In view of the above, now it is settled that it is the
interest of the children that needs to be considered. Mere desire
of a child at a tender age is not a sole factor to be considered for
taking decision in respect of the custody. The child at the tender
age is not fully aware of his welfare. There is always tendency to
be with parent with whom they are residing. They are mostly
influenced by tutoring by the parents. Interaction with child is
thus influenced by such parents. In the present case also, this
court interacted with the children. The children naturally stated
that they are happy with the father. However, it must be
considered that presently children are in custody of the father
and as expected, answer has come in favour of the father.
{Para 12}
13. So far as better company and care is concerned, it is
seen that almost every member in the family of the husband is
occupied in the business. There is only grand-mother of the
children who is in the house for whole day. In the house of the
wife, she is always at home. She stays with her parents. There
are other relatives in the family. So far as deprivation of the
company is concerned, it needs to be noted that both the parties
are staying in the same town. Distance between the houses of
husband and wife is not more than 2 km. Thus, visitation by
parent would not be much difficult. Husband can always meet
children at convenient place. Husband and wife are related to
each other even prior to marriage. One more factor needs to be
considered is that there is one female child who is staying with
mother. If all the siblings stay together it would help children in
growing together. Being female child she requires care and
attention of the mother. Under Muslim Law, custody of the
children below 7 years is required to be with the wife.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1708 OF 2024 WITH CA/7330/2024 IN FA/1708/2024
Mukhtar S/o. Yunus Sayyad, Vs Habiba W/o. Mukhtar Sayyad,
CORAM : KISHORE C. SANT, J.
PRONOUNCED ON : 28th AUGUST, 2024
1. This appeal is preferred against the judgment and
order passed by the learned District Judge, Aurangabad dated
09-05-2024 in Civil Misc. Application No. 364/2022 directing
the present appellant-original respondent No.1 to hand over the
custody of children to present respondent No.1. Present
appellant is the husband-original respondent No.1 in Civil Misc.
Application No.364/2022. Present respondent No.1 is the
original petitioner in the said application. Present respondent
Nos. 2 to 7 are original respondent Nos. 2 to 7, who are parents,
brothers and family members of the appellant husband.
2. The appellant is referred to as ‘husband’ and
respondent No.1 is referred to as ‘wife’ and respondent Nos.2 to
7 are referred to as ‘relatives’ for the purpose of convenience.
3. The wife filed an application under Section 25 of the
Guardians and Wards Act, 1980 for custody of the minor
children from the husband.
4. The case in short, is that the husband and wife got
married on 24-04-2015 as per Muslim rites. There are two sons
namely Sayyad Mohammad who was 5 years of age and Sayyad
Sarmad who was 2 years of age at the time of filing application
and one daughter namely Fatima born out of said marriage. It is
the case of the wife that after the marriage she was staying in a
joint family. After few days of the marriage, she was ill-treated at
the hands of in-laws for demand of Rs.1.50,000/- for opening
imitation jewelry shop. The wife therefore was constrained to
file to lodge a First Information Report with Pachod Police
Station for the offence punishable under Section 498-A, 504,
506 read with Section 34 of the IPC. On the basis of FIR, Crime
No. 297/2022 was registered. Same is pending. Since she was
driven out of the house, she had filed proceeding under Section
97 of the Cr. P. C. seeking custody of the minor children. Both
the proceedings are pending before the learned trial court. The
wife thereafter filed Misc. Application No. 364/2022 for custody
of children being natural guardian of the children. It is her case
that she is in a position to take care of the children. She can look
after their education up bringing of the child etc.
5. It is the case of the husband and relatives that
financial condition of the family and husband is sound.
Allegations about ill-treatment and harassment are denied.
Specific incident dated 27-07-2022, is denied i.e. driving out of
the wife from house. The children are taking good education
and they are looked after by the family. The children show good
progress in the school. Though there were attempts on the part
of the husband to call the wife for cohabitation, it is the wife
who did not come for cohabitation. The husband is also a
natural guardian.
6. However, there was no evidence laid by the
husband’s side. The court therefore, decided the application
directing the parties to give custody of the children to the wife.
The husband challenged the order before this court. This court
remanded the application with direction to give opportunity to
the husband to adduce evidence. It is, thereafter, main
application again came to be decided after taking evidence. It is
this order, which is now under challenge. In the impugned
judgment and order, the learned trial court observed that wife
can take best care of the children. Minor children need company
of the mother. It is the mother who can take proper care of the
children by paying attention. She has sufficient time for children
as she is a housewife and not involved in any business. As
against that husband is busy with his grocery shop and does not
have time to look after the children. It has come on record that
there was also a notice for ‘restitution of conjugal rights’.
However, there was no reply. It is observed on the basis of
evidence that husband runs grocery shop etc and directed the
custody of children to be handed over to the wife.
7. This court has gone through the record and
proceedings and evidence in the matter. This court also
interacted with the children to access their situation and to ask
their willingness. The children presently are in the custody of
the husband and thus very naturally they stated they are happy
with the father and they do not want to go with the mother.
8. Learned advocate for the appellant vehemently
argued the appeal. He submits that observations of the court are
against facts on record. It is the father who can take decision in
the interest of the children. The wife is educated only up to 8th
std. whereas husband is educated up to BA. His grocery shop
business is flourishing one. His brother is also having tea-stall.
His another brother runs a footwear shop near bus-stand.
However, this evidence is ignored by the learned court. Children
are taking education in a reputed school namely Jain English
School at Pachod. Progress report of children in school is not
properly appreciated. He relied upon compilation of the
documents produced on record to show that son Mohammad &
Sarmad are taking education in Gurukul English School. In spite
of issuance of notice, wife has not come for co-habitation.
Though the wife has left the house on 27-07-2022, no attempts
were made for seeking custody. The custody was sought much
time after leaving the house. Even the children do not want to
go to reside with the mother. There are many people residing in
the house of the parents of the wife because of this mother
would not in position to take care of children. Now the children
are settled in the husband’s house. Learned advocate for the
appellant relied upon the judgment reported in 2024 SCC
Online SC 225 in the case of Shazia Aman Khan and Another Vs
State of Orissa and others.
9. As against that Mr. Sayyed, learned advocate for the
respondents submits that there is no female member in the
family of the husband to look after the children. Financial
condition is not sole criteria while considering the matter of
grant of custody of minor children. The learned trial court has
rightly observed, on the basis of evidence, that the children are
found vulnerable to tutoring and developing general negativity.
Children are only of 5 years & 2 years requiring company of the
mother. He relied upon the judgment reported in 2022 LiveLaw
(SC) 643 RohithThammana Gowda Vs State of Karnataka and
Ors.
10. In the case of Shazia Aman Khan (supra) the Hon’ble
Apex Court has considered the concept of custody, guardianship
and stability of child. It is held that the court has to look at
stability and security of the child as essential for full
development of child’s talent and personality. It is reiterated that
paramount consideration in the matter of custody is welfare of
the children. It is further held that while deciding the matters of
custody, wish of the children is also one of the factors that
requires consideration. In that case, child was called to the court
for interaction. Parents were also called for interaction. In that
case, court found that child was quite intelligent who could
understand her welfare. In that case, child expressed that she
does not want to be destabilize. Thus, from the interaction with
the child the Hon’ble Apex Court had decided not to disturb the
custody of the child.
11. So far as judgment in the case of Rohith Thammana
Gowda (supra) is concerned, the Hon’ble Apex Court directed to
give custody to the mother as it was satisfied that the child was
comfortable and secure with his mother. The order directing to
give custody to the mother was maintained. In the case reported
in AIR 1988 Kerala 30 Suharabi Vs Muhammed the Kerla High
Court directed to hand over custody to the mother by setting
aside the judgment and order of the learned District Judge. It
was considered that the children were of tender age and it was
in the interest of children to be in the custody of the mother. In
Writ Petition No. 2048/2023 Abhishek Ajit Chavan Vs Dr. Gauri
Abhishek Chavan this court at Bombay, on considering various
factors, interacted with the child in the chamber. Though the
child expressed her desire to be with her father, this court held
that the comfort of the child is one of the factors to be taken into
consideration while considering the welfare of the child. It was
considered that child was of 8 years of age. Child at the age of 8
years would normally be driven by her immediate comfort. The
court after considering the family position of the parties & that
mother was only having part time job and thus would be in the
house for most of the time in a day, dismissed the petition of the
husband.
12. In view of the above, now it is settled that it is the
interest of the children that needs to be considered. Mere desire
of a child at a tender age is not a sole factor to be considered for
taking decision in respect of the custody. The child at the tender
age is not fully aware of his welfare. There is always tendency to
be with parent with whom they are residing. They are mostly
influenced by tutoring by the parents. Interaction with child is
thus influenced by such parents. In the present case also, this
court interacted with the children. The children naturally stated
that they are happy with the father. However, it must be
considered that presently children are in custody of the father
and as expected, answer has come in favour of the father.
13. So far as better company and care is concerned, it is
seen that almost every member in the family of the husband is
occupied in the business. There is only grand-mother of the
children who is in the house for whole day. In the house of the
wife, she is always at home. She stays with her parents. There
are other relatives in the family. So far as deprivation of the
company is concerned, it needs to be noted that both the parties
are staying in the same town. Distance between the houses of
husband and wife is not more than 2 km. Thus, visitation by
parent would not be much difficult. Husband can always meet
children at convenient place. Husband and wife are related to
each other even prior to marriage. One more factor needs to be
considered is that there is one female child who is staying with
mother. If all the siblings stay together it would help children in
growing together. Being female child she requires care and
attention of the mother. Under Muslim Law, custody of the
children below 7 years is required to be with the wife.
14. So far as financial condition is concerned, the court
has rightly taken care of that aspect directing husband to pay an
amount per month to each children. [In the order it, however
wrongly appears that wife is directed to pay]
15. This court finds that the learned trial court has
considered all the evidence and has rightly arrived at the
conclusion. No case is made out to disturb the said findings of
fact. Thus in view of the discussion above, this court finds that
there is no merit in the appeal and appeal deserves to be
dismissed. The learned trial court had directed custody to be
handed over within a period of one month from the date of
judgment, however, that period is now over. Therefore, this
order to take effect within one month from today. Rest of the
order is maintained as it is. The husband is directed to pay an
amount per month by correcting the order of the learned trial
court as discussed in para No.14 of this judgment.
16. In view of above, appeal stands dismissed off.
17. In view of disposal of the appeal, the civil
applications, if any stand disposed off.
[KISHORE C. SANT, J.]
LATER ON:
1. At this stage the learned advocate for the appellant
seeks continuation of the interim order.
2. The request is vehemently opposed by the learned
advocate for the respondent. He submits that during the
pendency of the application, she was not allowed to see the
children by the husband.
3. In view of the same, following arrangement:
(i) Stay continued for next four weeks.
(ii) The interim arrangement to continue till next
four weeks, by way of interim arrangement. For next
four weeks, the wife is allowed to see the children at
the house of the husband by way of interim
arrangement and to take the children on every
Saturday After school time is over and she will send
back the children on every Monday in the morning
for school purpose to husband.
[KISHORE C. SANT, J.]
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