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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. CHANDRU
M. Kuthbunisha
Versus
S.A.Jabar & Another
O.P.No.777 of 2008, A.No.5738 of 2008
Decided on : 02-12-2009
Guardian and Wards Act - Custody Dispute - Section 25 of the Guardian and Wards Act, 1890 - Summary of Acts and Sections: The court discussed the application of the Guardian and Wards Act, 1890, particularly Section 17, and referred to legal principles governing guardianship under Islamic law. The court emphasized the paramount consideration of the welfare of the child in determining custody.
Fact of the Case:
The petitioner, a mother, sought custody of her minor son from the respondent, her father-in-law. The respondent resisted, claiming custody during the absence of the child's father. The case involved allegations of adultery, divorce, and financial arrangements between the parties.
Finding of the Court:
The court found that the petitioner, being the child's mother, did not suffer from any disqualification for custody. The court emphasized the paramount consideration of the child's welfare and concluded that the custody should be given to the mother, directing the respondent to hand over the child within two weeks.
Issues: The main issue was the custody of the minor child, involving allegations of adultery, divorce, and financial arrangements. The court also considered the welfare and best interest of the child as the primary concern.
Ratio Decidendi: The court emphasized the paramount consideration of the child's welfare in determining custody, considering the mother's capability and the absence of female relatives in the respondent's house. The court also highlighted the legal principles governing guardianship under Islamic law and the application of the Guardian and Wards Act, particularly Section 17.
Final Decision: The original petition was allowed, directing the respondent to hand over the minor boy to the petitioner within two weeks. The court also granted visitation rights to the father, emphasizing his obligation to contribute to the welfare of the child.
Original Petition filed under Section 25 of the Guardian and Wards Act, 1890 to direct the respondent to restore the custody of the minor son A.Arshath Ahamed to the petitioner.
Heard both sides.
2. This Original petition is filed by the petitioner- mother under Section 25 of the Guardian and Wards Act, 1890 (for short GAWA) seeking for the custody of her minor son A.Arshath Ahamed born on 22.02.2004.
.3. The original petition was admitted on 112. 2008. On notice from this Court, the first
.respondent, who is the grand father of the minor child entered appearance and has filed a counter affidavit on 22.06.2009 resisting the claim. Subsequently, after the evidence of the petitioner was recorded as P.W.1 and the first respondent as R.W.1, the respondent filed an application in A.No.3206 of 2009 to implead the second respondent as party second respondent. The same was ordered by this Court on 29.07.2009. The impleaded second respondent is the father of the minor boy A.Arshath afaaaAhamed. Though he did not file any counter statement independently, he has filed a proof affidavit and also examined himself as R.W.2.
4. The case of the petitioner was that she is the daughter of one N.Mohamed Sarfudeen residing at Nadutheru, Adiyakkamangalam Village, Thiruvarur Taluk. The first respondent is her father-in-law. This Original Petition was filed to restore her minor son A.Arshath Ahamed, (who was aged 4 years and 8 months at the time of filing of the Original Petition) to the petitioner from the illegal custody of the first respondent. The petitioner stated that her marriage with the second respondent was solemnized on 14.04.2003 as per Islamic Shariat law at Kodikalpalayam Village in Thiruvarur District. The marriage was also registered by the Managing Committee of the Masjid in the village and entered in the Nikkah Register. Out of their lawful wedlock, a son was born to them on 22.02.2004 and a girl was born to them on 10. 2005. The petitioner was living with her husband-second respondent and children in the matrimonial home along with the first respondent.
.5. It was further stated that in the year 2005, the petitioners mother-in-law died. After the death of her mother-in-law, the petitioner accidentally had seen the first respondent in a compromising position with a servant maid. Even the petitioner’s husband and his brothers after coming to know about the same, stopped the servant maid coming to their house. Thereafter, the first respondent developed animosity against the petitioner and wanted to wreck vengeance because of the complaint made by the petitioner. Therefore, he influenced the second respondent who started harassing the petitioner. Hence, unnecessary issues were raked up which dumped the petitioner along with the children in her parents house. After 15 days, the petitioner and the minor children were taken back to their matrimonial house. But the first respondent as preplanned accused the petitioner and made character assassination. He forcefully sent her from the matrimonial home retaining the children. It was stated that the petitioner took action through Kodikalpalayam Jamath and retrieved the minor daughter. She also lodged a complaint through an N.G.O. to the All Women Police Station at Thanjavur and recovered the custody of the minor son also. Due to the compromise efforts made by the All Women Police Station, the second respondent took back the petitioner and children with him. But once again the petitioner was sent back to her parents house along with her children stating that the second respondent will convince the first respondent and will take her back within 10 days.
6. It was further stated that the petitioner after waiting for few months, took initiatives through the Jamath at Adiyakkamangalam village for her reunion with her husband namely the second respondent. In the mean while, the petitioner came to know that the second respondent has sent a Talaq letter to Kodikalpalayam Jamad declar
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