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IN THE COURT OF THE DISTRICT JUDGE AT JORHAT
Present: Sri Robin Phukan,District Judge, Jorhat.
JUDGMENT IN MISC, (GUARDIANSHIP) NO. 03 OF 2016
Md. Nazib Hussain,Son of Late Hussain Ali,Care of Sri Deben Dutta,Resident of Chandan Nagar, Club Road, P.O. & P.S. Jorhat,District - Jorhat Petitioner
Versus -
Smt. Jafrin Hussain,Wife of Md. Nazib Hussain,Resident of Jail Road, Seujpar Path, P.O. & P.S. Jorhat,District-Jorhat. Opposite Party
: 20-02-2021Date of Hearing
Date of Judgment : 16-03-2021
APPEARANCES:
For the PetitionerSri Biswanath Deb, Advocate, Jorhat
:- Sri Bhabani Prasad Baruah, Advocate, Jorhat
For the O.Ps.
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JUDGMENT
1. This petition, under Section 10 of The Guardian & Wards Act,
VIII of 1890, is filed by Md. Nazib Hussain seeking custody of his minor
daughter & son namely, Miss Sania Hussain and Md. Zunaid Hussain, who are
presently residing with their mother Smt. Zafrin Hussain, the O.P. of the instant
case.
2. The factual background leading to filing of the present petition is
adumbrated as under:-
"The petitioner got married with the O.P.- Smt. Zafrin Hussain as per
Mohammedan Law on 02/10/2002, and, thereafter, lived together as husband
and wife and out of their wedlock a female child namely Sania Hussain was born
13/03/2004. She is presently 12 years old and studying in Class-VI of
Springdale High School, Jorhat, and another male child namely- Md. Zunaid
Hussain was born to them on 10/05/2010, who is presently 6 years old and
studying in KG-2 at Springdale High School, Jorhat. Both the children are, at
present, living with their mother, i.e., the O.P. at Jail Road, Seujpur Path, P.O. &
P.S. Jorhat, District-Jorhat. That on 15/06/2015, the mother of the O.P. has
passed away and then the petitioner accompanied the respondent, along with
their children, to the parental residence of the respondent where the petitioner
attended 'Janaja' of the deceased mother of the O.P. on 16/06/2015. Then on
request of the O.P. the petitioner left the O.P. along with their children at the
parental residence of the O.P. and the O.P. assured to return at the place of the
petitioner, as soon as possible. But, the O.P., instead of returning to her
matrimonial abode, lodged one F.I.R. on 19/06/2015, against the petitioner with
false allegation and accordingly the O/C, Jorhat P.S. registered the same as
Jorhat P.S. Case No. 1266/2015, under Section 498 [A] of IPC, and thereafter
another case was lodged by the O.P. being Jorhat P.S. Case No. 1559/2015,
under Section 406 of IPC. Then he tried his level best to take back the O.P. along
with their children to his fold, but all in vain, and instead, the O.P. refused to
return back and warned him to implicate in false case. Then on 80/09/2015, he
served a Legal Notice through his Advocate to the O.P. requesting her to return
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back to his fold with their children, but the O.P. sent reply refusing to return back
to his fold and asked him to approach the court. Therefore, the petitioner, being
the natural and legal guardian of his children, filed the present petition seeking
custody of the children."
3. On receipt of notice, the Opposite Party, Smt. Zafrin Hussain
entered appearance and has filed objection and has alleged that the petition is
not maintainable; that the petition is bad for non-joinder of necessary parties.
She contended that both the children are living with her under her care and
guidance and she is maintaining both of them. She has further contended that
after the marriage the petitioner and his family members committed serious
inhuman tortures upon her and the petitioner regularly assaulted her while she
was staying at his residence at Jorhat. It is further contended by the O.P. that the
petitioner assaulted her and drove her out of his house. Further contention of the
O.P. is that the petitioner has been enjoying his life with another woman, who is
staying in a rented house near his house. Lastly, she contended that the safety
and welfare of the minor children is not at all safe in the hand of the petitioner.
Therefore, she has contended to dismiss the petition.
4. During hearing, the petitioner examined himself along with his
friend Md. Reez Islam Ahmed. The petitioner was duly cross-examined by the
learned counsel for the O.P. but his friend- Md. Reez Islam Ahmed could not be
cross-examined due to his non appearance. Therefore, his examination-in-chief
stands expunged.
5. It is to be mentioned here that pursuant to order dated
29/01/2021, the O.P. along with their children personally appeared before this
Court and this court got the opportunity to interact with them. Then both the
child categorically stated that they will stay with their mother.
6. Now, the issue to be decided here is
(i) Whether the petitioner, being the natural guardian of the two
minors, presently staying with the O.P., their mother, is entitled
to be appointed as guardian ?
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7.1 have heard the argument of learned Advocates of both sides.
8. Mr. Biswanath Deb, the Id. Counsel for the petitioner submitted
that the petitioner is the natural guardian of both the minors and under the
personal law he is entitled to be appointed as guardian of them. It is further
submitted that both welfare and future of the minors are not secured in the hand
of the O.P. and, therefore, it is contended to allow the petition by appointing him
as guardian of the two minors.
9. Whereas, Mr. Bhabani Pd. Baruah, the Ld. Counsel for the O.P. has
submitted that the O.P. is living apart alongwith her husband, from the petitioner
due to his bad character and for subjecting her to inhuman torture and criminal
cases are pending between them. It is further submitted that the O.P. has been
taking due care of both the minors and also looking after their education and
their welfare and future, and both are secured in her hand. It is further
submitted that this court had the occasion to interact with both the children in
this court and both of them vehemently refused to stay with the petitioner.
Therefore, it is contended to dismiss the petition. Mr. Baruah has referred two
case laws (i) Mrs. Ritika Sharan Vs. Mr. Sujoy Ghosh, Civil Appeal No.
3544-45 of 2020; (ii) Akbal Ahmed Vs. Jamila Khatoon and Another,
First Appeal No. 27 of 2016; in support of his submission.
DECISIONS AND REASONS THEREOF
10. It is now well settled that wellbeing of the minor children is
paramount consideration in determining the prayer of the parties. And the same
is emphasized in both the case laws, i.e. in Mrs. Ritika Sharan Vs. Mr. Sujoy
Ghosh,(supra) and Akbal Ahmed Vs. Jamila Khatoon and Another,
(supra) referred by the Ld. Counsel for the O.P. In Nutun Gautam Vs.
Prakash Gautam, Civil Appeal No. 3409-3410 of 2019 and in Gaurav
Nagpal Vs. Sumedha Nagpal, Civil Appeal No. 5009 of 2007, Hon ble
Supreme Court has expressed similar view. In Rosy Jacob v. Jacob A.
Chakramakkal, (1973) 1 SCC 840, Hon'ble Supreme Court has held that
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object and purpose of 1890 Act is not merely physical custody of the minor, but
due protection of the rights of ward's health, maintenance and education. The
power and duty of the Court under the Act is the welfare of minor. In considering
the question of welfare of minor, due regard has of course to be given to the
right of the father as natural guardian, but, if the custody of the father cannot
promote the welfare of the children, he may be refused such guardianship.
11. Again, in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha
Dolikuka, (1982) 2 SCC 544, Hon'ble Supreme Court reiterated that the only
consideration of the Court in deciding the question of custody of minor should be
the welfare and interest of the minor. And it is the special duty and responsibility
of the Court. Mature thinking is indeed necessary in such situation to decide what
will ensure to the benefit and welfare of the child. In Surinder Kaur Sandhu
(Smt.) v. Harbax Singh Sandhu, (1984) 3 SCC 698, Hon ble Supreme Court
has held that Section 6 of the Act constitutes father as a natural guardian of a
minor son. But that provision cannot supersede the paramount consideration as
to what is conducive to the welfare of the minor. [Ref- Elizabeth Dinshaw
(Mrs.) v. Arvand M. Dinshaw, (1987) 1 SCC 42; Chandrakala Menon
(Mrs.) v. Vipin Menon (Capt), (1993) 2 SCC 6].
12. Section 7 of the Guardians Act deals with 'power of the Court to
make order as to guardianship1 and reads as under:-
7. Power of the Court to make order as to guardianship.
(1) Where the Court is satisfied that it is for the welfare of a minor that
an order should be made-
(a) appointing a guardian of his person or property, or both, or
(b) declaring a person to be such a guardian, the Court may make an
order accordingly.
(2) An order under this section shall imply the removal of any guardian
who has not been appointed by will or other instrument or appointed
or declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or
appointed or declared by the Court, an order under this section
appointing or declaring another person to be guardian in his stead
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shall not be made until the powers of the guardian appointed or
declared as aforesaid have ceased under the provisions of this Act.
13. Section 17 is another material provision and may be reproduced;
"17. Matters to be considered by the Court in appointing guardian.
(1) In appointing or declaring the guardian of a minor, the Court shall,
subject to the provisions of this section, be guided by what,
consistently with the law to which the minor is subject, appears in the
circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court
shall have regard to the age, sex and religion of the minor, the
character and capacity of the proposed guardian and his nearness of
kin to the minor, the wishes, if any, of a deceased parent, and any
existing or previous relations of the proposed guardian with the minor
or his property.
(3) If the minor is old enough to form an intelligent preference, the Court
may consider that preference.
(5) The Court shall not appoint or declare any person to be a guardian
against his will.
14. Having understood the relevant provision and the law, presently
holding the field, now we will proceed to determine the issue in question. It is to
be mentioned here that during hearing the petitioner has submitted his evidence
in affidavit wherein he stated that the respondent is his wife and their marriage
was solemnized on 2-10-2002, under Mohmadan law, and out of the said wed
lock one daughter, namely- Shania Hussain born to them on 13-03-2004, and she
is 13 years old and studying in Class-VI, at Springdale School and one son
namely-Master Junaid Hussain born on 10-05-2010, and he is 7 years old and
studying in Class-I of Springdale High School. He also testified that on account of
death of mother of the respondent on 15-06-2015, he alongwith the respondent
and with their two children went to the parental house of the respondent, where,
after performing the funeral ceremony of the deceased mother of the respondent
on 16-06-2015, he returned home but the respondent refused to come back
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instead on 19-06-2015, she lodged one FIR against him with false and baseless
accusation and, thereafter, lodged another case against him on 22-07-2015, for
returning her stridhan articles. Despite, he tried his level best to take back the
respondent and his children to his residence and finally served legal notice upon
her on 08-09-2015. But, instead of following the direction, the respondent filed a
proceeding u/s 125 Cr.P.C. before the court of learned CJM, Jorhat and since then
the psychological condition of both the children were affected because of the
conduct of the respondent since 16-05-2015, and they are deprived of receiving
his love and affection and even the respondent has not been allowing her to
meet him. It is also stated that because of high handed attitude of the
respondent, welfare of both the children are affected badly and the respondent is
unable to meet the expenditure involving in their maintenance, education, and
welfare and, therefore, he is compelled to approach this court by filing the
petition for being appointed him as legal guardian. It is elicited in his cross-
examination that for the last two years he has been living separately from his
wife and he do not have any problem to maintain his wife, but, he is not allowed
to meet his children. It is also elicited that the maintenance proceeding has
already been disposed of and he has to pay a sum of Rs.5000/- per month being
the maintenance. It is also elicited that he has given all eatable items to his
children and he is prepared to give eatable item to them but he was not allowed
by the respondent. It is also elicited that the earlier petition, filed by him for
guardianship, has already been disposed of and that he has business of
computer materials and repairing and other commission work such PAN card etc.
He denied the defence suggestion that he misbehave with his wife and his
children and assaulted them occasionally for which a police case has been
registered against him.
15. Thus, it appears from the evidence of the petitioner that the
relationship between him and the respondent wife is not good. Both of them
living separately for last two years. Numbers of cases are also pending between
the parties and their children are presently staying with her mother. And both are
pursuing studies in a private school namely Springdale High School at Jorhat.
Though, the respondent/wife has not submitted her evidence in affidavit, yet, it
from the written objection submitted by her that during the period of
are
appearsstaying in the house of the petitioner, she was tortured both physically and
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mentally and because of the unbearable physical and mental torture she was
compelled to leave the house of the petitioner on 15-05-2015, along with their
minor children and she has been taking shelter in the house of her old and aged
mother and the petitioner never visited her mother's house and even after death
of her mother he never accompanied the her to perform 'janaja' and after the
death of her mother the opposite party became helpless and as the petitioner did
not extend any financial help to maintain her and to her minor children for which
she has to approach the learned CJM, Jorhat for granting maintenance, and that
because of the torture meted out to her she lodged one FIR, with the Jorhat P.5.
19-06-2015, upon which a case u/s 498-A IRC was registered against the
petitioner. It also appears that the petitioner has been enjoying his life with
another lady, who resides in a rented house, at the nearest distance and the
minor children of the petitioner knows the fact and when they raise protest for
such misdeed of the petitioner, he subjected them to torture and because of his
worst conduct the minor children are not willing to meet him and they are more
comfortable with her then in the custody of the petitioner, who is a man of rude
behavior and worst character. It is also pointed out by the Id. Counsel for the
respondent during argument that because of the rude behavior and worst
character of the petitioner the respondent and her minor children are not willing
to live with the petitioner.
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16. It is to be mentioned here that my learned predecessor, vide
order dated 16-08-2019, directed the respondent and the two minor children to
remain present in the court and accordingly on 29-01-2021, they appeared
before this Court. And this court got the opportunity to interact with them and
both of them categorically stated that they will stay with their mother. Besides,
having born on 13-03-2004, and 10-05-2010, both the child attained 16 years as
well as 10 years respectively, in the meantime and they are old enough to form
intelligent preference and when interacted they preferred to stay with their
mother, the respondent of this case. In view of above factual position and also in
view of provision of Sub-Section 5 of Section 7 of the Guardianship & Wards Act,
this court cannot appoint the petitioner as the guardian of the minor against their
will.
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17. Though they have not stated any reason for not willing to live
with the petitioner, yet, it is pointed out by the learned counsel for the
respondent, it also appears from the written objection of the respondent that
because of the rude behavior meted out to the respondent and the minor
children and because of the bad character of the petitioner they are not willing to
stay with him. It is an admitted fact that criminal cases are pending between the
petitioner and the respondent. Both the children are growing up and when they
protest to his misdeed of the petitioner, he subjected them to torture and this will
definitely have adverse and deleterious effect upon their mental set up. Under
such circumstances, the petitioner cannot be appointed as the guardian of the
two minor as the same will adversely affect their welfare and wellbeing. The
environment in the house of the petitioner is not at all conducive for their
ordinary contentment, health, education, intellectual development and favorable
surrounding, their physical comfort, the moral and ethical values. In view of
above, and also drawing premises from the decisions of Hon'ble Supreme Court,
in the case laws discussed above, especially in Rosy Jacob vs. Jacob A.
Chakramakkal (supra), we are constraint to dismiss the petition.
18. However, since the petitioner is the father of the two minor
children and since he has not been allowed by the respondent to meet them and
also to provide any eatable to them, this court is inclined to allow him to meet
the two minors during holiday or on week days and he is also allowed to give any
eatable items or other such items, if the minors are willing to accept the same.
Given under my hand and seal of this Court on this 16th day of
& March, 2021.oo
c:Ul o
Typed & transcribed by:
Sri Mrinanyoti Borah, j02/e2Dc2,l (Stenographer Grade-I)