Custody of minor girls.

1. In this Letters Patent Appeal, the parents of two minor Muslim girls are quarreling as between themselves for the guardianship of the person and custody of the said minor girls. Though in the petition filed before the first Court guardianship or the properties of the minor girls was also asked for, there are no properties of the minor girls to be administered and hence the controversy centered around only the guardianship of the person and custody of the minor girls. The initiative for guardianship for the person and custody of the minor girls was taken by the mother, the respondent herein. She succeeded before the first Court. The father, the appellant herein, preferred C.M.A. No. 851 of 1989 to this Court and that came to be considered by a learned single Judge of this Court and he found no warrant for interference with the decision of the first Court and dismissed the Civil Miscellaneous Appeal. The learned single Judge directed the father, the appellant herein, and his second wife by name Habeebunnissa to hand over the minor girls to the mother, the respondent herein, on or before 19.4.1991. This Letters Patent Appeal is directed against the judgment of the learned single Judge and has been preferred by the father.

2. When the Letters Patent Appeal came up for admission on 12.4.1991, Mr. S. Sundaresan took notice for the mother. We deemed fit to summon the presence before us of the minor girls to find out their attitude; and we directed the mother and the second wife of the father, who is also his power agent to be present before us. The matter was adjourned to be heard today. The matter has been taken up today. We have heard the submissions of Mr. V. Sairam, learned counsel for the father and Mr. S. Sundaresan learned counsel for the mother. We are disposing of the Letters Patent Appeal on merits.

3. Certain facts could not be lost sight of for the purpose of our reaching a proper decision on the issue. The couple seemed to have had no problem upto 1982. The father was and is away from India for a considerable length of time. According to the father, he divorced the mother of the minor girls on 24.2.1982, because he found her leading an immoral life with one Nazirudeen. This case of the father is not being admitted by the mother. The father would further say that he married Habeebunnissa, as his second wife and the minor girls are in the latters custody and he is providing for their maintenance sending money from abroad. The mother disputes the second marriage of the father and she would say that the father has only struck up an immoral relationship with Habeebunnissa. By his relationship with Habeebunnissa, the father has got three issues. The mother would say that the minor girls were snatched away from her custody by the father while they were playing in front of the house on 5.4.1985. There were criminal proceedings for the custody of the minor girls initiated in 1985 and prosecuted by the mother. Though she succeeded initially on 24.6.1985, before the concerned Sub-Divisional Judicial Magistrate, that was nullified on the technical plea that the criminal law could not appropriately be set in motion for custody of minor children as between parents. This happened on 15.6.1987 by a decision of this Court in a criminal revision case. Thereafter, in September, 1987 the move by the mother for the guardianship and custody of the minor girls was taken before the first Court.

4. Both before the first Court and before the learned single Judge, the aspect of the welfare of the minors was primarily projected by the parties to say that she or he must get at the right of guardianship and custody of the minor girls. To the same effect were the submissions made before us by both the sides. No one need quarrel over the proposition that the sole consideration both in the case of guardianship and custody of the minor should be the welfare of the minor and the Court is bound to take into consideration all the facts and circ