C.M.A.(MD).No.938 of 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 05.04.2023

CORAM:

THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR

C.M.A(MD)No.938 of 2017

and

C.M.P(MD) No.9896 of 2017

A.Abitha Rahman

.....Appellant/Respondent

-vs-

A.Shiek Mujibur Rahman

.... Respondent/ Petitioner

PRAYER: Civil Miscellaneous Appeal filed under Section 47 of Guardian

Wardship Act, 1890, against the fair and decretal order dated 13.09.2017

made in G.W.O.P.No.193 of 2014 on the file of Principal District Court,

Tuticorin.

For Appellant

: Mr.M.Mohammed Ibram Saibu

For M/s.Ajmal Associates

For Respondent

: Mr.M.P.Senthil

J U D G M E N T

The present Civil Miscellaneous Appeal has been filed by the

mother/appellant challenging the order of the Principal District Court,

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C.M.A.(MD).No.938 of 2017

Tuticorin, passed in G.W.O.P.No.193 of 2014, wherein, the guardianship of

two minor sons was handed over to the father.

2. The respondent herein had filed G.W.O.P.No.193 of 2014, before the

Principal District Court, Tuticorin, seeking custody of two minor sons from

the mother viz., appellant herein. At the time of filing of G.W.O.P.No.193 of

2014, the elder son was aged about 10 years and the younger son was aged

about 9 years. According to the father, he is Imam in a Mosque and he seeks

the custody of both the minor sons from the mother.

3. The mother had filed a detailed counter contending that the father is

not properly taking care of the sons and they are residing separately. The sons

being very tender in age, they should be with the mother and she is taking

care of the minor sons properly. She had also made some allegations that the

father had married another lady in the year 2009 and therefore, the custody of

the minor sons should not be handed over to the father.

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C.M.A.(MD).No.938 of 2017

4. The learned Principal District Judge, Tuticorin, had arrived at the

following findings:

(i) The mother had already given a Kula and she had remarried one

Sulthan and she had got three children through her second husband.

Therefore, the mother is taking care of five children along with the two minor

sons whose custody is in dispute in the present appeal.

(ii) Though the husband has taken a stand that unilaterally, the wife had

given Kula (Divorce), the husband has not initiated any further proceedings

for the cancellation of the said Kula.

(iii) The husband/father is residing at Chennai and he is an Imam in a

Pallivasal and he has also got remarried to one Fathima Beevi. Though it is

alleged by the wife that it is an illicit intimacy, according to the husband, he

entered into the second marriage only with the permission of his first wife.

(iv) Both the minor sons were produced before the Court and the Court

enquired them on 15.03.2017. Both the minors have expressed that they are

not willing to go with their father and they expressed their willingness to

continue in the custody of their mother.

(v) The Court had again called them in the Chamber and they have

expressed their intention to reside with their mother. However, the trial Court

felt that they have been tutored by the mother.

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C.M.A.(MD).No.938 of 2017

(vi) The trial Court relied upon Section 352 of the Mohammedan Law

to arrive at a conclusion that the mother is entitled to have the custody of the

child up to seven years old.

(vii) The trial Court further found that when the dispute is between the

father and the mother, only the welfare of the minor should be predominant

and the rights of father and mother cannot be considered.

(viii) The trial Court further found that the mother is already having the

custody of five children and she has not established her financial background

in order to take care of all the five children.

(ix) However, the father being an Imam in a Pallivasal, he will have a

better opportuni