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IN THE HIGH COURT OF DELHI
Hima Kohli, Asha Menon, JJ.
Faisal Khan - Appellant
Versus
Humera - Respondent
MAT. APP. (F.C.) 68 of 2020 and C.M. Appl. Nos. 8112-2020 and 8113 of 2020
Decided On : 01-05-2020
The welfare of the minor child is paramount in custody disputes, encompassing emotional, moral, and ethical considerations beyond legal rights.
Headnote:(A) Guardians & Wards Act, 1890 - Section 25 - Custody of minor child - The appeal is against an ex-parte judgment dismissing a petition for custody filed by the father of the minor child against the mother - The court emphasized that the welfare of the child is the paramount consideration in custody disputes. (Paras 1, 15, 27)
(B) Best interest of the child - The court reiterated that emotional, moral, and ethical welfare must also be measured along with financial support in determining custody. (Paras 17, 18)
(C) Legal presumption of parental care - The mother, as the biological parent, has a better claim unless proved otherwise based on evidence, which was lacking on the appellant's part. (Paras 25-26)
(D) Court's determination - The court concluded that the father’s custody claim was more about settling scores rather than genuinely serving the child's interest. (Paras 25, 28)
Facts of the case:
The appellant, after a talaq, sought custody of his son, citing that he was the natural guardian. The mother had been caring for the child since birth and had recently remarried.
Findings of Court:
The Family Court found no basis for disrupting the established custody with the mother, emphasizing the child's long-term welfare.
Issues: Main issues included whether granting custody to the father would serve the child's best interests.
Ratio Decidendi: The court established that basing custody purely on legal rights without considering the emotional and psychosocial development of the child is inadequate.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. overview of family background and petition initiation. (Para 1 , 2 , 3) |
| 2. details of relationship issues and custody claims. (Para 4 , 5 , 6 , 7 , 8) |
| 3. case management procedures and preliminary orders. (Para 9 , 10 , 11 , 12) |
| 4. family court's denial of father's custody claim. (Para 13 , 14 , 15) |
| 5. best interest of the child principle in custody cases. (Para 16 , 17 , 18 , 19) |
| 6. legal considerations in determining child custody. (Para 20 , 21 , 22 , 23) |
| 7. assessment of familial relationships and custody implications. (Para 24 , 25 , 26 , 27 , 28) |
| 8. final ruling and dismissal of the appeal. (Para 29) |
JUDGMENT
Hima Kohli, J. The present appeal is directed against an ex-parte judgment dated 29.11.2019, passed by the learned Family Court, South-East District, Saket, New Delhi, dismissing a petition filed by the appellant/father under Section 25 of the Guardians & Wards Act, 1890 for seeking custody of the minor son of the parties, master Azhaan, who is in the care and custody and the respondent/mother.
2. The brief facts leading to filing of the Guardianship petition by the appellant/father are as follows:
3. The appellant and the respondent got married as per the Muslim customs and rites at Nizamuddin Mosque, Delhi on 14.6.2009. The couple was blessed with a baby boy, Azhaan on 11.2.2011. The respondent gave birth to the child at the residence of her parents at Hyderabad. In less than five months from the date of birth of the child, the appellant gave a talaq to the respondent on 01.07.2012 and sent her the talaqnama through registered post while she was still at her parent's residence in Hyderabad. In September, 2012, the appellant filed a suit for declaration before the Principal Judge, Family Court, Saket, New Delhi praying inter alia that a decree of declaration be passed, declaring that pursuant to the talaqnama, his marriage with the respondent stood dissolved.
4. On 05.10.2012, on the complaint of the respondent at the Women Police Station Begumpet, North Zone, Hyderabad, FIR No. 132/2012 was registered against the appellant under Sections 498-A/406/34 IPC. On the FIR being registered against the appellant and his family members, they had to approach the court for seeking anticipatory bail, which was declined right upto the Supreme Court. Finally, the appellant got regular bail from a court at Hyderabad on 28.12.2012.
5. In May, 2013, the appellant filed a petition under Section 25 of the Guardians & Wards Act 1890 before the learned Family Court, Saket stating inter alia that he is entitled to take the custody of the child being his natural guardian; that the child is of a tender age and cannot live without the appellant; that no persuasion has worked with the respondent and her family members to hand over the custody of the child to him; that the respondent had deserted him and left the matrimonial home without any justification and has deprived him of his child. The appellant further averred that he is comfortable at his parents' house that provides a secure environment and 24 hours security; that he has all the basic amenities of life and if the child is handed over to him, he along with his parents and younger sisters would be able to rear him; that when the respondent was pregnant, she had sent repeated messages to the appellant that she was not in favour of bearing the child and had even threatened to terminate the pregnancy and this is the main reason for the appellant's worry. With this narrative, the appellant prayed that he be appointed as the guardian of the minor child and his custody be handed over to him.
6. On summons being issued, the respondent entered appearance and contested the Guardianship petition by filing a written statement on 21.10.2013. She raised several preliminary objections including an objection with regard to the territorial jurisdiction of the Family Court at Saket to entertain the Guardianship petition. On merits, it was averred in the written statement that
