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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
GAWA - Custody of Minor - Section 25 of the Guardian and Wards Act, 1890 - Section 17 of the GAWA - Section 352 of the GAWA - Islamic Law - Habeas Corpus proceedings under Article 226 of the Constitution of India - Guardianship of Person - Guardianship of Property - Guardianship in Marriage - Welfare of the Child - Paramount consideration - Personal Law - Parens Patriae jurisdiction - Best interest of the child
Fact of the Case:
The petitioner, a mother, sought custody of her minor son from the first respondent, the grandfather, under Section 25 of the Guardian and Wards Act, 1890. The petitioner alleged that the first respondent influenced the second respondent, the father, to harass her, leading to the separation of the petitioner from the second respondent and the illegal custody of the minor son by the first respondent.
Finding of the Court:
The Court found that the welfare of the minor child was of paramount importance and that the best interest of the child should guide the custody decision. The Court held that the petitioner, being the mother, did not suffer from any disqualification and was capable of taking care of the child. The Court also noted the absence of female relatives in the respondents' house and the economic instability of the second respondent, leading to the decision to grant custody to the petitioner.
Issues: The main issue was whether the petitioner was entitled to the custody of the minor boy under Section 25 of the Guardian and Wards Act, 1890, considering the allegations of harassment and illegal custody by the first respondent and the welfare of the minor child.
Ratio Decidendi: The Court emphasized the paramount consideration of the welfare of the child and the best interest of the child in determining custody. It also highlighted the application of personal law, parens patriae jurisdiction, and the principles of guardianship under Islamic law and the Guardian and Wards Act, 1890.
Final Decision: The original petition was allowed, and the respondent was directed to hand over the minor boy to the petitioner. The Court also granted visitation rights to the second respondent, the father, and emphasized his obligation to contribute to the welfare of the minor children.
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 declaring Triple Talaq to divorce her. It was returned by the said Jamad stating that his pronouncement was not in accordance with the Shariat law. Later on, the petitioner came to know th
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