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2011 Supreme(Mad) 507
Madurai Bench of Madras High Court
D. HARIPARANTHAMAN
Dinesh alias Syed Mohamed Sheik Sikkandar & Others
Versus
S. Jareena Begum
C.M.A.(MD) 170 OF 2010 & M.P.NO.1 OF 2010
Decided On :Decided on: 01-02-2011
For the Petitioners:G. Prabhu Rajadurai, Advocate.
For the Respondent:S. Rajendran, Advocate.
Headnote:A. GUARDIAN AND WARDS ACT, 1890 - SECTION 7(1)(b), 8, 25, 17(3) - petition by wife (respondent) for appointing appellant as guardian of minor child and custody by husband and in laws resulting in death of one of her daughter - CMA flied by husband, contending that death of daughter was due to cruelty by wife’s relatives on account of dislike of marriage by the family of another caste and that a pending criminal case against him could not be reason to deny custody - HELD, following several judgments, since minor child with appellant (husband) ever since birth, existing arrangement should not be disturbed - Failure of child to identify and recognize maternal grandmother (Para 24, 30) - Mere pending of criminal case against husband cannot be ground to deny custody to husband (Para 28). - Remarriage of husband cited by wife as ground to deny custody of child to husband - Weightage to be given in cases of custody - Court’s duty - HELD, court has to give due weightage to child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings - 1992 (3) SC 573 relied on. - Question whether father is in regular employment - not relevant - While considering paramount interest of minor, it is not relevant whether father of child is in regular employment or not - On facts, child found treated well - Judgment and decree of family court set aside in CMA.
B. CUSTODY OF CHILD - Grounds of pending criminal case, remarriage and employment cannot be a bar to ordering custody to husband - See Guardian and Wards Act - Section 8 etc.
Result: CMA allowed.
Based on the provided legal document, the key points are as follows:
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The case concerns the custody and welfare of a minor child, Mariyam Parija, born on 10.11.2005, and the question of whether custody should be awarded to the mother (respondent) or the father and paternal grandparents (appellants) (!) .
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The marriage between the respondent's daughter and the first appellant was initially a registered love marriage without the knowledge of the families, followed by a customary Muslim marriage (!) (!) .
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The minor child has been living with the appellants (father and paternal grandparents) since birth, and the child has not recognized or identified the respondent (maternal grandmother), indicating a strong bond with the appellants (!) (!) .
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The respondent alleged that her daughter was subjected to cruelty and harassment by the appellants, which led to her daughter's suicide. However, the evidence does not substantiate these allegations, and the court found no proof of ongoing harassment or cruelty (!) (!) .
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The trial court initially awarded custody to the respondent, citing the criminal case against the appellants and the alleged harassment, but this decision was challenged on appeal (!) (!) .
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The appellate court emphasized that the paramount consideration in custody cases is the welfare of the child, including their comfort, health, education, and emotional well-being. The court noted that the child was comfortable, well-cared-for, and had not been exposed to any ill-treatment (!) (!) .
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The court observed that the criminal case pending against the appellants, especially relating to the daughter's death, should not be the sole factor in denying custody, but it is relevant to consider the child's best interests (!) (!) .
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The court highlighted that the child's environment and the continuity of her upbringing with the appellants should be preserved, especially since she has been living with them since birth and is thriving in that environment (!) (!) .
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The respondent did not take steps to visit or see the child after her daughter's death, and her knowledge of the child's environment was limited, which was viewed unfavorably (!) (!) .
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The court reiterated that the child's wishes, if they are old enough to express an intelligent preference, should be considered, but in this case, the child was too young to articulate such a preference (!) .
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Ultimately, the court set aside the order appointing the respondent as guardian and granted custody to the appellants, emphasizing that the child's best interests and existing environment favor the appellants' custody (!) (!) .
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The court clarified that the respondent remains entitled to seek visitation rights, which can be addressed separately through appropriate legal proceedings (!) .
In summary, the court prioritized the child's welfare, stability, and existing environment over the allegations made, and it concluded that the custody should remain with the appellants who have cared for her since birth.
1. This Civil Miscellaneous Appeal is directed against the judgment and decree dated 31.12.2009 passed in G.W.O.P.No.27 of 2007 by the learned First Additional District Judge, Madurai.
2. The brief facts leading to the filing of this appeal are as follows:
(a) The first appellant, who is the son of the second and third appellants, registered his marriage with the daughter of the respondent namely Sainammal on 08.07.2004 at the Registrar Office, Madurai, without the knowledge and consent of both the parents. That is, the second and third appellants as well as the respondent were not informed about the registered marriage between the first appellant and Sainammal. After marriage, the couple lived for sometime at Chennai.
(b) Thereafter, both the parents arranged for the customary wedding as per their religious rites and customs. The arranged marriage between the first appellant and Sainammal held on 21.02.2005 at K.S.K.R. Marriage Hall at Sellur as per the the Customs of Muslims and was registered in Narayanapuram Area Muslim Jamath. Out of their wedlock, a female child was born on 10.11.2005 and the name of the child was Mariyam Parija.
(c) While so, the daughter of the respondent, that is, the wife of the first appellant viz., Sainammal committed suicide on the midnight of 28.07.2007.
(d) Based on the complaint given by the respondent, a criminal case was registered against the appellants in Crime No.323/2007 under Section 304(B) IPC on the file of the Oomatchikulam Police Station, Madurai. The third appellant, the mother of the first appellant obtained anticipatory bail, however, the first and second appellants were arrested and later, were enlarged on bail. The minor child viz., Mariyam Parija was under the custody of the appellants.
(e) In the meantime, the respondent filed a petition in G.W.O.P.No.27/2007 under Sections 7(1)(b), 8 and 25 of Guardians and Wards Act, 1890 before the learned First Additional District Judge, Madurai, seeking to appoint her as legal guardian of the minor child viz., Mariyam Parija and for a consequential direction to hand over the minor child to her.
(f) In the said petition in G.W.O.P.No.27/2007, the respondent herein has averred that her husband was working as Superintendent in Education Department of Government of Tamil Nadu and she has three daughters. The second daughter viz., Sainammal got married with the first appellant herein at the Registrar Office at Madurai on 08.07.2004. Initially, the second and third appellants did not accept the registered marriage and drove out the couple from their house. Thereafter, the second and third appellants demanded 50 sovereigns gold jewels and Rs.50,000/- as dowry to accept the marriage. The respondent agreed to give 35 sovereigns gold jewels and Rs.50,000/- as dowry. In the said circumstances, the marriage between the first appellant and Sainammal was held on 21.02.2005 at K.S.K.R. Marriage Hall at Sellur as per the Customs of Muslims and was registered in Narayanapuram Area Muslim Jamath. At the time of marriage, her daughter viz., Sainammal was not aware that the first appellant had no job and was roaming here and there. It was also alleged that the appellants snatched all the jewels from her daughter and started harassment and compelled her to get more money as dowry from the respondent. It was also alleged that the daughter of the respondent came to her house with tears and told the cruelty meted out to her at the hands of the appellants and in those circumstances, the respondent also gave another seven sovereigns of gold and cash of about Rs.10,000/-on several occasions. While so, her daughter gave birth to a female child on 10.11.2005 and all delivery expenses were borne by the respondent. The respondent also gave three sovereigns of gold to the minor child at the 48th day of birth ceremony. Even then, the appellants tortured her daughter and demanded dowry often. In June 2007, the daughter of the respondent viz., Sainammal came to the
