HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

…

CFA no.08/2018

Reserved on: 12.04.2021

Pronounced on: 22.06.2021

Sameera Begum

……...Appellant(s)

Through: Mr M. Altaf Khan, Advocate

Versus

Khalil Mohammad Hajam

……Respondent(s)

Through: Mr H.A.Wani, Advocate

CORAM:

HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

JUDGEMENT

1. Impugned in this Civil First Appeal is judgement dated 16^th March

2018, passed by District Judge, Kupwara (hereinafter referred to as

<Trial Court=) on a Petition under Guardian and Wards Act for custody

of minor, Nuzhat Jan, bearing Guard Applcn no.18 titled Khalil

Mohammad Hajam v. Sameera Begum, on the grounds made mention

of therein.

2. I have heard learned counsel for parties and considered the matter.

3. A petition under Guardian and Wards Act, as is discernible from the

record on the file, was filed by respondent before the Trial Court, in

which he sought custody of his daughter, as being biological father of

minor Nuzhat Jan. Appellant resisted guardian application of

respondent.

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4. Respondent in support of his application for guardianship produced and

examined four witnesses, besides himself. In rebuttal, appellant

produced and examined three witnesses, besides herself. And by

impugned judgement allowed application of respondent.

5. It is contention of learned counsel for appellant that impugned

judgement has been passed against the facts and circumstances of the

case. It is also contended that Trial Court has considered rights of

parties without considering intervening the minor, her thoughts, her

ideas and wishes as if minor is some sort of property, which is to be

given in custody. It is also averred that welfare of the child, which has

to be of paramount consideration, is to be taken note of by the court,

but in the present case, the Trial Court has not considered the fact that

the welfare of minor will be in the custody of appellant and not that of

respondent.

6. When impugned judgement is analyzed on the edifice of above

submission of learned counsel, it becomes unequivocal from the record

as also from perusal of impugned judgement that the Trial Court has

taken all facets of the matter into consideration and discussed

elaborately all facts and circumstances of the case, including the

statement of witnesses. It also comes to fore that present appellant had

been divorced by respondent and she has remarried and even she has

three issues from her second marriage inasmuch as it was not appellant

looking after the minor but it was maternal grandfather of minor who

was looking after the minor. In such circumstances, it cannot be heard

the Trial Court has not considered the facts and circumstances of the

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case as also evidence on record in its right perspective. The Trial Court

has rightly said that education and day-to-day needs of minor is of

paramount importance, which can be fulfilled by respondent, more

particularly when her mother (appellant herein) has remarried and is

living with her second husband. The Trial Court has also correctly said

that minor can only inherit property of her father and not that of her

grandfather. And it is only after taking into consideration these

important facets of the matter that Trial Court has passed impugned

judgement, which is lucid, luculent and elaborate and does not warrant

any interference and as a corollary thereof, instant Appeal is liable to

be dismissed.

7. For the reasons discussed above, the instant Appeal is dismissed with

connected CM(s). Interim direction, if any, shall stand vacated.

8. Trial Court record along with copy of this judgement be sent down.

(Vinod Chatterji Koul)

Judge

Srinagar

22.06.2021

Ajaz Ahmad, PS

Whether the order is reportable: Yes/No.