The best interest of the child is paramount in custody decisions, and substantial evidence is required to support a claim for custody.

JUDGMENT

(Prayer: Original Petition filed under Sections 3, 7 to 10 and 25 of the Guardian and Wards Act, 1890 and Order XXI Rule 1 to 3 of Original Side Rules, prayed that (i)to grant permanent custody of the Minor Mohamed Ali Asghar Sayeed born on 31.05.2017 to the petitioner, (ii)to appoint the petitioner as Guardian of the person of the minor Viz.,Mohamed Ali Asghar Sayeed, (iii)for such other relief as this Court may deem fit and proper and thus render justice.)

1. The Original Petition has been filed by the father of the child seeking for his permanent custody and also to appoint himself as guardian of the Mohamed Ali Asghar Sayeed, minor child.

2. Heard Dr.C.K.Syed Shaffi, learned counsel appearing for the petitioner and Mrs.Thenmozhi Annam Nelson, learned counsel appearing for the respondent.

3. Learned counsel for the petitioner would submit that the marriage between the petitioner and the respondent took place on 27.09.2014 as per the religious obligations of Islam. After the marriage, the petitioner and the respondent were residing at Chennai. On 31.05.2017, the petitioner and the respondent were blessed with a male child and was named as Mohamed Ali Asghar Sayeed. The petitioner had been taking care of the respondent and the minor child by providing all the amenities.

4. Learned counsel for the petitioner would submit that the respondent during the delivery of the child and thereafter was with her parents. The respondent, according to him started to behave indifferently. The respondent suddenly planned to go to Australia to visit her sisters. The petitioner acceding to the request of the respondent had resigned from Fortis Malar Hospital and agreed to go with the petitioner and in the process he had spent Rs.15,00,000/- (Rupees Fifteen Lakhs only) from the savings of the petitioner and the retirement amount of the petitioner''s father.

5. He would submit that the petitioner was deceived by the respondent by making false promises by getting him a job in Australia. However, when the petitioner and the respondent reached Australia, the respondent''s family cheated the petitioner and was ill-treating him. Without knowing what to do, the petitioner had returned to India. However, the respondent and the child stayed back in Australia under the protection of the respondent''s sisters. The petitioner would submit that the respondent had never bothered to inform the petitioner about the well-being of the minor child.

6. Learned counsel for the petitioner would further submit that in the month of May 2019, the respondent called the petitioner and threatened him to give khula, which is a divorce from the wife side. She had also sent messages threatening the petitioner and sought divorce from the petitioner so as to settle herself in Australia. During the month of January 2020, the respondent had visited India. But, however, instead of coming to the matrimonial home, she stayed back at Hyderabad with her father. During the said period, the respondent along with her father came to matrimonial home and stayed there for only six days. Thereafter, she left to Australia. On 06.07.2021, the respondent had applied for divorce as per the Islamic laws and the same had been recognised by the Chief Shia Kazhi of Tamil Nadu. The respondent is not taking care of the child and eventhough, he had attained 4 ½ years, he has not been admitted in a school in Australia.

7. He would further submit that as per the holy Kuran, the father of the child is the natural and legal guardian. He would further submit that the mother losses her guardianship of a male minor when the child attains the age of two years. He would submit that the mother cannot move a child to a different place as per the Mohammeden Law.

8. He had examined himself as PW1 and had marked various documents to substantiate his pleading. He would further submit that the respondent, during the cross-examination had not denied the suggestion that under the Shia Law, the child should have been han