Dr. Rashid Jamil Siddiqui vs Dr. Smt. Sadiya Hussain & others

Appellant has filed this appeal against the judgment dated 30/09/2013. By the aforesaid judgment, the trial court refused to grant custody of

children Mohd. Aman Siddiqui and Mohd. Fadil Siddiqui to the appellant, however, the trial court granted permission to the appellant to meet with

the children.

Marriage of appellant and respondent no. 1 wife was solemnized on 28/09/2002 at Jabalpur in accordance with Muslim rituals. Appellant and

respondent both lived in Barabanki, thereafter at Saudi Arabia. It is an admitted fact that appellant is working as doctor at Saudi Arabia.

Respondent is also a doctor (eye surgeon). She is working at Jabalpur. Respondent was in service and served as doctor in Saudi Arabia,

however, she returned back after sometime. Respondent pleaded that nature and act of the appellant was not proper. He practiced cruelty that is

why she left job at Saudi Arabia and returned back to Jabalpur. At present she has a private clinic and also working in a Nursing Home.

Respondent lodged report under Section 498-A against the appellant and case is pending.

Appellant sought guardianship of children on the ground that respondent is not able to maintain them properly. They are not getting good

education. Appellant has sufficient means to incur the expenses of education of his children. Appellant further pleaded that his family members are

living in Barabanki and he is working in Saudi Arabia and there is good facility of education to his children. Same facts have been argued by the

counsel for the appellant. Learned counsel for the appellant further submitted that the trial court did not consider the statutory provisions of Section

7 and 25 of Guardians and Wards Act, 1890 while rejecting application of appellant for grant of guardian-ship and custody of minor children.

Learned counsel for the appellant relied on following judgments in support of his contentions.

Ram Kishore Singh Vs. Nirmala Devi Kushwaha 2006(3) MPLJ 194.

J. Selvan Vs. N. Punidha 2007(4) CTC 566.

Mohan Kumar Rayana Vs. Komal Mohan Rayana (2010) 5 SCC 657.

Learned counsel for the respondent has submitted that since birth, both the children have been living with the respondent. They are getting

proper education. They have refused to live with appellant. Welfare of children is very well looked after by respondent. The trial court has

considered all the aspects and granted proper custody.

Apex Court in the case of Purvi Mukesh Gada Vs. Mukesh Popatlal Gada and another (2017) 8 SCC 819 has held that welfare of minor is

paramount consideration while considering the case of custody of minor. The Apex Court has held as under:-

10.5 The High Court has discussed the law on custody of children and explained the ''welfare principle'', which is the paramount consideration

while deciding custody matters is to see where the welfare of children lies. Applying this principle, the direction is given to restore the custody of

the children to the respondent after the end of academic term in April or May 2016.

We may say at the outset that though the ''welfare principle'' is correctly enunciated and explained in the impugned judgment, no reasons are

given as to how this principle weighed, on the facts and circumstances of this case, in favour of the respondent. Instead two main reasons which

have influenced the High Court are: (i) earlier detailed orders are passed by the Additional ACMM allowing the respondent to retain the custody;

and (ii) the appellant here had not given access of children to the respondent even during weekend, in spite of orders passed by the High Court.

After hearing the counsel for the parties at length, we are of the opinion that the matter is not dealt with by the High Court in right perspective.

Before supporting these comments with our reasons, it would be apposite to take note of certain developments from June 17, 2015, the date on

which the respondent had himself handed over the children to the appellant, till the passing of the orders by the High Court. It is also necessary to

state the events which took place during the pendency of these proceedings.

Section 7 of Guardians and Wards Act 1890 reads as under:-

Power of the Court to make order as to guardianship.-

(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made-

(a) appointing a guardian of his person or property or both, or

(b) declaring a person to be such a guardian the Court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or

declared by the Court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing

or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have

ceased under the provisions of this Act.

The aforesaid section has been considered by the Apex Court in the case of Ruchi Majoo Vs. Sanjeev Majoo, (2011) 6 SCC 479 and has held

as under:-

Interest and welfare of the minor being paramount, a competent court in this country is entitled and indeed duty bound to examine the matter

independently, taking the foreign judgment, if any, only as an input for its final adjudication. Decisions of this Court in In Dhanwanti Joshi v.

Madhav Unde 1998(1) SCC 112 and Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14 (supra) clearly support that proposition.

The dictum of law is that court has to consider welfare of minor while making order in regard to guardianship of a minor. In the present case

both the minor sons have stated during mediation proceeding that they did not want to live with the appellant. The same facts have been recorded

in the mediation proceeding dated 20/11/2017. It is mentioned that children refused to have meeting with the appellant. The appellant himself made

allegation that minds of the children poisoned. Apart from this it is a fact that the appellant has been working in Saudi Arabia. Respondent is also in

job. She is earning decent amount because she is an eye surgeon. She has private clinic as well as she is working in a Nursing Home. Both sons

are getting good education. They have been living with the respondent from their birth. At present they are aged near about 13 and 12 years.

Taking into consideration of the aforesaid facts, in our opinion, the trial court has rightly passed the impugned order. We do not find any merit

in this appeal, it is hereby dismissed. No order as to costs.