C.M Nayar, J.:— The present petition is directed against the Order dated 15th November, 1994 of Shri V. K. Malhotra, Guardian Judge, Delhi. The learned Judge declined to grant interim custody of the minor child, Master Omar Azhar to the petitioner and dismissed the application under Section 12 of the Guardians and Wards Act.
2. The petitioner was married to respondent no. 1 on March 20, 1990. The said respondent was earlier married and divorced. The male child, Omar Azhar was born in the wedlock between the petitioner and respondent no. 1 on 7th April, 1992. The averments are made by the petitioner that the respondents and their family members started behaving indifferently towards her and the minor child and refused to maintain her. The other instances of misbehaviour have been cited but it will not be necessary to refer to the same in the present case as they are not relevant at this stage. The petitioner further contends that on 28th July, 1994 respondent no. 1 pronounced ‘Talak’ and executed a ‘Khoola’ and also got an agreement of the same date signed by the petitioner wherein she allegedly gave up her right of custody of the minor child Omar Azhar. The relevant clauses of the agreement read as follows:
2. That both the parties have settled their DOWAR and the second party shall not make any claim in any court of law relating to her claim of dowar amount,
3. That at the time of marriage, the second party had not brought the dowry items and as such, both the parties have settled their claim relating to ISHTRIDHAN and the second party shall not claim anything relating to her ISHTRIDHAN in any court of law.
4. That the second party has further agreed not to claim anything relating to the maintenance, past, present or future against the first party and the second party accordingly, shall not initiate any proceedings in any court of law for claiming maintenance from the first party.
5. That the aforesaid child Omar Azhar who is minor and aged about 2 years and 3 months shall remain in the custody of the first party, namely, Azhar Ali Zai, as per the desire of the second party and the first party shall bring him up in accordance with his own wishes, without any intereference from the second party or any member of her family.
6. That both the parties have agreed that they shall not resort to legal proceedings on any matter connecting relating to or arising out of the said marriage and the divorce and the dispute if any, arises, shall be resolved mutually out of the court, and also will not persue any proceeding or claim filed in the past.
3. The petitioner thereafter moved the Guardian Judge, Delhi by filing petition under Section 25 of the Guardians and Wards Act for custody of the minor child, Omar Azhar. This petition is dated 13th September, 1994. The petitioner contended that the minor son is presently in the custody of respondent who was employed in Royal Flight Operations, Saudia, Jeddah, Saudi Arabia. The petitioner was forced to leave her matrimonial home and to sign the agreement and in view of the temperamental incompatibility the petitioner and respondent no. 1 voluntarily decided to get the marriage dissolved by way of ‘Khoola’ and respondent no. 1 pronounced ‘Talak’ to the petitioner as provided by the provisions of Shariyat Laws. The agreement of 28th July, 1994 was entered into between the parties which gives the custody of the minor son to the father, respondent no. 1. The learned Guardian Judge relied upon the agreement between the parties and disposed of the petition under Section 12 of the Guardians and Wards Act by holding that the petitioner had voluntarily handed over the custody of the minor to the respondent in terms of para 5 of the Deed of Agreement dated 28th July, 1994 and therefore, she cannot deny the terms and she is estopped from doing so. The custody of the minor child is with respondent no. 1 in furtherance of the terms of the agreement and an order to the contrary will amount to bye-passing the deed of agreement as agreed between the parties which is beyond the jurisdiction of the Guardian Court. The Guardian Judge did not advert to any other pleadings and law to adjudicate upon the matter with regard to the interim custody and solely dismissed the petition on the ground that the petitioner was bound by the agreement as aforesaid.
4. The parties are governed by Mahomedan Law where the father is held to be the natural guardian. The right of mother to custody (hizanat) of male child is however recognised until the male child has completed the age of 7 years and of her female child until she has attained poperty. The relevant provisions as contained in sections 352 and 354 from Mulla's Mahomedan Law may be reproduced as under:
352. Right of mother to custody of infant children: The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father (f).
354. Females when disqualified for custody: A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody.
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4. if she neglects to take proper care of the child.
5. The law is well settled with regard to the right of the petitioner for custody of male child till the child completes the age of 7 years. In this connection reference may be made to the judgment reported as Imamabandi & Ors. v. Haji Mutsaddi & Ors. AIR 1918 (1) Privy Council 11 which reiterates that under the Mohamedan Law, the mother is entitled only to the custody of the person of her minor child to a certain age according to the sex of the child. But she is not the natural guardian; the father alone, or, if he be dead, his executor (under the Sunni Law), is the legal guardian.” Similar view is expressed in the judgments in Mohammad Shafi v. Shamin Banoo AIR 1979 Bombay 156(2) and Khurshid Gauhar v. Siddiqunnisa AIR 1986 Allahabad 314(3). These judgments reiterate the proposition that the mother's right of Hizanat is not lost by the fact that mother has been divorced and is living away from husband. The right of the father to the custody of the child is deferred, and the primary right is in the mother and in absence of the mother in other family heirs. The learned counsel for respondent no. 1 has merely contended that the petitioner mother has herself abandoned the child and is not entitled to the custody as she willingly executed ‘Khoola’. Therefore, she should not be given the interim custody as she is disqualified in terms of Section 354 as cited above from Mulla's Mahomedan Law. He has further relied on the judgment of the Privy Council as reported in Moore's Indian Appeals Volume VIII (1859—61) 234 to canvass the following proposition (at page 244):
“A divorce by ‘Khoola’ is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. In such a case the terms of the bargain are matter of arrangement between the husband and wife, and the wife may, as the consideration, release her ‘dynmohr’ and other rights, or make any other agreement for the benefit of the husband.”
It is accordingly argued that she is not entitled to the custody on the above basis as she is deemed to have abandoned the child in favour of the respondent, he right of the petitioner in view of the settled position of law for custody of the minor son is clearly recognised. The agreement between the parties cannot in any manner take away that right which is established except when the court is of the view that this will not be in the interest of the minor child. The mother in that situation may be deprived of the custody if the evidence on record shows that it will not be in the interest of the minor to give the minor the custody of the mother. If there is a conflict between the Personal Law to which the minor is subject and the consideration of the minor's welfare, the later must prevail. In this connection reference may be made to the judgments as referred in Mst. Bibi Saira Khatoon v. Mst. Bibi Shahidan Khatoon. AIR 1978 Potna 285, (4) S. Rehan Fatima v. Syed Badinudin Pariviz AIR 1984(5) Andhra Pradesh 1 and Khurshid Gauhar v. Sidthqunnisa AIR 1986 Allahabad 314(6).
6. The parties have appeared before me and it is not contended that the petitioner mother is any way disqualified to have custody of the child. It is only argued that she herself abandoned the child and she may not now be granted his custody. I am satisfied on the facts of this case that welfare of the child lies with her mother, petitioner herein. He needs motherly love and care for his proper development and growth. There is no averment which is made either by the counsel or by respondent no. 1 in court that the petitioner is disqualified to be granted the interim custody. It is only pleaded that she willingly entered into an agreement to give the custody to respondent no. 1 and, therefore, it may be held that she neglected to take proper care of the child. The petitioner is present in court along with her mother. They are very keen and willing to be granted interim custody as they have undertaken to accept their responsibility to look after the child. Taking an overall view of the facts of the present case I am quite satisfied that the appropriate course would be to grant interim custody of Master Omar Azhar to the petitioner mother as he is of a tender age of three and a half years and will require her love and care. There is no doubt that respondent no. 1 who is the father has displayed keenness and deep desire to continue with the custody of the child. There cannot be any doubt that he is equally attached to the child. He is working abroad and the proceedings under the Guardians and Wards Act are pending in the court of appropriate jurisdiction in Delhi. In the first instance it was stated by his counsel that the child is studying in a good school in Jeddah, Saudi Arabia and respondent No. 1 will take the child along with him. In normal circumstances interim custdoy cannot be granted to respondent father as he displayed his intention of taking the child out of India. The Guardian Court is vitally concerned with the protection of the child and it is for this reason that ward is required whenever necessary to remain within the jurisdiction of the court which appoints a guardian for him (Trine Hoist Thomsen v. The Children's National Institute— AIR 1974 Allahabad 95)(7). Faced with their situation the learned counsel for respondent No. 1 made a statement that respondent No. 1 is quite willing to keep the child in India so long as the guardianship proceedings are not concluded. The minor could well be more comfortable in the company of the petitioner and it will be more congenial for his happiness and growth. The mother of the petitioner is also present in court and she additionally accepts the responsibility to take care of the minor grandson.
7. The Guardian Judge in the above background Post sight of the basic provisions of law with regard to custody of minor child and dismissed the application of the petitioner merely on the ground of the agreement which granted custody to respondent No. 1. The judgment accordingly has to be set aside as it amounts to exercise of jurisdiction illegally in breach of the provisions of law as referred to in the earlier part of this judgment. The mother in any case is entitled to the temporary custody till the minor child attains the age of 7 years. The question of welfare of the child is yet to be fully determined and this judgment will not be considered as an expression of opinion on the merits of the main petition which is already pending. Prima facie, I am of the view that the welfare of the child will demand that the custody be granted to the petitioner. The respondent accordingly shall restore the custody of the minor child Omar Azhar to the petitioner on or before 23rd October, 1995. I cannot loose sight of the love and affection which respondent No. 1 has for his son. He is the father and natural guardian and, “therefore, cannot he denied access to the child whom he has looked after and cared for. He shall be entitled to visitation rights as often as he desires and these shall not be denied to him. The learned counsel for the petitioner has very fairly conceded that the respondent shall have access to his son as and when he visits India and he may also take him during weekends and vacations. The relations of respondent No. 1 such as the mother, sisters and brother shall also have similar rights to visit the minor child and take him during vacations and weekends.
8. I hope the child may ultimately prove to bring both the parents together and restoration of matrimonial status between the parties. For the aforesaid reasons the revision petition is allowed. There will be no order as to costs.
9. The Guardian Judge shall dispose of the matter as expeditiously as possible and within a period of six months.
D.V Petition allowed.
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