
paramount consideration that has to weigh with the appellate court
as well as the Family Court, is the welfare of child in a case like the
instant one. The welfare of the child demands that he should get
not only the love and affection of the mother but also that he should
have the opportunity to meet and interact with his father during
limited periods of holidays so that he also enjoys the care and love
of the father. Otherwise, the growth of the child, who is now aged
only hardly four years old (born on 25.12.2009) will not get a well
balanced and harmonious exposure to the love and care of both his
father and mother. Merely because the personal law gives custody
of the minor son until he completes the age of 7 years in favour of
the mother, does not lead to a situation of complete obliteration of
the necessity of the child to get interaction and exposure with his
father and it cannot be interpreted that the provision of the
Mohammedan Law should be hyper technically interpreted and
enforced leading to a situation whereby it is in derogation and
flagrant violation of the aspect, which demands that the paramount
consideration should be the welfare of the minor child. As clearly
held in Mumtaz Begum v. Mubarak Hussain reported in AIR 1986
M.P. 221 that even if the mother must have custody of the child of
the tender age, until the age of 7 years, the father must not be
denied access to the child. Accordingly, we are of the considered
opinion that the court below has not committed any illegality in
issuing the impugned direction in the impugned judgment that the
father should be given limited visitation rights and consequential
interim custody of the minor boy during Onam, X'mas and Summer
vacation as directed therein. We have considered only the legality or
otherwise of the above said impugned direction regarding the
visitation rights and we have not dealt with or considered the
legality or otherwise of any of the other directions or findings made
therein. This is because the only point on which the judgment of the
court below is impugned in this appeal is regarding the issue of the
limited visitation rights given to the father.
Accordingly, we hold that the Matrimonial Appeal is bereft of
any merit and is accordingly, dismissed.
There will be no order as to costs.
Sd/-
V.K.MOHANAN, JUDGE
Sd/-
ALEXANDER THOMAS, JUDGE
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