Mother’s right | Custody of minor | Alien environment | Matters to be considered by Court

2020 MLD 55 [High Court (AJ&K)]

–S. 25—Custody of minor—Alien environment—Scope— Appellant/ father assailed order of Guardian Judge whereby his application for custody of minor was dismissed—Validity—Both the parents of minor had contracted second marriage—Minor had remained with her mother from her childhood; therefore, she was more familiar and akin to her mother as compared to her father—Mother was looking after the minor in an appropriate manner and the minor was also studying in the same school where her mother was teaching– -Minor was a female child of 4 years of age, who required constant care of her mother—Nothing had been brought on record which indicated that the minor child was not being brought up and looked after in an appropriate manner—Father was performing his duties in Army, where he was not permanently stationed at one place—Putting minor in an alien environment was not in her interest—Paramount factor in case of female minor child was guidance of her mother which had no substitute as no one could look after the minor as compared to her mother.

                   Custody of minor—Matters to be considered by Court—Scope—Paramount consideration while deciding the question of custody of the minor is the welfare of the minor which has to be seen in view of the age, sex and religion—Muslim Personal Law has also to be taken into consideration—Mother, under Sharia Law, is entitled to retain the custody of her male child until he attains the age of 7 years and custody of female child till her puberty—Mother’s right continues even though she is divorced—Where mother contracts second marriage, she loses the right of custody of her minor child—Where husband also contracts second marriage then the court has to see the convenience and welfare of the minor with more care.

            The captioned appeal has been preferred against the judgment of Additional District Judge/Judge Family Court/Guardian Judge, Rawalakot, dated 20.12.2018, whereby while accepting the application of respondent No.1 for guardianship and custody of minor namely Noor-ul-Emaan, guardian certificate was issued in the favour of plaintiff-respondent No. 1. whereas, the other application filed by the appellant herein was dismissed. The facts precisely stated are that the respondent No.1 herein filed an application for appointment as guardian of minor daughter namely, Noor-ul-Emaan before Additional District Judge/Judge Family Court/empowered as Guardian Judge Rawalakot wherein it is stated that marriage between the spouses was solemnized on 18.03.2013 and out of their wedlock Noor-ul-Emaan was born. It is stated that minor is 3 years old and defendant-appellant herein snatched the custody of minor and handed over the custody of daughter to his relatives. On the other hand appellant also filed an application for guardianship of the minor before the same court stating therein that respondent herein contracted second marriage therefore she cannot bring up the minor in better way and she is also unable to bear the expenses of minor. It is prayed in both the applications that it will be in the interest of justice that they may be appointed as guardian of minor and her property. On filing of the applications both the parties were summoned who contested the applications by filing objections pro and contra. The learned Judge Family Court/Guardian Judge Rawalakot while concluding the applications, dismissed the application of appellant and accepted the application of respondent No.1 for appointment of guardian vide its judgment dated 20.12.2018. Now, the appellant called in question the validity of the judgment date 20.12.2018 through instant appeal. On filing of the instant appeal notices were issued to the respondents but despite service nobody appeared on behalf of the real respondent therefore, she has been proceeded ex-parte vide order dated 17.04.2019. Kh. Arshad Mahmood, Advocate the learned Counsel for the appellant argued that the Court below misread the evidence of the parties and wrongly dismissed the application. The learned Counsel further contended that if the woman contracts second marriage then she loses her right of custody and it has been proved by the evidence that she has contracted second marriage with one Khalil. The learned Counsel stressed on the point that Sadia Rehman respondent does not deserve for custody of minor because she contracted second marriage therefore, she cannot bring up the minor in an appropriate manner as compared to the father-appellant and she cannot provide a better education to the minor. The learned Counsel finally contended that the impugned decision has been passed in a hasty manner, which is not sustainable; therefore, by accepting the appeal the impugned judgment may be set aside. I have heard the ex-parte arguments on behalf of the appellant and gone through the record of the case with utmost care. It is pertinent to mention here that paramount consideration while deciding the question of custody of the minor is the welfare of the minor which has to be seen in view the age, sex and religion. The Muslim Personal Law has also to be taken into consideration. The proposition was elaborately discussed in a case titled “Irshad Begum v. Mirza Mohammad Haleem others, by the honourable apex Court, where it was held as under: – “10. While appreciating the welfare it has to be seen that the welfare includes his moral, spiritual and material well being. While considering what is the welfare of the minor the court shall have regard to the age, sex, religion of the minor, the character and capacity of the proposed guardian, his nearness of kin to the minor and the preference of the minor, if he or she is intelligent enough to make it.” Under Sharia Law mother is entitled to retain the custody of her male child until he attains the age of 7 years and custody of female child till puberty. This right continues, even she divorced. But if she contracts second marriage then she loses the right of custody of her minor child. But if the husband also contracts the second marriage then court has to see the convenience and welfare of the minor with more care. In the instant case, as it is admitted fact that both the claimants contracted second marriage therefore, the main focus for the Court is the welfare of the minor. If both claimants for custody of the minor have contracted second marriage, then the matter of custody of the minor has to be decided with more care and it is incumbent upon the court to see the convenience and welfare of the minor and more importance has to be given to the welfare of the minor. My aforesaid view find support from a case reported as Abdur Rauf Khan v. Public At-large (2008 YLR 1448), wherein the following principle was enunciated:– “It has been contended by the learned counsel for the appellant that the respondent has also contracted the second marriage and the male child is now eight years of age as such, the respondent has lost the right of custody. The contention of the learned counsel is not well-founded, because the question is not of the age or of second marriage of the mother of the minors. The main focus for the Court is the welfare of the minors. If both claimants for custody of the minors have contracted second marriage, then the matter of custody of the minors has to be decided with more care and caution and that what is in the interest of the minors and more importance has to be given to welfare of the minors.” Perusal of record reveals that the minor remained with her mother from her childhood; therefore, she is more familiar and akin to her mother as compared to her father. It transpires from the evidence that the mother is looking after the minor in an appropriate manner and minor is also studying in the same school where her mother teaches. Moreover, minor is a female child of 4 years old, would definitely required constant care of her mother. Nothing has been brought on record which may indicate that the minor child is not being brought up and looked after in appropriate manner. It is also pertinent to mention here that the appellant after separation from the respondent contracted second marriage and he is performing his duty as a Army personnel/Soldier and not permanently stationed at one place hence, it would not be in the interest of minor to put her in alien environment. Paramount factor in case of female minor child would be guidance of her mother which has no substitute no one can look after the minor as compared to her mother. In the case in hand as the father of the minor also contracted second marriage therefore it is in the interest of the female child of such tender age to live with her mother. No infirmity or illegality has been found in the impugned order therefore, the same is hereby maintained. For the foregoing reasons, finding no force in the instant appeal, same is hereby dismissed.

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