Sayyed Rafique vs Asfiya Banu

H.H. Kantharia, J.—The appellant here impugns the judgment and order passed by the learned 3rd Additional District Judge, Nashik, on September 24, 1985 in Civil Miscellaneous Application No. 69 of 1984.

The relevant facts giving rise to this appeal are as under;

"The respondent (hereinafter referred to as "the applicant- mother") and the appellant (hereinafter referred to as "the opponent- father") were married on May 28, 1976 admittedly according to Muslim rites as both were Muslims. Out of the said wedlock a daughter by name Sajeda was born on January 2, 1978 and a son by name Nasir was born on February 1, 1979. It appears that there was some matrimonial discord between the husband and wife and, therefore, the dispute as to the custody of minor children Sajeda and Nasir. The children were allegedly removed from the custody of the applicant-mother by the opponent-father and, therefore, she was required to file an application for the custody of her minor children under the provisions of the Guardians and Wards Act, 1890 in the District Court at Nashik. On examination of the evidence adduced before him, the learned 3rd Additional District Judge, Nashik, came to the conclusion that the children should be in the custody of the mother. Accordingly, by his impugned judgment and order, he directed the father to restore the custody of the children to the mother within 15 days. However, by a stay order granted by this Court on February 17, 1986, the children have remained in the custody of the father. The father ha''d filed this appeal, being aggrieved by the judgment and order passed by the trial Court when by the abovementioned order in the Civil Application he was allowed to retain the custody of the children.

Now, the learned trial Judge, while being conscious of the fact that the welfare of the children was the paramount consideration of the Court, had ascertained the wishes of the children then and had noted that the children were willing to stay with the father but the learned Judge discarded their wishes holding that the children were not intelligent enough to form an independent judgment. He was also of the opinion that as per Rule 352 of the Mahomedan Law, the mother was entitled to the custody of her male child until he has completed the age of 7 years and of her female child until she has attained puberty. Accordingly, he had ordered the custody of the children to the mother.

Today, at the instance of the Court, the children were brought here. Daughter Sajeda is admittedly more than 14 years old and son Nasir is admittedly more than 13 years old. Both of them are studying in 8th Standard. Records as to their performance in the school was also produced for my consideration. I interviewed both the children separately and ascertained their wishes. Both the children have positively stated that they are unwilling to go and stay with their mother who had not cared for them for all these years. They have categorically stated that they are happy in the custody of their father and would not like to be disturbed. Again, admittedly, the son in this case is now more than 7 years old and the daughter, who is more than 14 years old, has already attained puberty. That being the fact, under Rule 352 of the Mahomedan Law, the mother is not entitled to the custody of both the children as a matter of right. Regard being had to the wishes of the children and their performance in the school, while staying with the father, I I am of the opinion that it would be in the interest and welfare of the children that their custody is retained by the father. In such facts and circumstances, the impugned judgment and order passed by the learned trial Judge will have to be et aside.

I the result, the appeal succeeds and the same is allowed. The impugned judgment and order passed by the learned trial Judge is set aside and it is directed that the custody of the children, namely, daughter Sajeda and son Nasir is granted to the appellant-father and the same shall remain with him. In the facts and circumstances of the case, there shall be no order as to costs.