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2018 Supreme(Mad) 1712
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SATHYANARAYANAN, P. RAJAMANICKAM, JJ.
Naim Tabriz Khan & Others - Appellant
Versus
Sofia Nishath Shahjahan - Respondents
O.S.A. Nos. 95, 113 of 2018 & CMP. Nos. 6085, 7166 of 2018
Decided On : 10-07-2018
For the Appellants : Sheela Jayaprakash for M/s. M.J. Jaseem Mohamed.
For the Respondent: Geetha Ramaseshan.
Headnote:
Guardians and Wards Act - Sections 3, 7, 10 and 25 - Minor daughters - Seeking permanent custody - Respondent herein has filed a petition under Sections 3, 7 to 10 and 25 of Guardian and Wards Act and under Order XX1 Rules 2 and 3 of Original Side Rules of this court in O.P.No. seeking permanent custody of two minor daughters viz., born and and also to appoint her as guardian for aforesaid minor children - Petitioner had married (first respondent) at Hotel Accord Metropolitan , as per Muslim Law - Both petitioner and first respondent had been married earlier and that their first marriages had ended in divorce and that first respondent was living in USA- After marriage, petitioner left for USA along with first respondent - petitioner had gone through depression due to domestic violence faced by her in her first marriage and this was informed very early to the first respondent and his family members before their marriage– Held, conviction is further strengthened by further fact that two children require each others companionship - This cannot be denied - Their dependency on each other was evident when they were in chambers - As stated above, they both sat in one chair - They smiled together - They held hands together - They were so happy in seeing each other - They should not be separated - They have to be united - They have to be united with the only parent, who is now available namely respondent - Petitioner has married again - His interests have diversified - He has another wife - Court are of firm view that opinion expressed by learned Judge has to be upheld for welfare of both minor girl children - Looking from any angle, respondent/mother is in a better position than first appellant/father to act as guardian for minor children - Accordingly, this point is answered against first appellant/ father and in favour of respondent/mother - Court hold that learned Judge was right in holding that respondent is entitled to have custody of two minor children and appointing the respondent/mother as guardian for minor children and therefore these appeals are liable to be dismissed - Accordingly, this point is answered against appellants and in favour of respondent - In the result, these appeals are dismissed - Consequently, connected miscellaneous petitions are closed.
P. Rajamanickam, J.
1. OSA.No.95 of 2018 has been filed by the respondent in O.P.No.719 of 2014 against the order passed in O.P.No.719 of 2014 dated 07.03.2018 on the file of this court.
OSA.No.113 of 2018 has been filed by the petitioner in O.P.No.778 of 2014 on the file of this court against the order passed in O.P.No.778 of 2014 dated 07.03.2018.
2. The respondent herein has filed a petition under Sections 3, 7 to 10 and 25 of the Guardian and Wards Act and under Order XX1 Rules 2 and 3 of Original Side Rules of this court in O.P.No.719 of 2014 seeking permanent custody of two minor daughters viz., Yusra Mariam born on 13.03.2012 and Zaara Samreen born on 19.03.2014 and also to appoint her as guardian for the aforesaid minor children. The first appellant in S.A.No.95 of 2018 and appellant in OSA.No.113 of 2018 has filed OP.No.778 of 2014 under Sections 3, 7, 10 and 25 of the Guardians and Wards Act and under Order XXI Rules 2 & 3 of Original Side Rules seeking permanent custody of the aforesaid children and also to appoint him as guardian for the said children. The learned Single Judge has allowed O.P.No.719 of 2014 and dismissed O.P.No.778 of 2014 by the common order dated 07.03.2018. Aggrieved by the same, the present Original Side appeals have been filed.
3. The averments made in the petition filed in O.P.No.719 of 2014 are, in brief, as follows :
(a) On 10.09.2010, the petitioner had married Naim Tabriz Khan (first respondent) at Hotel Accord Metropolitan, T.Nagar, Chennai-17, as per the Muslim Law. Both the petitioner and the first respondent had been married earlier and that their first marriages had ended in divorce and that the first respondent was living in USA. After the marriage, the petitioner left for USA along with the first respondent on 08.10.2010. Out of wed lock, two female children viz., Yusra Mariam and Zaara Samreen were born on 13.03.2012 and 19.03.2014 respectively. The petitioner had gone through depression due to domestic violence faced by her in her first marriage and this was informed very early to the first respondent and his family members before their marriage. When the petitioner became pregnant with the first child, the first respondent wanted his mother (his second respondent) and his sister to come for her delivery in USA, but the petitioner preferred her parents. This became an issue with him and when the petitioner was in the labour room, the first respondent prevented her mother from entering the room till his mother called from India and asked the first respondent to allow her inside. From that time onwards, the first respondent's behaviour towards the petitioner changed and stopped caring about her, picked up quarrels with her over trivial reasons and even went to the extent of not eating at home. The petitioner lived in constant tension and after the birth of the first child, she became lonely and went into postpartum depression. She needed to see a doctor immediately, but the first respondent refused to act immediately and kept postponing to take her to the doctor.
(b) To add insult to the injury, the first respondent snatched away her three months nursing baby from her and sent the said baby to Chennai along with his parents (Respondent Nos.2 and 3). The respondents assured her that the minor child would be brought back to be with her in the USA after some time. She believed the first respondent and continued to live with him. In June, 2013, she got pregnant once again. In October 2013, the first respondent brought her to India on the pretext of renewing her USA Visa that was due for expiry on 29.10.2013 and both of them stayed at the first respondent's parents' house at Mogappair, Chennai. During the said stay, the first respondent and his family members treated her indifferently and within four days of her arrival, she was thrown out of the matrimonial home. At that time, she was in her fifth month of pregnancy. The minor child Yusra Mariyam was detained by his first responden
