Date of judgement:
9th March, 2022
Bench:
GOUTAM BHADURI and RAJANI DUBEY
Parties:
Appellants –Irfan Ur Rahim Khan
Respondents – Smt. Farha Khan
SUBJECT
An appeal was filed by the appellant husband against the order of the Family Court which rejected his claim for the custody of the children and held that the children must stay in the custody of the respondent wife.
OVERVIEW
- The applicant husband and the non-applicant mother were married to each other and had two children - one daughter and one son.
- However, later their relations became estranged and the mother started living separately with her children. The father used to visit the children periodically.
- However, the husband contended that since the wife was not able to take care of the children, he was handed over the custody of the children. Subsequently the custody of children was given to him by a settlement deed.
- The respondent was given 10 lakhs as final settlement for divorce.
- However, after some time, the respondent took the custody of the minor daughter.
- An appeal was filed by the father before the Trial Court.
- The appellant contended that the wife did not perform any religious rituals and did not have any source of income. She lived in a rented house and had threatened the appellant that she would implicate him in a false case by committing suicide.
- The respondent, on the other hand, pleaded that she had separated from her husband due to the cruelty that was inflicted upon her and the custody of the children was given to the appellant only for a week owing to the pressure that he was putting on the appellant. Further, the respondents alleged that the appellant had narrated to her that she was his second wife and the divorce with her first wife was not effected.
- The Trial Court found that the Supreme welfare of the children was in staying in the respondent's custody and hence dismissed the appeal by the appellant.
APPELLANT'S ARGUMENTS
- The appellant contended that the Trial Court passed it's order in ignorance of the agreement that was reached between the appellant and the respondent.
- Furthermore, the appellant contended that the respondent had herself agreed, by virtue of the settlement deed, that the father was in a better position to take care of the children. The father had a stable job too.
RESPONDENT'S ARGUMENT
- The respondent contended that the settlement deed was based on fraud and despite the deed, the children had continued to stay with her.
- Furthermore, the children had also expressed their desire to stay with the mother.
RELEVANT PROVISIONS
Guardians and wards Act, 1890
- Section 4: Definition of Minor
- Section 7: Power of Court to make order as to guardianship
ISSUES RAISED
- Whether the welfare of the children was in the custody of the respondent mother or the appellant father?
JUDGMENT ANALYSIS
- The High Court relied on several judgments such as Mousami Moitra Ganguli v. Jayanti Ganguli AIR 2008 7 SCC 673,Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42 etc, and noted that the paramount consideration is to be given to the child's welfare and not the parents' statutory rights.
- Furthermore, the Court relied on the judgment of M.K. Hari Govindan v. A.R. Rajaram reported in 36 2003 OnLine Mad 48 and observed that child's custody cannot be merely decided upon "documents, oral evidence or precedents without reference to “human touch”.
- The Court held that children cannot be treated as commodity in the battle between the parents and the Court cannot overlook the children's interests merely because of the settlement deed.
- Furthermore, the settlement deed was never acted upon.
- The Court observed that since the wife lived with her family, the respondent's family members could look after the children in her absence. On the other hand, the appellant lived alone and hence, in his absence, the children would be left with the servants alone.
- Furthermore, the daughter, upon growing up, would be needing the company of her mother and other female family members, which she would not be able to get in the appellant's custody. Thus, it seemed logical that the children should stay with the respondent wife.
- The mother's income tax return statement showed that she had a reasonable income.
- Most importantly, the children had also expressed their desire to stay with their mother. The Court found that the children were "old enough to form an intelligent preference to be in the custody of the mother".
- The Court held that welfare of children would prevail over the provisions of the personal laws.
CONCLUSION
The Court rightly held that the welfare of the children is the primary concern of paramount interests which supersedes the parents' statutory rights. The Court thus upheld the judgment of the Trial Court. Furthermore, the Court also determined the visitation rights of the appellant father.
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