IN THE HIGH COURT OF BOMBAY
M.S. SONAK, J.
Arwa Taha Saifuddin & Ors. - Petitioners
Vs.
Taha Mufaddal Saifuddin & Ors. - Respondent
Writ Petition Nos. 8231 & 8232 of 2015, Civil Application Nos. 2578 & 2579 of 2015
Decided on : 23-12-2015
1] Rule. With the consent of and at the request of learned counsel for the parties, Rule is finally disposed of.
2] Considering the nature of the order, which is proposed to be made, as also the commonality of issues involved, it will be appropriate to dispose of these two petitions with a common order.
3] The Petitioners, Arwa and Fatema are sisters. Since last seventeen years, they have been married to Taha and Ibrahim, who are cousins inter se. Arwa and Taha have five children viz. (i) Sakeenah (16), (ii) Mohammad (15), (iii) Tahir (12), (iv) Mustafa (10) and (v) Murtaza (7). Similarly, Fatema and Ibrahim have four children viz., (i) Khadija (17), (ii) Murtaza (14), (iii) Nisreen (11) and (iv) Husain (7). The children, are great grandchildren of the 52nd Dai-ul-Mutlaq, Syedna Mohammed Burhanuddin, a religious leader of the Dawoodi Bohra Community (a Muslim Sect), who passed away in Mumbai on 17 January 2014. Upon his demise, a dispute has arisen with regard to the claim for the position of 53rd Dai-ul-Mutlaq. Amongst other matters, a civil suit is pending on the Original Side of this Court between the rival claimants.
4] The rival claimants for the position of 53rd Dai-ul-Mutlaq are Khuzaima Qutubuddin, the father of Arwa and Fatema (maternal grandfather of the children) on one hand and Mufaddal Saifuddin, Taha's father and Ibrahim's uncle (paternal grandfather of the children), on the other. This rift, has virtually split the marital ties between the parties, as Arwa and Fatema have aligned with Qutubuddin and Taha and Ibrahim have aligned with Saifuddin. The rift has split the Dawoodi Bohra Community, as well. In this mega rift, reminiscent of the strife for the Mogul Throne however, the children, all of them, find themselves in a predicament of having to chose between either of their parents, their tender and innocent age, notwithstanding.
5] Their parents have initiated proceedings against each other seeking various reliefs, including their custody and access. The orders impugned in these petitions arise out of Petition No. D-59 of 2014 instituted by Taha against Arwa and Petition No. D-58 of 2014 instituted by Ibrahim against Fatema in the Family Court at Bandra. The impugned orders are apparently innocuous. The impugned orders defer any decision on the issue of interim custody and access, until the Counselors or Child Welfare of Officers hold counseling sessions with the children and submit reports to the Family Court, which might assist the Family Court in making the difficult, but the necessary decision in the matter.
6] Considering the nature of the impugned orders, learned counsel for the parties were called upon to address me, inter alia, upon the scope and advisability of interference, at this stage. The learned counsel for the parties, together with all other issues, have made their submissions upon such issue, as well.
7] Arwa and Fatema, through Mr. Haresh Jagtiani, learned senior advocate appearing for them, recalled the atrocities and domestic violence allegedly, perpetrated against them by their husbands, which forced them to flee to America with the children and to seek asylum as well as legal custody there. They point out that the California Court, even after ruling that the appropriate legal forum to resolve the dispute would be the Indian Courts and after directing restoration of custody of the children to the fathers, had nevertheless, granted them several reliefs, including custody for seven days in each month as well as unlimited telephonic access. They bitterly complain that their husbands, in disregard to the directions made by the California Court, have virtually cut off the access to the children. Some of the children have been sent away to Surat and others are kept in virtual seclusion at Mumbai. They point out that no access is being offered, whether telephonic or otherwise. They point out that there is a very serious form of tutoring of the children and it is apprehended that the sessions
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