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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

on

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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.

on

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)