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IN THE HIGH COURT OF ALLAHABAD
A. N. Dikshita, J.
KAHKASHAN BANO - Appellant
Versus
ABDUL MOIZ ANSARI - Respondents
F. A. O. 788 Of 1988
Decided On : 11/23/1989
CUSTODY OF MINOR - WELFARE OF THE CHILD - PARAMOUNT CONSIDERATION - MOTHER'S CUSTODY PREFERRED - GUARDIAN AND WARDS ACT, 1890 - SECTIONS 12, 25.
Fact of the Case:
The appellant, Kahkashan Bano, and the respondent, Abdul Moiz Ansari, were married in 1979 and had a son, Mohd. Shoab Ansari, in 1980. The couple divorced in 1981, and the child remained in the custody of the mother. In 1987, the respondent filed a petition under Sections 12 and 25 of the Guardian and Wards Act, 1890, seeking custody of the child. The trial court granted the respondent's petition, and the appellant filed an appeal.
Finding of the Court:
The court held that the welfare of the child was the paramount consideration in determining custody. The court found that the appellant was in a better position to protect the child's welfare than the respondent. The court also found that the child preferred to stay with the appellant.
Issues: 1. Whether the welfare of the child is the paramount consideration in determining custody? 2. Whether the appellant or the respondent is in a better position to protect the child's welfare? 3. Whether the child's preference should be considered in determining custody?
Ratio Decidendi: 1. The court held that the welfare of the child is the paramount consideration in determining custody. The court relied on several precedents, including Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor (AIR 1982 S. C. 792) and Rosy Jacob v. Jacob A. Chakramakkal (AIR 1973 SC 2090), which held that the welfare of the child is the dominant consideration in making orders under Section 25 of the Guardian and Wards Act, 1890. 2. The court found that the appellant was in a better position to protect the child's welfare than the respondent. The court noted that the appellant had been the primary caregiver for the child since birth and that she had a stable home environment. The court also found that the respondent had not been involved in the child's life and that he had a history of instability. 3. The court found that the child preferred to stay with the appellant. The court noted that the child was intelligent and articulate and that he had expressed a clear preference to stay with the appellant. The court also found that the child had a strong bond with the appellant and that he would be adversely affected if he were forced to live with the respondent.
Final Decision: The court allowed the appeal and set aside the trial court's order. The court directed that the child remain in the custody of the appellant. However, the court also directed that the appellant permit the respondent to see the child twice a month for a period of half an hour.
( 1 ) SMT. Kahkashan Bano being aggrieved against the judgment and order dated 8-9-1988 of learned District Judge, Basti, allowing the application in Misc. Case No. 60 of 1987 Abdul Moiz ansari v. Smt. Kahkashan Bano filed by the respondent under Sections 25 and 12 of the guardian and Wards Act read with the Personal Muslim Law for the custody of a minor and directing that the child shall be given to the custody of the respondent within fifteen days has preferred this appeal.
( 2 ) FACTS as revealing from the petition are that the respondent filed a petition under Sections 12 and 25 of the Guardian and Wards Act (hereinafter called "the Act") against the appellant, Smt. Kahkashan Bano on 4-12-87 for being given the custody of the child, Mohd. Shoaib, to him. It was stated in the petition that the respondent married the appellant on 18-11-79 ond his son (Mohd. Shoab Ansari) was born out of this wedlock. The respondent divorced the appellant on 27-12-81 and consequent to this divorce parties started living separately. It was, further, mentioned in the petition that at the time of divorce Mohd. Shoab Ansari was aged about one year and as per the understanding arrived at it was decided that the child would continue to live with his mother till he attained the age of 5 years whereafter the respondent would keep the son in his custody. Mohd. Shoab has attained the age of seven and a half years and the respondent is thus entitled to his custody which may be given.
( 3 ) APPELLANT, Kahkashan Bano filed written statement that after the marriage respondent started harassing and ill-treating her. The respondent orally divorced the appellant on 27-12-81 though no document or Talaqnama was executed to witness the divorce. The appellant also alleged that no agreement (Iqrarnama) was executed and the one on which reliance has been placed by the respondent is a forged one. The appellant is maintaining her son, Mohd. Shoab Ansari with great love and affection and is imparting education to him in St. Josephs Convent School. The appellant who is living with his mother and brother and other family members are also keeping and showing the body great love and affection. It has also been alleged that the respondent never took care of the child, Mohd. Shoab Ansari during all this period. In support of her objection the appellant also filed an affidavit on 29-8-88.
( 4 ) AFTER considering the respective contentions of the parties learned District Judge allowed the application filed by the respondent under Sections 12 and 25 of the Act and directed the appellant to give the custody of the child within fifteen days.
( 5 ) HENCE, this appeal.
( 6 ) A detailed counter affidavit has been filed on behalf of the respondent repudiating the averments as contained in the affidavit. It has been alleged by the respondent that on the refusal of the appellant to give the custody of the child after his attaining the age of five years the respondent was compelled to file the application in the Court for being given the custody of the child. Allegations of torture and mal-treatment of the appellant were denied by the respondent. The respondent had been paying Rs. 200/- per month since 1981 for the maintenance and proper education of the child. Respondent has stated that he is very much attached to the child.
( 7 ) A rejoinder affidavit reiterating the averments in the, affidavit filed earlier and repudiating the allegations of the counter affidavit has been filed.
( 8 ) LEARNED counsel for the parties submitted that instead of disposing of the interim matter the appeal be disposed of on merits by this Court. Accordingly learned counsel for the parties have been heard.
( 9 ) DURING the hearing of the appeal on merits it was found expedient that the appellant produces the child in Court when the respondent shall also be present. Accordingly 28-2-89 was fixed for such production of the child and presence of the parties. On 28-2-1989 the child was produ
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