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MADRAS HIGH COURT
K. Chandru, J.
M. Kuthbunisha —Petitioner
versus
S.A. Jabar and Anr. —Respondents
O.P. No. 777 of 2008 and
A. No. 5738 of 2008
Decided on 2.12.2009
Counsel for the Parties:
For the Petitioner:Ms. A. Arulmozhi, Advocate.
For the Respondents:Mr. Kumaragurubaran for Mr. V. Bharathidasan, Advocate.
IMPORTANT POINT
As regards custody of minor child, paramount consideration can only be what is the best interest of the child.
Headnote:Guardian and Wards Act, 1890—Section 25—Custody of minor child—Paramount consideration best interest of child—Petitioner mother of children—Second respondent father and natural guardian—He left the child in custody of father without informing the petitioner and left for foreign tour for about three years—No female relative in his house—Petitioner having his mother, sisters and brothers as well—Her poverty or financial status cannot be put against her in bringing up the child—Respondent directed to handover custody of the minor boy to petitioner—Entitled to seek maintenance claim against second respondent. (Paras 34 to 37)
Result: Original petition allowed.
K. Chandru, J.—Heard both sides.
2. This original petition is filed by the petitioner-mother under Section 25 of the Guardian and Wards Act, 1890 (for short GAWA) seeking for the custody of her minor son A. Arshath Ahamed born on 22.2.2004.
3. The original petition was admitted on 11.12.2008. On notice from this Court, the first respondent, who is the grandfather of the minor child entered appearance and has filed a counter affidavit on 22.6.2009 resisting the claim. Subsequently, after the evidence of the petitioner was recorded as PW 1 and the first respondent as RW1, the respondent filed an application in A. No. 3206 of 2009 to implead the second respondent as PW2. The same was ordered by this Court on 29.7.2009. The impleaded second respondent is the father of the minor boy A. Arshath Ahamed. Though, he did not file any counter statement independently, he has filed a proof affidavit and also examined himself as RW2.
4. The case of the petitioner was that she is the daughter of one N. Mohamed Sarfudeen residing at Nadutheru, Adiyakkamangalarn Village, Thiruvarur Taluk. The first respondent is her father-in-law. This original petition was filed to restore her minor son A. Arshath Ahamed (who was aged 4 years and 8 months at the time of filing of the original petition) to the petitioner from the illegal custody of the first respondent. The petitioner stated that her marriage with the second respondent was solemnized on 14.4.2003 as per Islamic Shariat Law at Kodikalpalayam Village in Thiruvarur District. The marriage was also registered by the Managing Committee of the Masjid in the village and entered in the Nikkah Register. Out of their lawful wedlock, a son was born to them on 22.2.2004 and a girl was born to them on 10.10.2005. The petitioner was living with her husband-second respondent and children in the matrimonial home along with the first respondent.
5. It was further stated that in the year 2005, the petitioner’s mother-in-law died. After the death of her mother-in-law, the petitioner accidentally had seen the first respondent in a compromising position with a servant maid. Even the petitioner’s husband and his brothers after coming to know about the same, stopped the servant maid coming to their house. Thereafter, the first respondent developed animosity against the petitioner and wanted to wreck vengeance because of the complaint made by the petitioner. Therefore, he influenced the second respondent who started harassing the petitioner. Hence, unnecessary issues were raked up which dumped the petitioner along with the children in her parents’ house. After 15 days, the petitioner and the minor children were taken back to their matrimonial house. But the first respondent as preplanned accused the petitioner and made character assassination. He forcefully sent her from the matrimonial home retaining the children. It was stated that the petitioner took action through Kodikalpalayam Jamath and retrieved the minor daughter. She also lodged a complaint through an N.G.O. to the All Women Police Station at Thanjavur and recovered the custody of the minor son also. Due to the compromise efforts made by the All Women Police Station the second respondent took back the petitioner and children with him. But once again the petitioner was sent back to her parents house along with her children stating that the second respondent will convince the first respondent and will take her back within 10 days.
6. It was further stated that the petitioner after waiting for few months, took initiatives through the Jamath at Adiyakkamangalam village for her reunion with her husband namely the second respondent. In the mean while, the petitioner came to know that the second respondent has sent a Talaq letter to Kodikalpalayam Jamad declaring ‘Triple Talaq’ to divorce her. It was returned by the said Jamad stating that his pronouncement was not in accordance with the Shariat law. Later on, the petitioner came to know that the second resp
