Gaurdian and coustody for muslim husband.
Suresh Babu Rai
(Querist) 23 August 2015
This query is : Resolved
Respected Experts!
The wife ‘C’ (late) of my client ‘D’ was the only daughter of A & B, whose marriage was performed on 17.01.2014 as per the customs and traditions prevailing in the Muslim community, the C & D blessed with a female ‘E’ (Minor, born on 27.11.2014, now aged 4 months). C was suffering from breast cancer, but A & B suppressed the same and got the marriage. The Gynecologist diagnosed informed that since past a year, C was suffering with the cancer and C died due to cancer on 19.12.2014 i.e, after three weeks of her caesarian.
The last ceremonies performed and D very much attended. A & B, soon after the death of C changed their color and abused D for one or other reason even there is no fault of him. They forcibly took the custody of E from D and refused to handover. That since the date of death of the C, the E is with the A & B. There would be no welfare for E, if she continued with the A & B as the B is also suffering with the similar cancer and bed ridden. A & B are senior citizens. That the best interest and bright future of E demands that she should be placed under the care and custody of D immediately and further D being the fit and proper person entitled to act as guardian of E. Moreover, E is the only legal heir to the family D and there is no other child born. D repeatedly requested the A & B to place the care and custody of the E to D for her bright career and future, but the AB without any reasonable or probable cause refused to do so. D got issued a legal notice demanding the AB to place the minor child within ten (10) days from the date of receipt of legal notice. The AB tendered a reply notice wherein refused to place the custody of E into the hands D. As such I have approached court of law against the AB U/Sec. 10 and Sec. 25 of Guardians and Words Act-1890.
The AB appeared before the court and denied all the contents of my petition and more particularly alleged that “ the legal position laid down by all courts including the apex court that the principles in the relations to custody of the minor child are well settled in determining the questions as to whom should given priority who should be given custody, the paramount consideration is the welfare of the child and not rights of the parties under statue. That according to the ‘Guardianship’ under the Mohammadan law (Shariath) mothers mother is entitled custody in order to priority and therefore the B is entities to the custody of minor in question”.
But so far no such option or judgment is exists till to date! Is it so sir!
Thank you one and all!
SAINATH DEVALLA
(Expert) 24 August 2015
Generally maternal grandparents have the right to custody of the infant grand daughter,till she attains the age where in she can choose an option where to live.The father shall have visiting rights and also the maintenance of the child.
Even under muslim law the following are entitled of the girl child in the absence of mother:
1. maternal grandmother
2. maternal great grandmother
3. maternal aunt and great aunt
4. full sister
5. uterine sister
6. consanguine sister
7. paternal aunt.
KARNATAKA HC ENDS A CHILD WITH MATERNAL GRANDPARENTS AND REJECTS FATHER'S PLEA:
BANGALORE: In an interesting case pertaining to the issue of guardianship, the Karnataka high court has sent a six-year old girl child with her maternal grandfather while rejecting the plea put forward by her father seeking for custody.
"Having regard to the paramount consideration of the welfare of the child, we feel that the custody of the child is safe in the hands of the respondent (grandfather).The child is six years and she is well acquainted with the environment and surrounding circumstances and living happily with the grandparents.So,we do not prefer to interfere at this stage nor there are merits in the appeal" the division bench comprising Justices N K Patil and B V Pinto have observed in their order.
The bench rejected the miscellaneous first appeal(MFA) filed by one V Niranjan, a resident of Bangalore city and the father of the girl.He has filed the appeal under the Guardian and Wards Act, 1890 seeking custody of his daughter. The family court had rejected his petition on the same issue on December 15,2009.
Father's promise Niranjan in his petition has promised that he will give good education to the child and admit her in good school.He also claimed that there are possibilities that his daughter may forget that he was her father.He also stated that even today, his daughter has no name and no suchceremony was held to enable him to participate.Having remarried, he contended that he can look after the child well. Grandpa's take
However, Veerasiddaiah, grandfather of the child claimed that his son-in law never bothered to come when the girl was born, even though it was intimated to him and he looked after her since her birth.
He further contended that the petition was filed by him just to to grab the property, gold ornaments and utensils belonging to his daughter V Veena , who died of cancer. He also promised to the court that he will give good education to his grand daughter.
The family court had given visiting rights to the father to take out the child on Saturdays and return her on Sunday. Niranjan had married Veena in March,2005 in a Kalyana Mantap in the city.They lived happily and the girl was born in August 2006.
Suresh Babu Rai
(Querist) 24 August 2015
Good Morning Sir!
Sorry for not disclosing the one more fact1
My client before institution of petition that a Fatwa was passed by the community elders, wherein the elders found that as the grandmother of the child is suffering with breast cancer too, the father of the child is entitled to act as guardian.
I am going to file such Fatwa in support of my claim.
SAINATH DEVALLA
(Expert) 24 August 2015
In my earlier reply the heading should be read as KARNATAKA HC SENDS A CHILD WITH MATERNAL GRANDPARENTS (typing error)
SAINATH DEVALLA
(Expert) 24 August 2015
FATWA HAS NO LEGAL SANCTION ACCORDING TO THE SUPREME COURT,Dated: 7th July 2014
The Supreme Court on Monday ruled that fatwas have no legal sanction. The apex court said that either Darul Qaza or any mufti cannot issue fatwas and try to enforce against a person who has not approached for religious opinion.
The SC said religion or faith cannot be used to victimize innocents.
The SC said no law has given any recognition to fatwas.
The apex court cited the Imrana case and said fatwas can cause irreparable damage to the rights of an individual.
The SC said though religious opinion as fatwas have a laudable object, it cannot be enforced the moment it breaches the fundamental rights of a person.
A bench headed by Justice C K Prasad said that no religion, including Islam, allows punishing innocent persons and ordered that no 'Darul Qaza' should give verdict which affects rights of a person who is not before it.
The court passed the verdict on a PIL filed by advocate Vishwa Lochan Madam questioning the constitutional validity of Shariat courts which allegedly run a parallel judicial system in the country.
Rajendra K Goyal
(Expert) 24 August 2015
Bring the fact of cancer to the file of the court and prey custody for the welfare of the child.
Suresh Babu Rai
(Querist) 24 August 2015
Though it is very sad to examine a cancer patient in the witness box, hurdle, I have asked my client to collect her medical prescriptions and reports. I thought that, if approach the court of law the matter will be settled in amicable manner, but the AB choose to prosecute the matter.
